Most people, at one time or another, have probably received an unsolicited phone call or knock on the door from a telemarketer or salesperson offering to sell them goods or services.
If the salesperson contacts you directly and you have not invited them to do so, and you subsequently enter into a contract to purchase the goods or services they are offering, then this is known as an Unsolicited Consumer Agreement (UCA).
What is an Unsolicited Consumer Agreement?
An agreement is an UCA if:
- It is for the supply of goods or services;
- It is made as a result of negotiations by phone or at a place other than the seller’s place of business;
- The consumer did not invite the seller to enter into negotiations; and
- The total price is more than $100 (or cannot be ascertained at the time the agreement is made).
Consumer Rights under the Australian Consumer Law
The Australian Consumer Law (ACL) imposes a number of obligations on businesses if they make direct approaches to consumers. Some key rights and obligations are:
- Consumers cannot be contacted on Sundays or public holidays, or before 9am or after 6pm on any other day;
- Consumers must be provided with a copy of the agreement;
- There is a cooling off period of 10 business days to cancel an agreement (this can be up to three or six months if the supplier contravenes certain sections of the ACL)
- A dealer must inform the person of their right to cancel the agreement within the termination period; and
- Consumers are entitled to an immediate refund if they do cancel an agreement.
Effect of Termination of Agreement
If an unsolicited consumer agreement is cancelled within the 10-business day cooling off period, or any other period permitted under the law, the agreement is considered to have been rescinded by mutual consent, and any related contract is void.
It is important to remember that a consumer’s rights under the ACL cannot be excluded by contract. Nor can a supplier attempt to induce a consumer to waive their rights under the ACL.
What Options Do I have if a Supplier Breaches an UCA?
If you have signed an unsolicited consumer agreement and believe the supplier has breached the ACL, you can ask for help in resolving the dispute by lodging an application with the NSW Civil and Administrative Tribunal (NCAT). Consumers can also lodge a complaint with the Australian Competition and Consumer Commission (ACCC) which has powers to investigate and issue fines to business.
Baker Love recently assisted a client obtain a full refund following an NCAT hearing. The client had validly terminated the agreement within 10 business days but the supplier breached the law by refusing to give him his money back. If you or someone you know would like some assistance regarding unsolicited consumer agreements, contact us for advice.