Schedule 2—The Australian Consumer Law
Note: See Part XI.
Chapter 1—Introduction
1 Application of this Schedule
2 Definitions
3 Meaning of consumer
4 Misleading representations with respect to future matters
5 When donations are treated as supplies or acquisitions
6 Related bodies corporate
7 Meaning of manufacturer
8 Goods affixed to land or premises
9 Meaning of safety defect in relation to goods
10 Asserting a right to payment
11 References to acquisition, supply and resupply
12 Application of Schedule in relation to leases and licences of land and buildings
13 Loss or damage to include injury
14 Meaning of continuing credit contract
15 Contraventions of this Schedule
16 Severability
17 References to provisions in this Schedule
Chapter 2—General protections
Part 21—Misleading or deceptive conduct
18 Misleading or deceptive conduct
19 Application of this Part to information providers
Part 22—Unconscionable conduct
20 Unconscionable conduct within the meaning of the unwritten law
21 Unconscionable conduct
22 Unconscionable conduct in business transactio
Chapter 3—Specific protections
Part 32—Consumer transactions
Division 1—Consumer guarantees
Subdivision A—Guarantees relating to the supply of goods
51 Guarantee as to title
52 Guarantee as to undisturbed possession
53 Guarantee as to undisclosed securities etc.
54 Guarantee as to acceptable quality
55 Guarantee as to fitness for any disclosed purpose etc.
56 Guarantee relating to the supply of goods by description
57 Guarantees relating to the supply of goods by sample or demonstration model
58 Guarantee as to repairs and spare parts
59 Guarantee as to express warranties
Subdivision B—Guarantees relating to the supply of services
60 Guarantee as to due care and skill
61 Guarantees as to fitness for a particular purpose etc.
62 Guarantee as to reasonable time for supply
63 Services to which this Subdivision does not apply
Subdivision C—Guarantees not to be excluded etc. by contract
64 Guarantees not to be excluded etc. by contract
64A Limitation of liability for failures to comply with guarantees
Subdivision D—Miscellaneous
65 Application of this Division to supplies of gas, electricity and telecommunications
66 Display notices
67 Conflict of laws
68 Convention on Contracts for the International Sale of Goods
Part 35—Liability of manufacturers for goods with safety defects
Division 1—Actions against manufacturers for goods with safety defects
138 Liability for loss or damage suffered by an injured individual
139 Liability for loss or damage suffered by a person other than an injured individual
140 Liability for loss or damage suffered by a person if other goods are destroyed or damaged
141 Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged
142 Defences to defective goods actions
Division 2—Defective goods actions
143 Time for commencing defective goods actions
144 Liability joint and several
145 Survival of actions
146 No defective goods action where workers’ compensation law etc. applies
147 Unidentified manufacturer
148 Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard
149 Representative actions by the regulator
Division 3—Miscellaneous
150 Application of all or any provisions of this Part etc. not to be excluded or modified
Part 54—Remedies relating to guarantees
Division 1—Action against suppliers
Subdivision A—Action against suppliers of goods
259 Action against suppliers of goods
260 When a failure to comply with a guarantee is a major failure
261 How suppliers may remedy a failure to comply with a guarantee
262 When consumers are not entitled to reject goods
263 Consequences of rejecting goods
264 Replaced goods
265 Termination of contracts for the supply of services that are connected with rejected goods
266 Rights of gift recipients
Subdivision B—Action against suppliers of services
267 Action against suppliers of services
268 When a failure to comply with a guarantee is a major failure
269 Termination of contracts for the supply of services
270 Termination of contracts for the supply of goods that are connected with terminated services
Division 2—Action for damages against manufacturers of goods
271 Action for damages against manufacturers of goods
272 Damages that may be recovered by action against manufacturers of goods
273 Time limit for actions against manufacturers of goods
Division 3—Miscellaneous
274 Indemnification of suppliers by manufacturers
275 Limitation of liability etc.
276 This Part not to be excluded etc. by contract
276A Limitation in certain circumstances of liability of manufacturer to seller
277 Representative actions by the regulator
Chapter 1—Introduction
1 Application of this Schedule
This Schedule applies to the extent provided by:
(a) Part XI of the Competition and Consumer Act; or
(b) an application law.
