Unsolicited consumer agreements

An agreement is considered to be unsolicited if:

it is for the supply, in trade or commerce, of products or services to a consumer; and
a supplier/salesperson approaches or telephones a consumer without that consumer having invited this contact; and
negotiations take place over the phone, or in person at a location other than the supplier’s premises; and
the total value of the agreement is more than $100, or the value was not known at the time the agreement was made.

A negotiation includes any discussion or dealing directed towards the making of an agreement or proposed agreement.

An invitation to a supplier to quote for the supply of goods or services is not an invitation to negotiate for supply.

In the event of a dispute, the onus is on the business to prove that an agreement is not an unsolicited consumer agreement.

Businesses should also note that the Corporations Act 2001 prohibits unsolicited hawking of securities, certain financial products and managed investment products. More information is available from the Australian Securities and Investments Commission (ASIC) website.

Examples of unsolicited consumer agreements

Some typical examples of situations that may lead to an unsolicited agreement being made are:

door knocking households and offering to sell products or services, or inviting consumers to switch to a different service provider – see our Door-to-door sales page
telephoning consumers and offering to sell products or services – see our Telemarketing page
approaching consumers in the common area of a shopping centre and offering to sell products or services
leaving a missed call message on an answering machine for the consumer to respond.

The following situations may also be considered unsolicited approaches:

Case Study

Examples only (outcomes may differ in individual cases):

Harold fills out an entry form to a competition that is sponsored by a supplier, and one of the conditions of entry is that the entrant agrees to be contacted by the supplier about new product information. In this case Harold has not given his details as an invitation for the supplier to enter into negotiations. As such, if the supplier contacts Harold for that purpose, it may be considered an unsolicited approach.

Ayako asks a supplier to provide a quote (such as measuring for blinds). She has not invited the supplier to enter into negotiations, so if the supplier does attempt to negotiate with Ayako at the time of providing a quote, or later contacts her to negotiate a deal, then a resulting agreement would be considered an unsolicited consumer agreement. However, if a supplier leaves a quote with Ayako for deliberation and she then approaches the supplier to accept the quote or negotiate different terms, then this would not be considered an unsolicited consumer agreement.