WA Unsolicited Sales Person - Harassment?

[Barry Andrews]

My sister entered a competition for $1000.00 prize. The salesman contacted her with regards to demonstrating goods. She said she was not interested. They did this two more times (3 in total), before she agreed in order to stop them from calling.

When they came for what she thought was just going to be a demo they managed to convince her to buy $4000.00 vacuum cleaner (she has no means to pay this off even with monthly payments and currently has defaulted on existing loan a number of times, they did not ask her about the value of existing loan or its payments. She spoke to a friend and realised she had been duped. She contacted the sales people to cancel the contract within the cooling off period (10 days). They didn't accept her cancellation over the phone, but instead sent out their manager who convinced her to remove some attachments and extend the term by making her feel guilty about cancelling.

My sister suffers from bipolar and has been made extremely depressed since this has occurred.

My questions are:
1 - Does the three calls to make her allow them to come into her house constitute harassment? She definitely felt it was the only way to make them stop.

2 - When the manager changed the terms of her contract within the cooling off period and had her sign the new agreements with the original date. Is this legal under contract law or Australian Consumer Law?

 

[Sophea]

Dear Barry,

The conduct of unsolicited door to door and telephone sales is regulated by the Australian Competition & Consumer Commission. Australian laws regulate how and when such sales people can contact you.

It appears from the information you have provided that, by convincing your sister to waive her rights to cancel the contract within the cooling off period and then back dating the new agreements, there is a possibility the sales person may have breached these laws. In certain circumstances, the cooling off period can be extended to 3 months or 6 months, which may allow your sister to extricate herself from the contract.

If you are concerned I would contact the ACCC and lodge a consumer complaint here: http://www.accc.gov.au/consumers/complaints-problems/make-a-consumer-complaint

This is some information from the ACCC's website regarding what is required of unsolicited sales people. The sales agreement for the vacuum cleaner must be given in writing after the phone call or immediately after she signed it in person. The agreement must:

• be written in plain English
• be printed (changes may be handwritten and signed)
• be signed by your sister and the trader. The front page must have your sister's signature and the date signed
• set out the full terms and conditions of the agreement, including the cooling-off period
• state the total price payable or how it will be calculated, as well as any delivery or postage costs
• state on the front page that your sister has the right to cancel the agreement (or cool-off)
• include a form that your sister can use to cancel the agreement during the cooling-off period
• include the seller’s contact details (their physical business address, email and fax) and ABN or Australian Company Number.

In relation to your sister's cooling off rights:
The door to door salesperson must tell your sister about her cooling off rights before she signs the agreement.

• she can change her mind and cancel the vacuum cleaner agreement for any reason without penalty within 10 business days
• the salesperson can't take payment during the cooling-off period for any goods or services.

If your sister wants to 'cool-off'

• she has 10 business days to cool-off or cancel the agreement, starting the first business day after she receives the sales agreement
• she can terminate the agreement verbally or in writing any time during the cooling-off period. Written termination can be delivered personally, via post, emailed or faxed. The agreement will be cancelled from the day she gives notice
• the seller must promptly return or refund any money paid under the agreement
• for goods bought on credit or finance, the seller must contact the credit provider and arrange for cancellation
• even if she has partially or completely used the goods supplied by the salesperson under the agreement she still have cooling-off rights during the specified period
• the salesperson must not try to convince your sister to waive her rights to cool off.

Extended cooling-off period
If the salesperson has breached your sister's legal rights, she may be entitled to a longer cooling-off period.

You may terminate an agreement up to three months after it is made if the salesperson:

• telephoned or visited you outside of the permitted selling hours
• did not disclose the purpose of the call or visit
• did not identify him/herself.

This period is extended to six months if the salesperson:

• did not provide you with information about the cooling-off period
• was in breach of other requirements for uninvited sales approaches (such as failing to provide a written copy of the agreement or not including required information in the written agreement)
• supplied goods or services during the cooling-off period (if the agreement is worth over $500).

What to do after you cool off

• If any goods were delivered or given to you in person, you must return them (or what remains of them) within a reasonable time or tell the supplier where to collect them.
• If you have not taken reasonable care of the goods, the supplier can seek compensation for depreciated value.
• You do not have to pay compensation for normal use of the goods or circumstances beyond your control.
• If the supplier does not collect the goods within 30 days of termination, then you can keep them."

Its possible to be put on a Do Not Call Register which allows you to list your home, personal mobile or fax number to reduce telemarketing calls.

 

[Barry Andrews]

Can you please advise if it is legal for a door to door salesperson to change the value / terms of a contract after initial contract has been signed and then backdate this to the date of original contract. Just trying to understand what are the rights and obligations in this position.

Example person agrees to purchase at $4000.00 then during cooling off period (9 days later) realises this is too much for them to afford and contacts sales person to cancel contract. Sales person then convinces purchaser to buy reduced product at discount and does new paperwork for the purchase but gets the person to sign this new contract with the date of original contract rather than the date the new contract was agreed?

 

[Barry Andrews]

Thanks. Is it legal for them to back date a contract?

 

[Sophea]

It depends whether it was a variation of the terms of the original contract or whether it was a brand new contract entered into, which is difficult to determine based on the limited info provided. You should probably seek a lawyer's assistance if you need specific advice.