Brus Australia Pty Ltd, trading as 'Techrific' and Hendrik ...
CONSUMER AFFAIRS VICTORIA
ENFORCEABLE UNDERTAKING
PURSUANT TO SECTION 218 OF THE AUSTRALIAN CONSUMER LAW (VICTORIA)
The commitments in this undertaking are offered to the Director of Consumer Affairs Victoria by the following:
BRUS Australia Pty Ltd t/as ‘Techrific’
(ACN 150 976 471)
of: 26 Spinnaker Rise Point Cook, Victoria (“the company”)
– AND –
HENDRYK WIJAYA
of: 26 Spinnaker Rise Point Cook, Victoria
BACKGROUND
1. The relevant period is 19 October 2011 to 24 January 2013.
2. During the relevant period, the company was:
a) and remains, a corporation, duly incorporated under Australian law;
b) engaged, in Victoria, in the business of supplying electronic consumer goods.
3. Hendryk Wijaya was throughout the relevant period and remains:
a) an officer of the company; and
b) responsible for:
i) conducting and managing the day-to-day activities of the company; and
ii) monitoring and supervising the financial performance of the company.
4. The Director of Consumer Affairs Victoria is empowered by section 109 of the Australian Consumer Law and Fair Trading Act 2012 to, inter alia:
a) monitor compliance with the Australian Consumer Law (Vic.) [ACL (Vic.)];
b) inquire into and investigate breaches of the ACL (Vic.);
c) prosecute breaches of the ACL (Vic.);
d) institute proceedings to achieve the purposes of the ACL (Vic.).
INQUIRIES MADE BY CONSUMER AFFAIRS VICTORIA
5. Pursuant to the powers listed above, investigators with Consumer Affairs Victoria commenced an investigation on 26 July 2012 into the conduct of the company during the relevant period.
6. As a consequence of inquiries undertaken in the course of this investigation, Consumer Affairs Victoria received information that the company had, in trade or commerce:
a) Published on its website offering electronic consumer goods on or about 19 October 2011, a statement purporting to be a warranty against defects that did not comply with the consumer guarantee requirements of the ACL by failing to include the prescribed wording as required by the ACL, and:
b) Published a warranty that sought to limit returns within 7 days of receipt, to require defective items be returned with original packaging, accessories and documentation, and sought to charge 15 percent for any missing items, and;
c) Had purported to consumers who made claims for major failures of goods supplied by the company, that refunds were not available upon return of the rejected goods.
Express consumer warranties against defects, which cannot be excluded, are bestowed by section 102 of the ACL and the remedies expressly conferred by Regulation 90 of the Competition and Consumer Regulations 2010.
CONTRAVENTIONS OF THE AUSTRALIAN CONSUMER LAW (VICTORIA)
7. The Director Consumer Affairs Victoria considers that by engaging in the conduct referred to in paragraph 6 above the company has contravened sections 29(1)(m), 102, 151(1)(m), and 192 of the ACL (Vic.).
8. Further, insofar as the conduct referred to above was engaged in by the company, the Director of Consumer Affairs Victoria alleges that Hendryk Wijaya at all times:
a) managed and conducted the activities of the company; and either
b) had actual knowledge of the conduct referred to in paragraph 6 above; or
c) ought to have known of the conduct referred to in paragraph 6 above.
9. The Director of Consumer Affairs Victoria alleges that Hendryk Wijaya:
a) aided and abetted;
b) counselled or procured; and / or
c) was knowingly concerned in and a party to –
each of the contraventions as set forth in paragraph 7 above.
ACKNOWLEDGEMENT OF THE CONTRAVENTIONS
10. The company and Hendryk Wijaya acknowledge that the conduct referred to in paragraph 5 above is alleged by the Director to have contravened sections 29(1)(m), 102, 151(1)(m), and 192 of the ACL (Vic.). The company and Hendryk Wijaya seek to address these alleged contraventions by offering this Undertaking to the Director pursuant to section 218 of the ACL (Vic.).
A STATEMENT THAT THE CONDUCT HAS STOPPED
11. The company and Hendryk Wijaya hereby confirm that they have rectified the statements on its website and have included the prescribed wording of Regulation 90 of the Competition and Consumer Regulations 2010 as required by Section 102 of the ACL (Vic).
12. The company and Hendryk Wijaya hereby acknowledge that they are aware of the provisions of the ACL (Vic) sections 29(1)(m), 102, 151(1)(m), and 192.
UNDERTAKINGS
13. The company and Hendryk Wijaya undertake to the Director of Consumer Affairs Victoria, pursuant to section 218 of the ACL (Vic) that they will from the commencement date of this Enforceable Undertaking:
a) Within 14 days cause a Notice to be displayed continuously, prominently and conspicuously, in the form of Schedule A to this undertaking, for a period of 6 months from the commencement date, on all current websites which it owns, operates or maintains to advertise Techrific’s consumer products, including the website accessible via the uniform resource locator (URL) (“the Techrific website)”.