2 Definitions
(1) In this Schedule:
ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
acceptable quality : see sections 54(2) to (7).
ACN has the meaning given by section 9 of the Corporations Act 2001.
acquire includes:
(a) in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hirepurchase; and
(b) in relation to services—accept.
Note: Section 5 deals with when receipt of a donation is an acquisition.
adverse publicity order : see section 247(2).
affected person , in relation to goods, means:
(a) a consumer who acquires the goods; or
(b) a person who acquires the goods from the consumer (other than for the purpose of resupply); or
(c) a person who derives title to the goods through or under the consumer.
agreement document : see section 78(2).
applicable industry code has the meaning given by section 51ACA(1) of the Competition and Consumer Act.
application law has the same meaning as in section 140 of the Competition and Consumer Act.
article includes a token, card or document.
ASIC means the Australian Securities and Investments Commission.
assert a right to payment : see section 10(1).
associate regulator :
(a) for the purposes of the application of this Schedule as a law of the Commonwealth—means a body that is, for the purposes of the application of this Schedule as a law of a State or a Territory, the regulator within the meaning of the application law of the State or Territory; or
(b) for the purposes of the application of this Schedule as a law of a State or a Territory—means:
(i) the Commission; or
(ii) a body that is, for the purposes of the application of this Schedule as a law of another State or a Territory, the regulator within the meaning of the application law of that other State or Territory.
authority , in relation to a State or a Territory (including an external Territory), means:
(a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or
(b) an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.
authority of the Commonwealth means:
(a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or
(b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.
banker has the same meaning as in section 4(1) of the Competition and Consumer Act.
ban period for an interim ban: see section 111(1).
business includes a business not carried on for profit.
business day , in relation to an unsolicited consumer agreement, means a day that is not:
(a) a Saturday or Sunday; or
(b) a public holiday in the place where the agreement was made.
business or professional relationship includes a relationship between employer and employee, or a similar relationship.
call on , in relation to negotiating an unsolicited consumer agreement, does not include call by telephone.
Commission has the same meaning as in section 4(1) of the Competition and Consumer Act.
Commonwealth mandatory standard , in relation to goods, means a mandatory standard in respect of the goods imposed by a law of the Commonwealth.
Commonwealth Minister means the Minister who administers Part XI of the Competition and Consumer Act.
Competition and Consumer Act means the Competition and Consumer Act 2010.
consumer : see section 3.
consumer contract : see section 23(3).
consumer goods means goods that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption, and includes any such goods that have become fixtures since the time they were supplied if:
(a) a recall notice for the goods has been issued; or
(b) a person has voluntarily taken action to recall the goods.
continuing credit contract : see section 14(1).
contravening conduct : see section 239(1)(a)(i).
court , in relation to a matter, means any court having jurisdiction in the matter.
covering includes a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper.
credit card : see section 39(5).
credit provider means a person providing, or proposing to provide, in the course of a business carried on by the person, credit to consumers in relation to the acquisition of goods or services.
dealer : see section 71.
debit card : see section 39(6).
declared term : see section 239(1)(a)(ii).
defective goods action means an action under section 138, 139, 140 or 141, and includes such an action because of section 138(3) or 145.
disclosed purpose : see section 55(2).
displayed price : see sections 47(2) to (5).
document includes:
(a) a book, plan, paper, parchment or other material on which there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and
(b) a disc, tape, paper or other device from which sounds or messages are capable of being reproduced.
enforcement proceeding means:
(a) a proceeding for an offence against Chapter 4; or
(b) a proceeding instituted under Chapter 5 (other than under sections 237 and 239).
evidential burden , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
express warranty , in relation to goods, means an undertaking, assertion or representation:
(a) that relates to:
(i) the quality, state, condition, performance or characteristics of the goods; or
(ii) the provision of services that are or may at any time be required for the goods; or
(iii) the supply of parts that are or may at any time be required for the goods; or
(iv) the future availability of identical goods, or of goods constituting or forming part of a set of which the goods, in relation to which the undertaking, assertion or representation is given or made, form part; and
(b) that is given or made in connection with the supply of the goods, or in connection with the promotion by any means of the supply or use of the goods; and
(c) the natural tendency of which is to induce persons to acquire the goods.
financial product has the meaning given by section 12BAA of the Australian Securities and Investments Commission Act 2001.
financial service has the meaning given by section 12BAB of the Australian Securities and Investments Commission Act 2001.
free item includes a free service.
goods includes:
(a) ships, aircraft and other vehicles; and
(b) animals, including fish; and
(c) minerals, trees and crops, whether on, under or attached to land or not; and
(d) gas and electricity; and
(e) computer software; and
(f) secondhand goods; and
(g) any component part of, or accessory to, goods.
grown : see section 255(7).
