Consumer guarantee directions

About consumer guarantee directions

We can help consumers and businesses resolve complaints effectively and efficiently. This can be a preferable alternative to the often costly and lengthy process of courts or tribunals. 

If a dispute has gone through our dispute resolution process without success, the consumer can request a ‘consumer guarantee direction’. This direction is issued by NSW Fair Trading to the business. It requires the business to repair, replace or refund the product. 
 

The dispute resolution process

Dispute resolution and consumer guarantee directions all follow a 7-step process:

1. A consumer makes a complaint to NSW Fair Trading about a product (not a service).
2. We contact both parties to help resolve the dispute.
3. If there is no outcome, the consumer is advised of their options. These options includes requesting a consumer guarantee direction. The consumer has 30 days to make that request.
4. We assess the request to see if it meets the eligibility criteria.
5. We contact both parties to invite them to make written submissions about the complaint. The information we receive is then shared with the other party, so that they have a chance to respond.
6. With that information, we then assess the request. We decide whether to make a direction. The consumer and business are contacted with information about the decision.
7. If we decided to go ahead with a consumer guarantee direction, that direction is issued to the business.

At any time, however, the business and consumer can reach a resolution between themselves. Visit Resolving issues for advice on how to resolve a complaint.
 

Eligibility criteria

To be eligible for a consumer guarantee direction, a dispute must meet these criteria:

• The matter was lodged with NSW Fair Trading. It progressed through the complaint-handling process and no outcome was reached in accordance with the Australian Consumer Law (ACL).
• The dispute is about a product.
• The product has a purchase price between $25-$3,000 (excluding GST).
• The product was purchased within the 6 months before the consumer made a complaint to NSW Fair Trading.
• Both the consumer and business are based in NSW. Note: corporations only need to have a presence in Australia and are not required to be based in the state.
• It is a dispute about an ACL consumer guarantee. It must relate to:
  • the acceptable quality of the product
  • the product being fit for its disclosed purpose
  • the supply of goods by description
  • the product matching the description, sample or demonstration model.

Matters that are not eligible include disputes about:

• false and misleading representations
• unsolicited sales or bait advertising
• excluded products, such as:
  • motor vehicles
  • a component part of a motor vehicle
  • second-hand goods
  • solar batteries
  • a product relating to a home building claim
  • a product that is the subject of a review by a court or the NSW Civil and Administrative Tribunal (the Tribunal).
     

Our process for assessing whether to issue a direction

As part of the assessment process, we ask the business and consumer to provide additional written information about the dispute. We also give the opportunity to respond to that information provided by the other party.

When we decide whether to issue a direction, we:

• identify which of the consumer guarantees is relevant to the dispute. For more information, you can visit the ACL Consumer guarantees.
• assess whether the business has failed to comply with these consumer guarantees
• determine whether it is a major or minor failure, and identify the appropriate remedy (a refund, replacement or repair).

If we decide to make a direction, it will order the business to repair, replace or refund the purchase price of the product. Our direction will also include a monetary value, even if the direction is to repair or replace the product.

We will contact both parties about the decision.
 

After a direction has been made

If we make a consumer guarantee direction, the business must comply.

If the business or consumer disagrees with the direction, either can apply to the Tribunal to have the dispute reassessed. 

The NSW Fair Trading Commissioner may also publish the direction where the business does not comply.
 

When a business does not comply with a direction

A business must comply with a direction within 28 days, or another period specified in the direction. If this does not happen, the consumer can register the direction in the Local Court as a judgement debt and apply to have the direction enforced.

You can do this by either:

1. completing a form on the Uniform Civil Procedure Rules website. Select Form 45, or the form titled “Registration/filing of certificate of judgment or order”. You can print out the form or fill it in online. For more information about how to do this, visit the NSW Legal Aid website.
2. enforcing the judgment through your Local Court. For information about how to do this, visit the NSW Legal Aid website.

You should get legal advice before applying to enforce a judgment debt. There are different ways you can enforce a judgment. It is important to think about which option best suits your situation.

The types of enforcement you can choose include:

• asking the sheriff to seize and sell property belonging to the business (this is called a ‘writ for the levy of property’)
• having money deducted directly from the business’s bank account (this is called a ‘garnishee order’)
• issuing an examination notice requiring the business to provide information about its finances (this is called an ‘examination’). This occurs before you seek a garnishee order, if you need further information about the business’s finances.

For a step-by-step guide on how to proceed with enforcement, visit the NSW Legal Aid website.

You have 6 years to start court proceedings to recover money or goods. If you are not sure when your time limit begins, seek legal advice