The Commerce Commission has filed High Court civil proceedings against door-to-door retailer Ace Marketing Limited (Ace), alleging a number of breaches of the Fair Trading Act 1986 (FT Act) and the Credit Contracts and Consumer Finance Act 2003 (CCCF Act).
The Hamilton based company sold consumer goods – mostly consumer electronics products – via door-to-door sales agents.
The Commission alleges that between 1 April 2016 and 31 August 2018 Ace entered into approximately 4,100 contracts with customers. Customers did not receive products until they had made a specified number of weekly payments to Ace, and all versions of Ace’s contract contained terms stating delivery of products would be delayed if customers missed scheduled payments.
The Commission’s case is that:
- Ace breached the lender responsibility principles under the CCCF Act by failing to assist borrowers to reach an informed decision because the clauses that set out the delay in delivery when payments were missed were not plainly expressed, were likely to be misleading, deceptive or confusing, and were oppressive
- the contract contained unfair contract terms, as the delayed delivery provisions created a significant imbalance in the parties’ rights
- the cancellation fees, which were a percentage of either the purchase price of the goods or the total price of the contract, were unreasonable.
The relief sought by the Commission includes:
- declarations that Ace’s conduct breached the FT Act and/or the CCCF Act and that the clauses in its contracts setting out the length of delay in delivery when payments were missed were unfair contract terms
- injunctions preventing Ace from providing consumer credit until its contracts are amended to comply with the CCCF Act, from unreasonably deferring delivery of goods, and from charging unreasonable fees
- refunds to customers of unreasonable cancellation fees, and costs.