Consumer complaint NSW Fair Trading: escalate to NCAT, step by step

If the business has stonewalled you, offered too little or stopped replying, NSW has two well-established options beyond complaining to the business, and they are not a mandatory sequence: NCAT sets no general requirement to have been through Fair Trading first. Both are relatively low-cost.

This guide covers a written demand, a NSW Fair Trading complaint and the NSW Civil and Administrative Tribunal (NCAT).

Quick answer

In general terms, NSW consumers have two main escalation options beyond a direct complaint to the business: NSW Fair Trading, which assesses complaints and may offer dispute resolution at no cost, subject to its criteria; and a claim at NCAT's Consumer and Commercial Division. Which path makes sense depends on the failure, the evidence you have, and how the business responds.

What the law actually says

The Australian Consumer Law (ACL) is set out in Schedule 2 of the Competition and Consumer Act 2010 and applies as a law of NSW through the Fair Trading Act 1987 (NSW).

You receive the consumer guarantees automatically when you acquire goods or services as a consumer under section 3: broadly, where the price was $100,000 or less, or the goods or services were of a kind ordinarily acquired for personal, domestic or household use. Any one limb is enough. Section 3 also excludes goods acquired to re-supply, or to use up or transform in trade or commerce in production, manufacture or repair, so check how it applies to you.

The business cannot remove these guarantees through store policy, a "no refunds" sign, or a clause in their terms and conditions — section 64 of the ACL makes a term void to the extent that it purports to exclude, restrict or modify those guarantees, or any liability for failing to comply with them. For goods or services not of a household kind, section 64A may let a contract limit liability to repair, replacement or resupply (or the cost), unless that isn't fair or reasonable.

The guarantees most relevant to escalation disputes are:

• Section 54 — Acceptable quality. Goods must be safe, durable, free from defects, acceptable in appearance and finish, and fit for all the purposes goods of that kind are commonly supplied for — as a reasonable consumer fully acquainted with their state and condition, including hidden defects, would regard as acceptable given the nature of the goods, the price, and what was said about them.
• Section 55 — Fitness for disclosed purpose. If you made known a particular purpose — to the supplier, whoever conducted the negotiations, or the manufacturer — the goods must be reasonably fit for it, unless the circumstances show you didn't rely, or it was unreasonable to rely, on their skill or judgment.
• Section 60 — Services performed with due care and skill. Services must be rendered with the care and skill of a reasonably competent provider of that service.

When a guarantee is breached, your remedies depend on whether the failure is major or non-major. Under section 260 of the ACL, a goods failure may be major where:

• a reasonable consumer, fully acquainted with the nature and extent of the failure, would not have acquired the goods;
• the goods depart in one or more significant respects from their description, or from a sample or demonstration model;
• the goods are substantially unfit for a purpose goods of the same kind are commonly supplied for, and cannot easily and within a reasonable time be remedied to make them fit;
• the goods are unfit for a particular purpose you disclosed to the supplier, and cannot easily and within a reasonable time be remedied to make them fit; or
• the goods are not of acceptable quality because they are unsafe.

Two or more failures that aren't major on their own are together a major failure if a reasonable consumer fully acquainted with them, taken as a whole, wouldn't have acquired the goods or services (sections 260(2) and 268(2), for contracts from 18 December 2020).

Your refund or replacement claim runs against the seller, who cannot discharge it by pointing you at the manufacturer; sections 271 and 272 may separately support a damages claim against a manufacturer. For a major failure, or one that can't be remedied, section 259(3) gives you two alternatives: reject the goods — then elect a refund or a replacement of the same type and similar value, if reasonably available — or keep them and claim compensation for the reduction in value. For a non-major goods failure that can be remedied, you can require the supplier to fix it within a reasonable time (section 259(2)), and it may do so by repair, replacement or refund (section 261). If it refuses or doesn't do so within a reasonable time, you can have it fixed elsewhere and recover the reasonable cost, or reject the goods (subject to section 262).

Rejection must still be available. Section 262 sets a rejection period running from the time of supply, lasting as long as it would be reasonable to expect that kind of failure to become apparent given the type of goods and the use they would get — not a fixed number of days, and not measured from when you noticed the fault. The right ends when that period does, and is also lost where you lost, destroyed or disposed of the goods, where they were damaged after delivery for reasons unrelated to their condition at the time of supply, or where they have been attached to or incorporated in other property and cannot be detached or isolated without damaging them.

If you reject, tell the business in writing, state the ground and make the goods available. You are ordinarily responsible for returning them, but under section 263, where return would cost significantly because of the nature of the failure or the size, height or method of attachment of the goods, the supplier must collect them at its own expense.

