Pre-order delay rights Australia: when delivery keeps slipping

You paid up front for something that wasn't out yet. The release date slipped once, then again, and now the business is vague about when, or whether, it will arrive. The Australian Consumer Law (ACL) has a specific rule for businesses that take your money and don't deliver, and it applies to pre-orders and deposits as much as to anything else.

Quick answer

Whether the business told you when it would deliver, before it took your money, is the question that shapes your rights. Under section 36(4) of the ACL, a business that accepts payment must supply all the goods within the period it specified at or before accepting the payment or, if it specified none, within a reasonable time. That applies to a deposit or part payment too (section 36(7)).

What you are likely to pursue depends on what happened:

• A stated delivery date has passed. If you no longer want to wait, the practical step is a written demand for your money back, sent to the business that took your payment. Section 36 doesn't itself give you an automatic refund right: repayment comes by agreement, by cancelling under your contract, or through damages or a court or tribunal order (see below). The business may argue the delay was caused by someone else or by something beyond its control and that it took reasonable precautions and exercised due diligence; if both are true, the section 36(4) duty doesn't apply (section 36(5)).
• No date was given ("coming soon", "shipping later this year"). The test is a reasonable time. Once the delay goes beyond that, you can make the same written demand, though the business may dispute what was reasonable or rely on section 36(5). The ACCC says a delay doesn't necessarily mean the law was broken.
• The business never intended to supply, or there were reasonable grounds for believing it couldn't supply on time and it was, or ought reasonably to have been, aware of them. That may breach section 36(1) or 36(3), and a misleading delivery promise may breach section 18. Either can support a damages claim under section 236 for loss caused by it.
• The goods finally arrive but are faulty or not as described. If you acquired them as a consumer, the consumer guarantees then apply, and your remedy depends on whether the failure is major or can't be remedied.

If you paid recently by card, a chargeback may also be possible. If the business won't resolve it once you've written to it, your state or territory consumer body may help if your complaint meets its criteria, and a court or tribunal with jurisdiction can make binding orders.

What the law actually says

No consumer guarantee covers delivery time for goods. The reasonable-time guarantee in section 62 applies to services only. For a pre-order of goods, the controlling provision is section 36, "wrongly accepting payment", which is a separate rule rather than a consumer guarantee. It has three prohibitions and a duty to supply. A business must not accept payment if, at that time, it:

• intends not to supply the goods (section 36(1));
• intends to supply goods materially different from what you paid for (section 36(2)); or
• is aware, or ought reasonably to be aware, of reasonable grounds for believing it won't be able to supply within the period it specified or, if none, within a reasonable time (section 36(3)).

Having accepted payment, it must supply all the goods within the specified period or a reasonable time (section 36(4)). Two exceptions apply. The first is section 36(5): the failure was due to another person's act or omission or another cause beyond the business's control, and it took reasonable precautions and exercised due diligence to avoid the failure. Both limbs are needed. The second is section 36(6): the business offered different goods as a replacement and you agreed to receive them.

Delivery promises can also be misleading. Section 18 prohibits misleading or deceptive conduct in trade or commerce. A delivery date is a representation about a future matter. Under section 4 it is taken to be misleading if the business had no reasonable grounds for making it, and in a proceeding the business is taken not to have had reasonable grounds unless evidence to the contrary is adduced (though this doesn't place the burden of proof on it). If a business tells you "pre-orders are non-refundable" when you may be entitled to your money back, that may also be a false or misleading representation about your rights or remedies under section 29(1)(m).

What you can recover. For goods, the consumer guarantees give no remedy for non-supply. The statutory routes are:

• damages under section 236 for loss or damage suffered because of the contravention, which must be brought within 6 years after the day the cause of action accrued (section 236(2)); and
• court or tribunal orders under section 237 where you have suffered, or are likely to suffer, loss or damage because of the contravention. The orders must compensate you for that loss or prevent or reduce it, and can include an order directing the business to refund money (section 243(d)). The application must be made within 6 years after the cause of action accrued (section 237(3)).

Depending on your contract and the facts, you may also be able to cancel for the failure to deliver and recover what you paid, or pursue a payment dispute. The ACCC's guidance on not receiving products or services you've paid for says that where a business can't supply on time or within a reasonable time, "the business must provide a solution". That is the ACCC's position, not a separate statutory right. The ACCC also says dropshipping businesses should tell consumers about stock availability, where stock comes from and likely delivery times.