GST has the meaning given by section 1951 of the A New Tax System (Goods and Services Tax) Act 1999.
industry code has the meaning given by section 51ACA of the Competition and Consumer Act.
information provider : see sections 19(5) and (6).
information standard : see sections 134(1) and 135(1).
inner container includes any container into which goods are packed, other than a shipping or airline container, pallet or other similar article.
interest , in relation to land, means:
(a) a legal or equitable estate or interest in the land; or
(b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or
(c) a right, power or privilege over, or in connection with, the land.
interim ban : see sections 109(1) and (2).
involved : a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced, whether by threats or promises or otherwise, the contravention; or
(c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
joint liability proceedings means proceedings relating to the joint and several liability under section 278 of a linked credit provider and a supplier of goods or services.
label includes a band or ticket.
layby agreement : see section 96(3).
linked credit contract : see section 278(2).
linked credit provider , in relation to a supplier of goods or services, means a credit provider:
(a) with whom the supplier has a contract, arrangement or understanding relating to:
(i) the supply to the supplier of goods in which the supplier deals; or
(ii) the business carried on by the supplier of supplying goods or services; or
(iii) the provision to persons to whom goods or services are supplied by the supplier of credit in respect of payment for those goods or services; or
(b) to whom the supplier, by arrangement with the credit provider, regularly refers persons for the purpose of obtaining credit; or
(c) whose forms of contract, forms of application or offers for credit are, by arrangement with the credit provider, made available to persons by the supplier; or
(d) with whom the supplier has a contract, arrangement or understanding under which contracts, applications or offers for credit from the credit provider may be signed by persons at premises of the supplier.
listed public company has the meaning given by section 9951(1) the Income Tax Assessment Act 1997.
loan contract means a contract under which a person in the course of a business carried on by that person provides or agrees to provide, whether on one or more occasions, credit to a consumer in one or more of the following ways:
(a) by paying an amount to, or in accordance with the instructions of, the consumer;
(b) by applying an amount in satisfaction or reduction of an amount owed to the person by the consumer;
(c) by varying the terms of a contract under which money owed to the person by the consumer is payable;
(d) by deferring an obligation of the consumer to pay an amount to the person;
(e) by taking from the consumer a bill of exchange or other negotiable instrument on which the consumer (whether alone or with another person or other persons) is liable as drawer, acceptor or endorser.
major failure : see sections 260 and 268.
mandatory standard , in relation to goods, means a standard:
(a) for the goods or anything relating to the goods; and
(b) that, under a law of the Commonwealth, a State or a Territory, must be complied with when the goods are supplied by their manufacturer, being a law creating an offence or liability if there is such noncompliance;
but does not include a standard which may be complied with by meeting a higher standard.
manufacturer : see section 7.
market has the same meaning as in section 4E of the Competition and Consumer Act.
materials , in relation to goods, means:
(a) if the goods are unmanufactured raw products—those products; and
(b) if the goods are manufactured goods—all matter or substances used or consumed in the manufacture of the goods (other than matter or substances that are treated as overheads); and
(c) in either case—the inner containers in which the goods are packed.
mixed supply : see section 3(11).
