Between 1 July 2015 and 31 October 2017, Imagine That Photography Pty Ltd, a mobile photography business trading from major shopping centres around Australia, entered into agreements with consumers without providing appropriate information regarding layby terms and conditions, including how a consumer might terminate the layby agreement. The business also made misleading representations about refund rights, denying them to consumers who wished to validly cancel an agreement.
The enforceable undertaking requires Imagine That Photography acknowledge its obligations under the ACL by correcting all advertising and agreements, and releasing any consumer who wished to cancel an agreement or was placed on a debt recovery plan by the business.
The business must also write to all consumers who entered into a direct debit agreement to advise them they are entitled to cancel their current agreement and receive a refund.
The conduct of Imagine That Photography was first raised with the QOFT by the Indigenous Consumer Assistance Network (ICAN), after a number of Indigenous Australian consumers were affected by the dealings of the business and had contacted ICAN for assistance.
As a further part of the undertaking, Imagine That Photography will provide a donation of $5000 to ICAN.
ICAN CEO, Aaron Davis said, “the undertaking is a win for all consumers and will help with the continued administration of the North Queensland Indigenous Consumer Taskforce, where this matter was originally raised with state and national consumer protection agencies.”
Consumer protection agencies from New South Wales, Victoria, Western Australia and South Australia worked with the QOFT during the investigation of Imagine That Photography.
Fair Trading Executive Director Brian Bauer said it was essential that businesses understood their obligations and responsibilities when providing goods and services to consumes under the ACL.
“Consumers are entitled to certain rights within Australia that must be followed by businesses,” Mr Bauer said.
“This includes ensuring layby agreements comply with the requirements of the ACL by being in writing, and include what goods are being sold, the price and deposit paid, how long the layby will last in total and what cancellation and refund policies apply.”
A business may only charge a reasonable termination fee to a consumer if it was specifically stated in the agreement, with the fee only covering the costs of the lay-by.
“If a business is unsure of what requirements they are obligated to offer, they can check the Fair Trading website,” Mr Bauer said.
An enforceable undertaking by the OFT is an alternative to court action where a breach of legislation is alleged. It is considered a legally binding agreement, which if broken, can result in charges for both the original offending actions as well as seeking orders from the court to enforce the undertaking.