Services run on a separate track. The principal guarantees are sections 60 to 62 (section 63 sets out exceptions, not a further guarantee) and the remedies are sections 267 to 270, with section 268 deciding whether a services failure is major: a reasonable consumer fully acquainted with the nature and extent of the failure wouldn't have acquired the service; the service is substantially unfit for a purpose services of that kind are commonly supplied for, unfit for a particular purpose you made known, or not of such a nature, or quality, state or condition, that it might reasonably be expected to achieve a result you made known, and can't easily and within a reasonable time be remedied; or it creates an unsafe situation. For a major failure, or one that can't be remedied, you may cancel the services contract where the statutory conditions are met — section 269 then entitles you to a refund of what you paid, to the extent you had not already consumed the services — or keep it on foot and claim compensation for the reduction in value; other reasonably foreseeable loss may also be recoverable if you can evidence it and took reasonable steps to limit it. For a non-major failure that can be remedied, you can require the supplier to fix it within a reasonable time; if it doesn't, you can have it fixed elsewhere and recover the reasonable cost, or cancel (section 267(2)). For the section 61 and 62 guarantees, you can't take action if the failure happened only because of someone other than the supplier (or its agents or employees) or a cause independent of human control after supply (section 267(1)(c)). Cancelling a services contract and rejecting goods are different mechanisms.

When this applies (and when it doesn't)

The ACL escalation path through NSW Fair Trading and NCAT is available when:

• You bought from a business rather than a private seller. Most sole traders acting in trade or commerce — a personal trainer, a sole-trader tradesperson — count as a business even though they are individuals.
• You have a genuine consumer guarantee dispute — a defect, a service failure, goods that don't match their description — or a misleading-conduct claim under section 18 of the ACL.
• Ideally, you have already tried to resolve the issue with the business in writing (Fair Trading expects this; NCAT doesn't require it).

It is generally not the right path when:

• Your dispute is about a financial product or service (banking, insurance, superannuation) — complain to the firm first; if that fails, the Australian Financial Complaints Authority (AFCA) is free for consumers where the firm is a member and the complaint is within its rules and limits.
• You are seeking a remedy for pure change of mind — the ACL does not require change-of-mind returns, though some businesses accept them as goodwill.
• The seller was a private individual, not a business — someone selling their own used goods on Gumtree, say.
• Your dispute is about a contract term outside the ACL's consumer guarantee framework — you may still have options, but the analysis is different.

What to do today

1. Send a formal written demand to the business.

A written demand creates a record and gives the business a clear opportunity to resolve the dispute before escalation. Your letter should:

• State the date of purchase and describe the goods or service.
• Describe the failure clearly and explain why it breaches a specific consumer guarantee (acceptable quality, fitness for purpose, match to description, or due care and skill for services).
• State the remedy you are seeking — refund, replacement, repair or compensation — and why it follows. For a refund on goods, say why the failure is major, why rejection is still available, and that you are rejecting them. For a non-major failure, ask for an appropriate remedy within a reasonable time; for services, name the sections 267 to 270 remedy you rely on.
• Set a reasonable deadline: about 14 days is a practical default, not an ACL requirement.
• Say that if it is not resolved you intend to complain to NSW Fair Trading and then file at NCAT.

Alongside the letter:

• If you paid by card, ask your card issuer now whether a chargeback is available; if you used buy now pay later, ask the provider about its dispute process; both follow the card scheme's or provider's own time limits, not the ACL's.
• If the cause of the fault is disputed, get a written report from an independent repairer or expert on cause and cost to fix; it carries more weight than your own account.
• Keep the goods and make them available for reasonable inspection. Avoid substantial third-party repairs unless the situation is urgent or the supplier has refused or failed to act.

You can generate a demand letter for free using fairgo. You send it under your own name.

2. Lodge a complaint with NSW Fair Trading.

If the business does not respond or refuses, lodge a complaint with NSW Fair Trading. It is free and online. NSW Fair Trading may assess the complaint, provide information, contact the business, help with resolution, investigate possible non-compliance or refer the matter elsewhere, depending on the circumstances and its current priorities and powers. It does not undertake conciliation in every matter, and generally cannot make a binding refund or compensation order in an ordinary consumer dispute.

Its help is usually informal. But if its complaint process hasn't resolved an eligible product dispute (broadly, priced $25 to $3,000 excluding GST, bought within 6 months before your complaint, you based in NSW; ask within 30 days), you can ask it for a consumer guarantee direction requiring repair, replacement or refund, enforceable through the Local Court. If Fair Trading cannot assist, consider whether NCAT, a court, an ombudsman or another specialist body has jurisdiction.

To give the complaint the best chance:

• Upload your supporting documents when you lodge — photos, receipts, correspondence, repair quotes.
• Be specific: "a full refund of $X" beats "some compensation".

