If you don't like it, don't keep it

October 22, 2018

I recently acted for a solar provider in an appeal by a customer to the Victorian Court of Appeal.


The customer asserted that the client’s solar system was not properly installed at its premises, such that it was entitled to:


  1. terminate the contract with my client;

  2. recover the purchase price in full; and

  3. recover damages for breach of contract.


The customer discovered the alleged defects in November 2012.  It sought to terminate the contract in July 2013, but made no attempt to return the goods to my client.  During this time, the customer got the benefit of the solar system. 



In October 2015, the parties reached a settlement agreement, whereby my client agreed to rectify certain defects.  My client attended on the customer’s premises to rectify the defects.  The customer alleged that some defects were not rectified. 


The tribunal held that the defects were minor and could be rectified for a small sum.  It ordered that the customer pay my client’s account less this small sum.


The customer appealed to the Supreme Court and then the Court of Appeal.


The Court of Appeal found that the option to terminate the contract was not available to the customer, because the consumer:


  1. made no effort to return the goods; and

  2. otherwise acted inconsistently with termination by allowing my client to rectify the alleged defects.


If the customer had simply terminated the contract and arranged to return the goods immediately, it is likely that it would have been entitled to terminate the contract, recover a full refund and recover damages.


The lesson? If you don’t like something that you purchase, don’t hold onto it if you want to recover a refund.


You can read the decision in this case here.


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