Unsolicited goods and services
Unsolicited supplies occur when goods or services are supplied to a person who has not agreed to purchase or receive them. There is no obligation by the consumer to pay for these.
It is an offence for a supplier to:
- demand payment for goods or services if the recipient has not ordered them; or
- bill a consumer for an advertisement they never authorised.
Can businesses provide goods or services to consumers who haven’t requested them?
Businesses often provide goods or services to consumers as a way of exposing consumers to the brand, product or service.
Examples of this are free product samples sent in the mail, or door knocking households and offering to clean their windows as part of a free product demonstration. In these cases there is no expectation for the consumer to pay for the goods or services.
For example, a trader cannot demand payment for items, (such as books, magazines or DVDs) posted to a consumer, if the consumer never requested them.
Businesses must not issue an invoice for unsolicited goods or services supplied unless it contains the required warning statement – “This is not a bill. You are not required to pay any money”. This warning statement must be the most prominent text on the document.
In the event of a dispute, the business operator would need to prove they have a legitimate right to demand the payment.
Consumer rights for unsolicited goods or services
- The consumer is not required to pay for the goods or services.
- The consumer is not liable for any loss or damage resulting from a supply of unsolicited services.
A consumer arranges for a car repairer to replace the muffler on her car. When she returns to collect the car the repairer says the tyres and brake pads also needed replacing, so he made the replacements and added an extra $1,200 to the bill. The work done in addition to replacing the muffler would be considered unsolicited and the consumer is not liable to make any payment for this. If the repairer had phoned the consumer for authorisation to replace the tyres and brake pads and the consumer agreed, then these components would not have been unsolicited.
Recovery of unsolicited goods or services
If a business provides unsolicitied goods or services:
- The business is entitled to recover the goods within three months (called the 'recovery period'). However, if the recipient advises the business in writing that they do not want the goods, then the recovery period is reduced to one month. The recipient cannot unreasonably refuse to allow the supplier to collect the goods during the recovery period.
- The recipient may be liable to pay compensation if they wilfully damage the goods during the recovery period.
- If the unsolicited goods have not been collected within the recovery period the recipient can keep the goods without any obligation to pay.
- The recipient is not entitled to keep the goods if the goods were not intended for them (such as if the packaging was clearly addressed to another person).
If a business is billed for an advertisement they did not authorise
It is unlawful to ask for payment for an entry or advertisement relating to a person or their profession, business, trade or occupation, that was not first authorised by the person or business concerned.
An advertisement or entry is authorised when the person, business or their nominee has signed a document that:
- authorises the entry or advertisement;
- specifies the details of the entry or advertisement, the name and address of the person publishing the entry, and the charges that will apply; and
- was provided before payment was requested.
It is possible to send an invoice for an unauthorised entry or advertisement, if it contains the warning statement required by the ACL Regulations – "This is not a bill. You are not required to pay any money". This warning statement must be the most prominent text on the document.
A business must not send unsolicited credit or debit cards
Generally, an issuer must not send unsolicited debit cards or credit cards (including store-branded credit cards and store account cards) to a person unless:
- The person has requested in writing the card; or
- The card is a replacement, renewal or substitution for a previous card and used for the same purpose.
An item is considered to be a credit card if it is intended to be used to obtain cash, goods or services on credit.
An item is considered to be a debit card if it is intended to be used to access an account held by the consumer for the purpose of withdrawing or depositing cash or obtaining goods or services.
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