How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Chris The Lawyer Your Own Question
Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 23065
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
Type Your New Zealand Law Question Here...
Chris The Lawyer is online now
A new question is answered every 9 seconds

On Dec 1 2015 I purchased 2 sony Xperia M5 phones from an

Customer Question

On Dec 1 2015 I purchased 2 sony Xperia M5 phones from an online store based in Auckland called Supero.
On the 9 Feb I contacted Supero to let them know the phone (A) had developed an issue where it was shutting down without warning and the only way to turn it back on was to plug it in. I sent it to them for a warranty repair.
On Feb 23 I contacted them to ask how the repair was going, they replied the next day to say they were still assessing.
On Feb 29 I contacted the again to let them know the second phone (B) was having the same issue. They did not reply.
On Mar 2 I again contacted Supero to ask how the repair of phone A was going and to tell them phone B had stopped and I couldn’t restart it.
They replied to say they had run diagnostics on the phone and hadn’t found any issues and would retest it for 2 more days.
On Mar 4 they emailed again to say they had found no fault and the problem was probably caused by a rogue app attached to my Google account. They also replied to say I could send in phone B and that as both phones appeared in good condition they would offer a return of the phones less a restocking fee even though it was outside their usual 14 days company policy.
I asked how much the restocking fee would be - the replied $55 - I asked if it was each or for both, if for both them I would just like to return both phones.
On Mar 8 they said it was $55 for one phone and they wouldn’t refund the second (B) if they found no problems.
Mar 10 I sent them phone B and let them know I would like the refund for phone A as offered.
Mar 14 they replied to say they had tested phone B which I couldn’t even start and that it also had no issue. They also said their technicians had noticed a few marks on phone A and it would lower their resale so they could not offer me a return for that phone.
They offered to either return both phones or give me a refund on phone B and send phone A back to me less the $55 restocking fee and postage at my cost.
I wasn’t very happy with this outcome but I accepted the second option - Saying though that if the phone continued to fail I would have to return it under warranty as I did not feel it was fit for purpose.
They have refunded us for phone B claiming it also had minor dents and scratches - which is false as I had only managed to use that phone for barely a week before sending it to them for repair and it was still in new condition.
Phone A they have sent to me and I received on Thu Mar 24. I found it had been factory reset so it automatically went through a lot of updates etc. When it had finished I logged into my email and facebook accounts. I have not added any new apps - only used what is already on the phone. Within an hour of it finishing its updates it shut down again and I had to plug it in to restart it. There was plenty of battery so the issue has not been resolved.
I would like to return this phone also for a FULL refund as I no longer want to deal with this company and their phones as their service and communication is very limited.
What are my rights here?
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 1 year ago.

Under the Consumer Guarantees Act you are entitled to a refund or replacement if the phones are not fit for purpose. From your description these phones had major defects which entitles you to ask for a refund. Their company policy of 14 days doesnt mean anything because they cannot contract out of their obligations under the act.

The relevant sections are

6 Guarantee as to acceptable quality

  • (1)Subject to section 41, where goods are supplied to a consumer there is a guarantee that the goods are of acceptable quality.

    (2)Where the goods fail to comply with the guarantee in this section,—

    • (a)Part 2 may give the consumer a right of redress against the supplier; and

    • (b)Part 3 may give the consumer a right of redress against the manufacturer.

Customer: replied 1 year ago.
Thank you.
Can I also tell them to refund the restocking fee for the first phone?
Shall I copy these sections into an email to them and tell them I have been in contact with a lawyer?
Expert:  Chris The Lawyer replied 1 year ago.

Yes, you should cite the act and tell them they have to refund, and also they cannot charge the restocking fee, as that is something extra. I was just about to add this section as well

18Options against suppliers where goods do not comply with guarantees

  • (1)Where a consumer has a right of redress against the supplier in accordance with this Part in respect of the failure of any goods to comply with a guarantee, the consumer may exercise the following remedies.

    (2)Where the failure can be remedied, the consumer may—

    • (a)require the supplier to remedy the failure within a reasonable time in accordance with section 19:

    • (b)where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time,—

      • (i)have the failure remedied elsewhere and obtain from the supplier all reasonable costs incurred in having the failure remedied; or

    (3)Where the failure cannot be remedied or is of a substantial character within the meaning of section 21, the consumer may—

    • (b)obtain from the supplier damages in compensation for any reduction in value of the goods below the price paid or payable by the consumer for the goods.

    (4)In addition to the remedies set out in subsection (2) and subsection (3), the consumer may obtain from the supplier damages for any loss or damage to the consumer resulting from the failure (other than loss or damage through reduction in value of the goods) which was reasonably foreseeable as liable to result from the failure.

Expert:  Chris The Lawyer replied 1 year ago.

So you have given them a reasonable time to fix and they have failed to do so

Customer: replied 1 year ago.
Hi Chris
I had tried last night to ask a follow on question about the Sony Xperia phone issue you have been helping me with, I cant find it on the site and are unsure if you received it?It was to do with Supero have now admitted they believe there could be an issue with the phone however they cannot replicate it. Therefore they believe that the CG act does not apply. They have the phone and are sending it to Sony Auckland for further testing. I however have had to purchase a new phone as I need to be contactable by my family and work and this has continued on for a long period of time now.
What is my next course of action from here? Should I file with small claims court? and can I reclaim my costs to date against them for fees court costs etc?
If you need further information to refresh from the last conversation let me know.
Expert:  Chris The Lawyer replied 1 year ago.

They cannot contract out of the obligations under the Consumer Guarantees Act. If they cannot fix the phone then they must either replace or refund your money. If they aqre avoiding the issue, then a claim in the Disoutes Tribunal may well be the best step as this will force them to answer. You can apply online at this site