The pre-order terms. A term letting the business delay indefinitely, keep your deposit whatever happens or change the price without letting you cancel may be an unfair term. The unfair contract terms protections (sections 23 to 25) cover terms of a consumer or small business standard form contract, and an unfair term is void (section 23(1)). If the business disputes whether a term is unfair, a court or tribunal decides. The contract continues if it can operate without the term. The examples in section 25 include terms that let only one party avoid or limit performance, or vary the upfront price without the other party being able to terminate. Proposing or relying on an unfair term in such a contract can also be a separate contravention (section 23(2A) and (2C)).

The table shows which provision sets the business's duty. A breach doesn't by itself entitle you to a refund; see what you can recover above.

When this applies (and when it doesn't)

The supply must be in trade or commerce. Section 36 applies to businesses, including most sole traders. A genuine one-off private sale, such as someone reselling their pre-order slot on a classifieds site, doesn't carry these rights.

Check who you actually paid. Identify the supplier from the checkout screen, the receipt and the terms that applied when you ordered, rather than assuming the site you paid through is liable. On marketplaces, the ACCC says consumer guarantee rights run against "the seller you buy from, not the platform itself", though the platform may be able to help. If the platform itself sold the goods, it is that seller. Otherwise, whether the platform has any responsibility of its own depends on its role and what it told you. See the ACCC's buying online guidance.

Overseas sellers. According to the ACCC, an overseas business that supplies goods directly to consumers in Australia must follow the ACL, including the consumer guarantees. The ACL doesn't cover you if the business doesn't directly offer its products in Australia, if the goods go to an overseas address and are then forwarded, or if the whole transaction happens overseas. In practice, getting a remedy from an overseas business can be hard.

If the goods finally arrive faulty. Late delivery and faulty goods are different problems. If you acquired the goods as a consumer (section 3), the consumer guarantees apply, including acceptable quality (section 54) and matching the description (section 56), judged at the time of supply. Those remedies run against the business that supplied you, and what you can ask for depends on whether the failure is major or can't be remedied (section 259). You may also have a damages claim against the manufacturer under section 271, which must start within 3 years after you first became, or ought reasonably to have become, aware that the guarantee had not been complied with (section 273). See what a major failure means and how long you have to return faulty goods.

Services are different. This article covers pre-ordered goods. If you prepaid for a service, section 36 still covers non-supply, and the services guarantees (including supply within a reasonable time where none is fixed, section 62) and their remedies also apply, though you can't take action under section 267 for a section 62 failure that occurred only because of an act, default or omission of, or a representation made by, someone other than the supplier (or its agent or employee), or a cause independent of human control that occurred after the services were supplied (section 267(1)(c)). Your contract rights are separate from that exception. See services that go wrong.

What to do today

1. Capture what was promised. Screenshot the listing, the delivery estimate, the order confirmation and the terms as they stood when you ordered, if you can still find them. Keep every delay email. What was said before you paid decides which limb of section 36(4) applies.
2. Check how and when you were charged, and act early on a chargeback. If you paid by card, ask your card issuer whether a chargeback may be available. The ACCC says that in some situations a card provider may reverse a charge where you paid by credit card and didn't receive the product. If you used buy now pay later, ask the provider about its own dispute process, which is separate from a chargeback.
   • Time limits follow the card scheme's or provider's rules, not the ACL, and can start from different dates, including when you expected delivery. Check now rather than after another slip.
   • Contact the business first. AFCA says not doing so may affect your ability to request a chargeback.
   • Describe the dispute accurately: goods not supplied, not an unauthorised transaction.
   • A chargeback may not succeed, and there is no chargeback right for a change of mind.
3. Write to the business. Include your order number, payment date, the amount paid and the delivery period promised (or the time that has passed if none was given). Say that section 36(4) requires supply within that period or a reasonable time. Then ask for either a firm delivery date or cancellation and a refund to your original payment method. Set a deadline such as 14 days (a practical default, not an ACL requirement). fairgo can generate a demand letter for you to send under your own name.
4. Be careful what you agree to. If you accept a different product offered as a replacement, the exception in section 36(6) may mean the original supply duty no longer applies. Agreeing in writing to a new date may vary your contract, depending on what you agree, although the section 36(4) period is the one specified at or before you paid. A voucher or store credit isn't the money you're asking for. Before signing anything described as "full and final", get advice. A full and final settlement or release may end your claim, and writing "under protest" doesn't necessarily preserve your rights.
5. Record any losses. If the delay cost you money, keep receipts. Examples include paying more to buy elsewhere, or missing a planned use. Damages under section 236 cover loss suffered because of the contravention, and you'll need evidence of it. Under general legal principles, loss you could reasonably have avoided may not be recoverable, and you can't recover the same loss twice.
6. If the goods arrive faulty, document it straight away. Take photos, note the date and keep the packaging. If the business disputes the cause, a written opinion from an independent repairer or technician may help. It should cover the cause, whether and how the fault can be fixed, and the cost. If the goods may be unsafe, stop using them and check for a recall on the ACCC's Product Safety site. Before handing a device over for repair, back up your data and read the written repair notice the repairer must give you.

