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Letters from Aug/Sep 2018

Each month, our experts answer members' questions. If you're a paying Consumer member and have a consumer issue, you can contact our advice line for help.

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Smoked out

I recently spent a night in a smoky hotel room. People were smoking next door and their smoke drifted into my room. The hotel manager wasn’t able to do anything. The next morning my clothes and belongings all smelled of cigarette smoke. I’ve emailed the hotel for a refund, but haven’t heard back. What are my rights? TESSA LINWOOD

WE SAY: The hotel hasn’t provided its service with reasonable care and skill. You’d never have booked the room if you knew you’d be smelling of smoke when you left. In our view, you’re entitled to a refund of the room cost under the Consumer Guarantees Act.

UPDATE: Tessa was refunded the cost of the room.

Spare parts

I have just visited nine electrical retailers to find a replacement bulb for my Mitsubishi fridge. Luckily I found one. The retailer I bought the fridge from told me it didn’t stock any parts and to “try around”. It didn’t tell me that when I bought the fridge. When looking for a new bulb, the various electrical stores told me “oh, you don’t buy this brand or that … you can’t get parts”. How do I, as a member of the buying public, get to know this? It should be mandatory for a retailer to provide spare parts for any product it sells, either by stocking them itself or supplying information as to where you can get parts locally. BILL FAULKNER

WE SAY: It’s ridiculous that you’re having to go to such lengths to replace a light bulb. It’s mandatory under the Consumer Guarantees Act for manufacturers (or importers in the case of goods manufactured overseas) to ensure spare parts and repair facilities are available for a reasonable time after goods are supplied. The only exception is when you’re told at the time of purchase that spare parts won’t be available. Unfortunately, this requirement seems to be ignored by some companies.

Repair or replacement

I purchased a new Samsung Galaxy S8 phone three months ago. The phone became very hot one day and then I found the battery ran flat three hours after being fully charged. I couldn’t send or receive calls or messages. I took it back to the retailer but resetting and recharging the phone didn’t work. I returned to the retailer and asked about a replacement. It said the phone would have to go to the manufacturer for evaluation and repair. The phone has come back repaired but was the retailer correct in sending it off for repair instead of replacing it? LINDSAY MCGOWAN

WE SAY: If the fault was minor, the retailer had the right to repair the phone, replace it, or give you a refund. An electronic product that’s failed, such as a phone, usually needs to go back to the manufacturer for an assessment (retailers are obviously keen to ensure the item is, in fact, faulty). But when the fault can’t be fixed or is substantial, it’s up to you to choose whether you get a replacement or a refund.

Rights on seconds?

We bought three pieces of whiteware from an outlet store. The items were all Fisher & Paykel, from near the top of its range, but were factory seconds. The salesperson couldn’t tell us why they were seconds but they looked unused and we couldn’t see any cosmetic damage. They all came with a 12-month manufacturer’s warranty. Given the items were sold as seconds and came with a short warranty, we also signed up for a five-year extended warranty for each item. Does buying seconds change my rights under the Consumer Guarantees Act? ALASTAIR CHILD

WE SAY: As the salesperson couldn’t tell you why the items were seconds, your rights under the Consumer Guarantees Act are exactly the same as if you’d bought the goods from any other store. If the retailer had explained the flaws that caused the whiteware to be sold as seconds, you wouldn’t have any rights to later complain about those issues. But you’d still have rights in regard to other faults. For example, if the salesperson said the items were seconds because they had scratches on them, that doesn’t mean you’d have to put up with an electrical fault.

Waterbed fumes

A custom-made waterbed worth $4500, which I had delivered two days ago, is releasing an extremely strong chemical smell. I commented on this during installation but the installer just shrugged it off saying I could sleep on the bed straight away. Even after airing the room, I’m unable to sleep on the bed because the smell is making me ill. Friends have also noticed and commented on the smell. I chose a high-end product to avoid unsafe, cheap material. I asked the retailer to take the bed away and issue a refund. It advised me to wipe the mattress and said the smell usually disappeared within 72 hours. It said there would be no refund as the bed was custom-made. After further inquiries, the manager has agreed to assess the problem. What are my rights please? A MEMBER

WE SAY: A bed that smells so bad it makes you feel sick is not fit for purpose, by any definition! Under the Consumer Guarantees Act, the retailer must provide a remedy within a reasonable time. We’d suggest you point this out to the store. The fact the bed was custom-made doesn't affect its obligations in this situation.

Driving cover

I recently rented a car and took out the “zero excess” option. When reading the terms and conditions I noted that if I had an accident and was prosecuted I could be liable for the cost of vehicle damage. I checked another rental car site and found a similar exclusion. I read your article about car rentals and got the impression this exclusion was normal. This is scary – a minor misjudgement at a roundabout could be very expensive if the police become involved. Is this correct? Is third-party damage also excluded and is there any way to obtain insurance against such a situation? PETER COLE

Olivia Wannan, Consumer investigative writer, says: The rule of thumb is that if the rental car company can prove you broke the law or drove negligently or dangerously, you won’t be covered by the insurance (for the rental vehicle damage or third-party damage). It’s unlikely you would find a personal car insurance policy that would cover you for acts of dangerous driving. They also exclude cover for reckless and criminal acts.

House build advertising

We’re wondering if there are rules for advertising a house build/plan. We’d been in contact with a building company, as we really liked one of its plans, but found what it advertised and priced on its website wasn’t quite what you got, so chose not to go ahead. We liked this house because of the outdoor space and the fireplace, but according to the company these are not included in the sticker price (but these features are detailed in the plans – no reference is made on the website or in pamphlets listing these as exclusions). CLINTON CHURCH

Maggie Edwards, Consumer adviser, says: If it wasn’t clear the cost was just for the shell of the house, then the company’s advertising could be considered misleading and a breach of the Fair Trading Act. The act makes it an offence for a trader to give you a false impression about goods or services you’re buying. It doesn’t just cover misleading verbal or written statements. Traders also risk breaching the act if they use pictures in advertising that misrepresent what you’re being sold. They can’t get around their obligations by putting disclaimers in the fine print. A trader found guilty of breaching the act can be fined up to $600,000. We recommend making a complaint to the Commerce Commission about the company’s claims.

High-cost group texting

I recently travelled to Wellington with our local drumming band, comprising about 30 people, for the Cuba Street Festival. I had to send several group text messages to the band over the weekend. I was surprised to find, when I got my monthly mobile bill from Spark, I had racked up $134.16 worth of MMS (multimedia messaging) charges. I assumed I was sending SMS messages (normal texts), which would have been covered as part of the monthly plan. Are you able to tell me why my messages were converted to MMS format? And also, are SMS messages with emojis attached charged as MMS messages? A MEMBER

Hadyn Green, Consumer tech writer, says: If you were using email addresses for your contacts rather than phone numbers, this would have resulted in MMS charges. A mobile phone won’t send regular text messages (SMS) to an email address. In that case, messages are converted to MMS. If you’re using an Apple device with iMessage turned on, and some people in the group aren’t using iMessage, then the message will be sent either as an MMS or SMS message. There are three scenarios in which a mobile phone would send a normal message as an MMS: if the message is more than 160 characters, if a picture or other media are attached, or if an email address recipient is used in a group message. Adding emojis to an SMS text does not change it to MMS. It may pay to look around for group chat applications, such as WhatsApp or Google Hangouts, that will only use your mobile data.

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