Unsolicited supply involves receiving goods or services without a prior request or authorisation. This guide will explain your rights and obligations under Australian Consumer Law (ACL) and how to handle unsolicited supplies effectively.
What Does Unsolicited Supply Mean?
Have you ever received a parcel you did not order or a service you did not request, with a demand for payment? Unsolicited supplies refer to these unrequested goods or services. Under the ACL, it is illegal for suppliers to request payment for goods or services not agreed upon by the consumer.
Unsolicited Supply of Goods
An unsolicited supply of goods occurs when you receive items without ordering them. The ACL specifies that you are not liable to pay for unsolicited goods or any resulting loss or damage, unless you wilfully damage them within the recovery period.
Key Points of Section 41 of the ACL
- You are not required to pay for unsolicited goods.
- You are not responsible for loss or damage unless it results from wilful and unlawful actions.
- After the recovery period, the goods become your property if not collected by the supplier.
The recovery period is either three months from receipt or one month after notifying the supplier in writing.
Recovery Period
If you receive unsolicited goods, the supplier has three months to recover them, reduced to one month with written notice from you. After this period, the goods become your property without any obligation to pay.
Exceptions
- You must not unreasonably refuse the supplier’s attempt to collect the goods.
- You cannot keep goods clearly intended for someone else.
Issuing Invoices for Unsolicited Goods or Services
Suppliers must not issue invoices demanding payment for unsolicited goods or services unless they believe they have a legitimate right to payment. Any invoice must include a prominent warning: ‘This is not a bill. You are not required to pay any money.’
Unsolicited Supply of Services
Unsolicited services refer to those provided without a consumer’s request. Under the ACL, you do not have to pay for unsolicited services or any associated loss or damage.
Key Points of Section 40 of the ACL
- Suppliers must not assert a right to payment for unsolicited services unless they have a reasonable cause.
- Suppliers cannot send invoices for unsolicited services without a clear warning statement.
Example of Unsolicited Services
Sarah requested an oil change and brake replacement for $700. The mechanic performed an additional wheel alignment without her consent and charged $500 extra. Sarah is not obligated to pay for the unsolicited service.
Example of Solicited Services
Mark requested an oil change and brake replacement for $700. The mechanic offered an additional wheel alignment, which Mark agreed to. The total charge was $1,200, and Mark is required to pay the additional cost.
Unsolicited Consumer Agreements
An unsolicited consumer agreement occurs when a supplier contacts you without invitation, negotiating terms outside their business premises or via phone.
Key Elements of Section 69(1) of the ACL
- Agreement must result from unsolicited contact.
- Negotiations must occur in person or by phone, not at the supplier’s business premises.
- The consumer must not have invited the contact.
- The total price must exceed $100 or be undetermined at the agreement’s time.
Suppliers must provide a copy of the agreement to the consumer, including a clear notice of the right to terminate the agreement.
Unsolicited Supply of Credit or Debit Cards
Unsolicited credit or debit cards are those issued without the consumer’s request. The ACL prohibits sending these cards unless requested in writing or as a replacement for an existing card.
Key Elements of Section 39 of the ACL
- Cards must not be sent without a written request or as a replacement.
- Unsolicited cards should not be issued without explicit consumer consent.
Action
To avoid being caught in the trap of unsolicited supply:
- Do not pay for unsolicited goods or services.
- Notify the supplier in writing if you receive unsolicited goods.
- Allow the supplier to collect the goods within the recovery period.
- Report any violations to the ACCC.
Cases
- Australian Competition and Consumer Commission v Artorios Ink Co Pty Ltd (No 2) [2013] FCA 1292
Artorios Ink was penalised for demanding payment for unsolicited goods, emphasising the enforcement of ACL provisions.
- Australian Competition and Consumer Commission v Neighbourhood Energy Pty Ltd [2012] FCA 1357
Companies were fined for illegal door-to-door sales practices and failing to provide agreement copies, illustrating the importance of compliance with ACL.
Seeking Advice
If you encounter unsolicited supplies or have any doubts about your rights and obligations under the ACL, Fox Piper can provide expert legal advice and assistance. Our team of experienced professionals is ready to help you navigate these situations, ensuring your consumer rights are protected. We offer comprehensive support to handle any disputes and guide you through the process of dealing with unsolicited supplies effectively.
Conclusion
Understanding your rights regarding unsolicited supplies is crucial to avoid falling into legal traps. The ACL provides robust protection for consumers, ensuring that you are not obligated to pay for goods or services you did not request. By knowing the regulations and your obligations, you can confidently handle these situations. Should you require any assistance, do not hesitate to seek professional advice from Fox Piper to safeguard your interests and ensure compliance with the law.