3. File at NCAT if that does not resolve it.

If the Fair Trading complaint does not resolve the dispute, or the business refuses to engage, you can often file a claim at NCAT's Consumer and Commercial Division under the state-applied ACL or related NSW consumer legislation. Most applicants represent themselves. Fees vary with the claim amount and applicant category and are updated periodically, so check NCAT's current fee schedule before you file. Representation rules differ by case type and a representative may need the Tribunal's permission.

When filing at NCAT:

• Check the claim limit. NCAT's Consumer and Commercial Division may hear consumer claims up to $100,000 with a NSW connection (such as supply, or a contract, in NSW), subject to its statutory jurisdiction and time limits. Claims above that may need a court with the appropriate monetary jurisdiction.
• Check the NCAT time limits, which are not the ACL's. NCAT states that a general consumer claim must be lodged within 3 years of when the cause of action accrued — when the problem with the goods or services arose — and that the goods or services must have been supplied within the previous 10 years. Different claim types can carry different deadlines. These are separate from the section 262 rejection period, which decides whether rejecting the goods is still open to you, and separate again from court limitation periods. Check the current NCAT guidance before lodging.
• Name the respondent correctly. Use the supplier's legal entity, not just its shop or trading name, and get the correct address for service. For a company or registered business, search ASIC's registers and attach the search to your application. Wrong details can delay the matter or produce an unenforceable order.
• Check federal jurisdiction if either party is interstate. NCAT cannot determine a claim between natural persons permanently resident in different Australian states — which rarely affects an ordinary claim against a company, since it does not arise for corporations, territory residents or overseas parties. NCAT may still help the parties settle; if it does not, the matter may need to go to the Local or District Court.
• Bring your evidence. NCAT points to the purchase agreement, invoice or sales advice, warranties, receipts and quotes, photographs, and witness statements. Add your demand letter and the business's response, proof of payment, any independent expert report, evidence of consequential loss, your calculation of the amount claimed, and the exact orders you want NCAT to make.

Check whether your dispute has a specialist NSW pathway. Home-building, motor-vehicle, tenancy, strata, retirement-village and retail-lease disputes may have their own forms, NCAT case types, statutory warranties, preconditions or time limits. Confirm the right pathway before relying on the general sequence above.

What if the business refuses

If the business does not respond, keep evidence of delivery, the deadline you gave and any later communications. Arguments like "the warranty has expired" or "our policy is no refunds" do not override the statutory guarantees: NCAT applies the legislation and the evidence, not a business's internal policy.

If a party does not comply with an NCAT monetary order, separate court-based registration and enforcement steps may be required, depending on the type of order. Check NCAT and court guidance first.

A few other escalation options worth knowing:

• Systemic conduct. If the business shows a pattern of misleading behaviour, say so when you lodge with Fair Trading.
• The ACCC handles national systemic issues. It does not resolve individual complaints, but if the conduct is widespread an ACCC report can contribute to a broader investigation.

Common mistakes

Accepting "the warranty has expired" as the final word. A consumer guarantee can still apply well after the warranty period ends, depending on what a reasonable consumer would expect given the price, type and age of the goods.

Throwing out the faulty goods. Without the item it is much harder to prove the defect, and disposing of them can end your right to reject.

Overstating the claim. Speculative or disproportionate losses can undermine the core claim. Tie it to what you can establish: the cost of the goods, a repair, or the reduction in value. Section 259(4) does allow damages for reasonably foreseeable loss, provided you can show causation and that you acted reasonably to limit it.

Waiting too long, and assuming the ACL is the only clock. The consumer guarantees carry no fixed expiry, but an NCAT application does, and the section 262 rejection period runs on its own clock (see the filing checklist above). A damages claim against a manufacturer has its own: section 273 allows 3 years from when you first became, or ought reasonably to have become, aware that the guarantee had not been complied with. Court limitation periods are separate again. Delay also makes it harder to show the goods failed to comply with the guarantee when supplied.

Related reading

• Which tribunal or court for your consumer dispute?
• Business refused your refund? Here's what to do next
• Escalating a consumer complaint in Victoria
• Escalating a consumer complaint in the ACT
• Escalating a consumer complaint in the Northern Territory

Contact details for NSW Fair Trading and every other state and territory consumer body are at /agencies.

This article is general information about Australian Consumer Law, not legal advice. It also touches on complaint and escalation pathways (NSW Fair Trading, NCAT and the courts, the ACCC and AFCA) and limitation laws, whose scope, rules, thresholds and processes sit outside the ACL or can change. Confirm the current position with the relevant body before lodging. For advice on your specific case, see your state or territory consumer body — full list at /agencies.