What if the business refuses

If the deadline passes, or the business keeps pushing the date without a refund, you have these options:

Your state or territory consumer protection body. It may help, for example by contacting the business or conciliating, if your complaint meets its criteria. Most expect you to have tried to resolve the matter with the business first, and eligibility rules vary by state and dispute type (in the ACT, for example, statutory conciliation applies only where the remedy you seek is worth $5,000 or less). These bodies don't make binding orders in ordinary consumer disputes and can't make the business settle. Contact details are at /agencies.

A tribunal or court with jurisdiction. The right forum depends on the dispute type and amount, so a tribunal or court is not the automatic next step. In NSW, Victoria, Queensland, the ACT and the NT, a tribunal (NCAT, VCAT, QCAT, ACAT or NTCAT) hears many consumer claims within its limits. In Western Australia, South Australia and Tasmania, ordinary consumer claims go to the Magistrates Court. Jurisdiction depends on each forum's enabling legislation, the type of claim and the amount, so confirm the forum and its current thresholds on the official site before filing. You can usually run a claim without a lawyer, though some forums restrict legal representation (QCAT, for example, requires permission). Check current filing fees on the official site, and ask about fee exemptions, reductions or deferrals if cost is a concern. Our guide to choosing the right tribunal or court has more. If you and the trader are individuals living in different states, a state tribunal that isn't a "court of a State" may lack power to decide the dispute, because it falls within federal jurisdiction. NCAT and VCAT can't decide such disputes, and the issue isn't necessarily confined to them, so confirm jurisdiction with the forum before filing; the claim may need to go to a court. This issue doesn't arise where the business is a company.

Time limits. The ACL sets no single warranty-style expiry, but limitation laws and forum rules apply. A section 236 damages claim must start within 6 years after the cause of action accrued. Delay won't help your evidence, so act while the records are fresh.

The ACCC. The ACCC investigates systemic conduct rather than individual disputes, so it won't resolve your claim. Reporting a pattern of conduct can still be worthwhile, such as a seller taking pre-orders it repeatedly fails to fill. If the business has gone bust, the ACCC says there are time limits on chargebacks, so contact your financial institution straight away.

Common mistakes

• Treating "pre-order" as a rights-free zone. Section 36 applies whether you paid in full or left a deposit, and the label doesn't change it.
• Citing the wrong rule. No consumer guarantee covers delivery time for goods. In your demand, refer to section 36 (and section 18 if the promise was misleading), your contract and the outcome you want, and save the guarantees for goods that arrive faulty.
• Waiting through slip after slip. Each extra month can narrow chargeback options and blur the evidence. Put the problem in writing at the first missed date.
• Accepting a substitute or credit without thinking it through. A replacement you agree to can end the original supply duty (section 36(6)), and a voucher isn't a refund.
• Doing everything by phone. Calls leave no record. Follow any call with an email summarising what was said.
• Assuming the platform owes you. Check who sold the goods before you write, so your demand goes to the right business.

Related reading

• Online order never arrived: your rights
• Deposits and cancelled orders: your rights
• Business refused your refund? Here's what to do next
• Your rights when buying online under the ACL
• Section 18 misleading conduct: real examples
• Bought from overseas or Amazon: does the ACL apply?

This article is general information about Australian Consumer Law, not legal advice. It also touches on complaint and escalation pathways (state and territory consumer bodies, tribunals and courts, the ACCC, card chargeback rules and buy now pay later providers' dispute processes) 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.