PART A – CONSUMER LAW
Structure:
• Chapter 1—Introduction
o Includes definitions, including of ‘consumer’, ‘manufacturer’
• Chapter 2—General protections
o Part 2-1—Misleading or deceptive conduct o Part 2-2—Unconscionable conduct
o Part 2-3—Unfair contract terms
• Chapter 3—Specific protections o Part 3-1—Unfair practices o Part 3-2—Consumer transactions
o Part 3-3—Safety of consumer goods and product related services o Part 3-4—Information standards
o Part 3-5—Liability of manufacturers for goods with safety defects
• Chapter 4—Offences
o Part 4-1—relating to unfair practices o Part 4-2—relating to consumer transactions
o Part 4-3—relating to safety of consumer goods and product related services o Part 4-4—Offences relating to information standards
o Part 4-5—Offences relating to substantiation notices o Part 4-6—Defences
o Part 4-7—Miscellaneous
• Chapter 5—Enforcement o Part 5-1—Enforcement o Part 5-2—Remedies
o Part 5-3—Country of origin representations o Part 5-4—Remedies relating to guarantees
TOPIC 1 – CONSUMER GUARANTEES
Part 3-2 ACL – Contains regime of consumer guarantees that apply to supply of goods/services to consumers. If any of these rules are breached, consumer is entitled to remedy under Part 5-4 ACL.
INTRODUCTION
• X will argue that they are entitled to relief from a supplier for breaching a consumer guarantee under s52 ACL
• Part 3-2 Consumer transactions:
o Part 3-2 ACL contains a regime of consumer guarantees that applies to supply of goods/services to consumers. If any of these are beached, consumer is entitled to remedy under part 5-4 ACL
o Main guarantees: acceptable quality, fitness for any disclosed purpose, express warranties
• Goods not covered by Consumer guarantees o Bought before January 2011
o Goods bought from one-off sales by private sellers
o Goods sold by auction, where auctioneer acts as agent for the owner not covered by ss 54-59
o Online auctions through Ebay are not s 2 ‘sales by auction’ but can be online o Goods costing more than $40,000
o Where the buyer buys to on-sell or re-supply o The buyer wants to use, as part of a business to:
o Manufacture something else, or repair or otherwise use on other goods or fixtures
• Services not covered by Consumer guarantees o Services bought before January 2011
o Services costing more than $40,000 that are for commercial use
o Contracts for the transportation or storage of goods for the consumer’s business, trade, profession or occupation (s 63)
o Insurance contracts (s 63)
o Financial services- covered by ASIC Act o Architect and engineers
o Guarantee of fitness or services for a particular purpose does not apply o a supply of services of a professional nature by a qualified architect or engineer (s 61(4))
CONSUMER
• Consumer is a consumer under s 3 ACL because
• For goods - X is a consumer if:
o The goods cost less than $40,000 (s 3(1)(a)(i); or
o The goods are ordinarily acquired for personal, domestic or household use or consumption (s 3(1)(b)); or
o The goods are a vehicle or trailer acquired for the principle use of transporting goods on public roads (‘commercial road vehicle’) (s 3(1)(c))
o Not a consumer if acquired the goods for the purpose of (s 3(2)):
▪ (a) re-selling them
▪ (b) Using up or transforming the goods in trade or commerce:
• i. for a process of production or manufacture
• ii. For repairing or treating other goods or fixtures on land o This means that a supplier could be a consumer if they bought defective fixtures
(paintings from manufacturer that aren’t for sale to supplier’s customers)
• For services – X is a consumer if (s 3(3)):
o The amount paid or payable for the services, as worked out under subs (4) to (9), did not exceed $40,000 (s 3(3)(a)(i)); or
o The services were of a kind ordinarily acquired for personal, domestic or household use or consumption (s 3(3)(b))
MANUFACTURER – S7
• A ‘manufacturer’ is a person who:
o grows, extracts, produces, processes or assembles goods;
o holds himself or herself out to the public as the manufacturer of goods;
o causes or permits the name of the person, a name by which the person carries on business or a brand or mark of the person to be applied to goods supplied by the person
SUPPLY – S2
• In respect of goods: includes supply and re-supply by way of sale, exchange, lease, hire or hire- purchase;
• In respect of services: includes provide, grant or confer;
TRADE OR COMMERCE – S2
• Trade or commerce’ must be in the course of a supplier’s or manufacturer’s business or professional activity, including a non-profit business or activity.
EXCLUSION OF LIABILITY
• A term of a contract is void to the extent that it purports to (or has the effect to) exclude, restrict or modify: (s64)
o the application of the consumer o the exercise of rights under
o any liability of a person regarding guarantees the guarantees the guarantees