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Bill Bevan: Christmas legal issues

With a little over two more weeks until Xmas, Bill is going look at some legal issues that arise at this time of year.

Q. Firstly, can you take an unwanted gift back to the store and require a refund?

There is no legal obligation on a retailer to exchange goods or give a cash refund unless the goods substantially breach the Consumer Guaranties Act.

Under the Consumer Guarantees Act a consumer has a right to reject goods and get a cash refund if for example, there has been a substantial breach of the guarantee of "acceptable quality". (ie the goods are so defective that they would not have been purchased by a "reasonable consumer, fully acquainted" with the defect).

This right to a refund or replacement extends to donees (Those who receive Christmas gifts) so if the goods are substantially defective, don't be bullied into an offer of "credit" when you want a cash refund instead.

One thing to remember when you are buying Christmas presents, is keep the proof of purchase (and let those people to whom you give a gift know that if there are any problems, you've got the receipt if they need to take the present back to the store).

Q. What about shops that promise a money back guarantee if you're not satisfied or a gift exchange voucher ?

Even though a consumer may not have rights under the Consumer Guarantees Act, the store may well have a policy that gives the consumer rights over and above those found in the Act.

If for example, the supplier says it has a "free trial" period allowing the consumer to "try before you buy", then the right to a refund may exist whether the goods are faulty or not. The right to a refund in these cases arises out of the contract between the supplier and the consumer.

Stores that have gift exchange vouchers will also be bound by the terms of the voucher (Usually an exchnage rather than a cas refund)

It is advisable in all such cases, to ensure that the "free trial" offer is documented in writing, proof of purchase is kept and the goods are returned within any specified timeframe in the voucher.

Q. This time of year, kids are often taken on overseas trips by parents that are separated. What happens if a non-custodial parent decides to stay in say Australia with the child and not return to NZ?

Both Australia and New Zealand are signatories to the Hague Convention which addresses the issue of inter country child adduction. As parties to the convention each country agrees to return a child to the country where they are ordinarily resident if a child is wrongfully taken from their home country or wrongfully retained in another country.

A special agency is each country called "the Central Authority" takes responsibility for tracking children down and returning them to their home country. If an ex partner doesn't return with the child as expected the custodial parent should contact the New Zealand Central Authority in order to make an application for the return of a child.

Write to
Hague Convention Advisor
Ministry of Justice
Private Box 180
New Zealand
Tel: (04) 918 8800