Determinations

TDR Case Note T003891 (2009)

Issue

Faulty mobile handset and poor customer service.

Background

The customer contracted with the Scheme Member Provider (Provider) in September 2008 for landline, broadband and mobile telephone services for a minimum period of 2 years.

The customer experienced issues with his mobile phone from the outset when he initially charged it and the battery quickly went flat. He contacted the provider and was advised to return the mobile phone, which had been purchased from another telecommunications operator’s store. After receiving advice from the store and recharging the phone, it seemed to work normally. The customer then contacted the provider again on 8 December and advised that the battery might not fit the phone correctly. The provider was unclear why the telephone was not working and agreed to “re-process the connection”, which occurred on 12 December.

The customer also alleged problems connecting to the provider’s cellular network and complained that despite an audio message on the provider’s electronic systems stating that the phone would be functional within hours, it was not.

Following debit collections activity in January 2009 the customer contacted the provider to complain about poor service and to request termination of his mobile services. After being advised about early termination charges the customer decided not to terminate his services.

The provider then provided the customer a loan handset.  The original handset was forwarded to a mobile telephone repairer, but they could not find any fault with it.

On 27 April, the customer wrote to the provider seeking termination of his cellular service contract without early termination charges. The provider refused to waive the termination charges but offered a 50% reduction as a goodwill gesture.   The customer declined the offer and lodged a complaint with the TDR service.

Adjudicator’s decision

The adjudicator found that the customer had difficulties with the handset provided and also with the provider’s communications. The two essential issues were whether the handset was of such unacceptable quality as to amount to a material breach of the contract, and whether there had been a breach of the Customer Complaints Code (the Code) regarding the communications. 

The adjudicator found no evidence of any defect in the mobile handset originally provided to the customer. The adjudicator therefore concluded that the evidence did not support the handset to be anything other than of an acceptable quality, and that it met the criteria required by clause 7 of the Consumer Guarantee Act (CGA).

While acknowledging that the customer was dissatisfied with the provider’s communications, the adjudicator did not find sufficient evidence to conclude that there had been a material breach of the contract between the parties, or of the Code. Moreover, there was no evidence indicating that the contract could in law be voided and therefore, there remained a continuing contract between the parties for a 2 year period commencing in September 2008. As a result, the customer was liable for the full early termination charges.  

Final outcome

The adjudicator’s conclusion was that the customer’s complaint could not be upheld. There was no breach of the contract or the Code in regard to the handset’s quality or the provider’s communications. The customer, therefore, was liable for the full early termination charges.