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354 The Law Handbookfailure to comply relates to goods, thesupplier can choose between providing arepair or offering the consumer a replacementor refund.Where there is a major failure to complywith a guarantee pertaining to goods, theconsumer can choose between rejecting thegoods and choosing a refund or replacement,or keeping the goods and receiving compensationfor the reduction in value.Where there is a major failure to complywith a guarantee pertaining to services, theconsumer can choose between cancelling thecontract and receiving a refund, or keepingthe contract and receiving compensation forthe difference in value.In addition to the above, a consumer mayrecover damages for any loss or damagesuffered by the consumer because of afailure to comply with a guarantee pertainingto goods or services, if it was reasonablyforeseeable that the consumer would suffersuch loss or damage as a result of thefailure.[11.100] Unsolicited consumeragreementsDivision 2 of Part 3-2 regulates unsolicitedconsumer agreements.In summary, a person who makes unsolicitedcontact with consumers in order toenter an agreement for the supply of goodsor services must comply with a number ofrequirements. These include:• not contacting the consumer outside prescribedbusiness hours;• making certain disclosures to the consumerboth before commencing negotiationsand before the agreement is made;• ensuring the agreement is in writing andthat a copy is given to the consumerimmediately after the agreement is made(or within five business days if theagreement is negotiated by telephone);and• not accepting or requesting payment ormaking supplies during the ten daycooling off period.A consumer may terminate an unsolicitedagreement within ten days after the agreementwas made (or if the agreement wasnegotiated by telephone, within ten daysafter the consumer was given a copy of theagreement). A consumer may also cancel anunsolicited agreement within three or sixmonths if certain requirements have notbeen met. The agreement may be terminatedby the consumer giving the supplier writtenor oral notice of the consumer’s intention toterminate.[11.110] Injuries or damagefrom unsafe goodsA number of actions may be open to aperson who suffers injury from goods whichdo not meet the guarantees. The injuredperson may be able to rescind any contractand sue for the recovery of money paid.There may also be remedies available, suchas damages for breach. This ability mayhave been strengthened by the introductionof the definition of acceptability in the ACL.As well as an action for breach of contract,an injured person may have an action underthe law of torts for negligence. The ability toseek damages has been substantially modifiedby the Civil Liability Act 2002 (NSW)(see chapter 3, Accidents and compensation).Before a person may claim damages fornon-economic loss, it is necessary to showthat the injuries suffered are at least 15% of amost severe case.[11.120] Lay-by salesLay-by sales used to be very commontransactions though are less popular today.The provisions addressing lay-by sales areset out in the ACL at ss 188–191. Agreementsmust be in writing and a copy of theagreement provided to the consumer. If theagreement is terminated, the consumer isentitled to recover all monies paid, less anytermination fee, pursuant to the terms of theagreement.[11.130] RemediesThe ACL provides a broad range of remediesto ensure compliance. Some of thesehave already been addressed above. Inaddition, there is the general ability of acourt to order payment of compensation for