The Notice shall:
(i) be in the English language and be in full colour;
(ii) be linked by a prominent image stating the words: “Public Notice - Corrected Warranty: what you can do if our warranty misled you” replacing one of the images on the top pane that appears on the Techrific website. The image must appear as a fixed image that does not scroll through any other images, must remain static at all times and must click through to a full size dedicated webpage displaying the full notice, in HTML text, with a minimum font size of 12 point Times New Roman or equivalent and contain an embedded active hyperlink to the URL ;
(iii) if any further URL is registered or employed by the First or Second Defendant, for the same or similar purposes, the internet home page of any corresponding website or websites must contain the Notice in a prominent and conspicuous position. The Notice must appear as a fixed image that does not scroll through any other images, must remain static at all times and must contain an embedded active hyperlink to the URL http:consumer..au;
(iv) any Notices must not appear as a “pop-up” or “pop-under” window; and
(v) that each such website must not have in place any mechanism which would preclude internet search engines from:
i. indexing the page; or
ii. scanning the pages for links to follow.
b) make a post of the notice on the company’s Facebook account, with the title ‘Techrific’s returns policy misled consumers’ and post a link to the full online notice on any social media the company uses. The posts shall not be removed and shall remain visible at the top of the Facebook timeline by way of ‘highlighting’ the post periodically.
c) undertake a training program for staff to inform them of the guarantees available to consumers and to provide CAV with evidence, in writing, that such a program has been implemented and the details of such programs.
d) compile a list of refunds made to consumers at the end of a period of 6 months from the commencement date of the undertaking relating to claims made under the warranties offered by Techrific and the ACL.
e) where a claim relating to the warranty against defects is in dispute after the company has made reasonable attempts to resolve the issue, the company shall invite the consumer to lodge a complaint with Consumer Affairs Victoria and/or to make an application to the Victorian Civil and Administrative Tribunal to resolve the matter.
f) be bound by any determination of the Victorian Civil and Administrative Tribunal relating to consumer complaints of defective goods, while retaining the right of appeal.
COMMENCEMENT OF THE UNDERTAKING
14. This undertaking comes into effect when it is signed by the company and its director and is accepted by the Director of Consumer Affairs Victoria.
ENFORCEMENT
15. If Consumer Affairs Victoria considers that the person who gave the undertaking has breached any of its terms, Consumer Affairs Victoria may apply to a court under section 218(3) of the ACL (Vic), for an order directing the person to comply with that term of the undertaking, or any other order that the court considers appropriate.
ACKNOWLEDGEMENTS
16. The company hereby acknowledges that:
a) the Director of Consumer Affairs Victoria will register this undertaking in the register of undertakings and make this undertaking available for public inspection pursuant to section 200 of the Fair Trading Act 1999;
b) the Director of Consumer Affairs Victoria and / or the Minister for Consumer Affairs may from time to time publicly refer to this undertaking;
c) this undertaking in no way derogates from the rights and remedies available to the Director of Consumer Affairs Victoria arising from any conduct described in this undertaking or arising from conduct outside the relevant period or arising from future conduct (including the right to pursue compensation for or in the name of any consumer); and
d) this undertaking in no way derogates from the rights or remedies available to any other person or entity (including any other regulatory agency) arising from any conduct described in this undertaking or arising from conduct outside the relevant period or arising from future conduct; and
e) this undertaking in no way derogates from the obligation of the company, its officers, employees, and agents and from the obligation on Hendryk Wijaya, personally and as an officer of the company, to fully comply with the provisions of the ACL and the Australian Consumer Law and Fair Trading Act 2012.
EXECUTION
Executed By:
BRUS AUSTRALIA PTY LTD
(ACN 150 976 471)
(Director/Secretary)
In the presence of:
(Print Name of Witness)
Executed By:
HENDRYK WIJAYA
In the presence of:
(Print Name of Witness)
Accepted By:
THE DIRECTOR OF CONSUMER AFFAIRS VICTORIA OR THE AUTHORISED DELEGATE OF THE DIRECTOR PURSUANT TO SECTION 198 OF THE AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012.
The Director:
Accepted the day of ………………………. 2013
Schedule A
-----------------------
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Public notice
Techrific’s returns policy misled customers.
BRUS Australia Pty Ltd (ACN: 150 976 471) trading as Techrific Australia acknowledges that it misled consumers by publishing a non-compliant returns policy on its website.
Following advice from Consumer Affairs Victoria, Techrific accepts that they cannot deny customers their legal right to:
o have the appliance repaired or replaced if it fails to be of acceptable quality
o seek a replacement or a refund for a major failure
o seek compensation for any other reasonably foreseeable loss or damage associated with the major failure.
Techrific may have offered to repair appliances with major failures, when they should also have offered customers their choice of a replacement or refund.
Techrific apologises for the misleading Returns Policy and offers anyone who purchased a faulty item:
o prompt repair or replacement
o a replacement appliance or full refund, at the customer’s choice, in the case of a major failure
o compensation for reasonably foreseeable consequential loss associated with a major failure
Affected customers should email info@.au or fax: 1300 768 790
Along with other state and federal agencies, Consumer Affairs Victoria is a regulator of the Australian Consumer Law. See more about your shopping rights at consumer..au/shopping
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