National Credit Code has the meaning given by section 5(1) of the National Consumer Credit Protection Act 2009.
negotiated by telephone : see section 78(3).
negotiation : see section 72.
new participant : see section 45(2).
nonlinked credit contract : see section 287(5).
nonparty consumer means:
(a) in relation to conduct referred to in section 239(1)(a)(i)—a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct; and
(b) in relation to a term of a consumer contract referred to in section 239(1)(a)(ii)—a person who is not, or has not been, a party to an enforcement proceeding in relation to the term.
participant , in a pyramid scheme, means a person who participates in the scheme.
participate , in a pyramid scheme: see section 44(3).
participation payment : see section 45(1)(a).
permanent ban : see sections 114(1) and (2).
premises means:
(a) an area of land or any other place (whether or not it is enclosed or built on); or
(b) a building or other structure; or
(c) a vehicle, vessel or aircraft; or
(d) a part of any such premises.
price , of goods or services, means:
(a) the amount paid or payable (including any charge of any description) for their acquisition; or
(b) if such an amount is not specified because the acquisition is part only of a transaction for which a total amount is paid or payable:
(i) the lowest amount (including any charge of any description) for which the goods or services could reasonably have been acquired from the supplier at the time of the transaction or, if not from the supplier, from another supplier; or
(ii) if they could not reasonably have been acquired separately from another supplier—their value at the time of the transaction.
prior negotiations or arrangements , in relation to the acquisition of goods by a consumer, means negotiations or arrangements:
(a) that were conducted or made with the consumer by another person in the course of a business carried on by the other person; and
(b) that induced the consumer to acquire the goods, or otherwise promoted the acquisition of the goods by the consumer.
product related service means a service for or relating to:
(a) the installation of consumer goods of a particular kind; or
(b) the maintenance, repair or cleaning of consumer goods of a particular kind; or
(c) the assembly of consumer goods of a particular kind; or
(d) the delivery of consumer goods of a particular kind;
and, without limiting paragraphs (a) to (d), includes any other service that relates to the supply of consumer goods of that kind.
proof of transaction : see section 100(4).
publish , in relation to an advertisement, means include in a publication intended for sale or public distribution (whether to the public generally or to a restricted class or number of persons) or for public display (including in an electronic form).
pyramid scheme : see section 45(1).
recall notice : see section 122(1).
recovery period : see section 41(4).
recruitment payment : see section 45(1)(b).
regulations means regulations made under section 139G of the Competition and Consumer Act.
regulator :
(a) for the purposes of the application of this Schedule as a law of the Commonwealth—means the Commission; or
(b) for the purposes of the application of this Schedule as a law of a State or a Territory—has the meaning given by the application law of the State or Territory.
rejection period : see section 262(2).
related , in relation to a body corporate: see section 6.
related contract or instrument : see section 83(2).
rely on , in relation to a term of a consumer contract, includes the following:
(a) attempt to enforce the term;
(b) attempt to exercise a right conferred, or purportedly conferred, by the term;
(c) assert the existence of a right conferred, or purportedly conferred, by the term.
responsible Minister means:
(a) the Commonwealth Minister; or
(b) the Minister of a State who administers the application law of the State; or
(c) the Minister of a Territory who administers the application law of the Territory.
safety defect , in relation to goods: see section 9.
safety standard : see sections 104(1) and 105(1).
sale by auction , in relation to the supply of goods by a person, means a sale by auction that is conducted by an agent of the person (whether the agent acts in person or by electronic means).
send includes deliver, and sent and sender have corresponding meanings.
serious injury or illness means an acute physical injury or illness that requires medical or surgical treatment by, or under the supervision of, a medical practitioner or a nurse (whether or not in a hospital, clinic or similar place), but does not include:
(a) an ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence, or aggravation, of such an ailment, disorder, defect or morbid condition.
services includes:
(a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and
(b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:
(i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or
(ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii) a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or
(iv) a contract of insurance; or
(v) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or
(vi) any contract for or in relation to the lending of money;
but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.
share includes stock.
ship has the meaning given by section 3(1) of the Admiralty Act 1988.
single price : see section 48(7).
substantially transformed , in relation to goods: see section 255(3).
substantiation notice means a notice under section 219.
substantiation notice compliance period : see section 221(2).
supply , when used as a verb, includes:
(a) in relation to goods—supply (including resupply) by way of sale, exchange, lease, hire or hirepurchase; and
(b) in relation to services—provide, grant or confer;
and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.
Note: Section 5 deals with when a donation is a supply.
supply of limited title : see section 51(2).
telecommunications service : see section 65(2).
termination charge : see section 97(2).
termination period , in relation to an unsolicited consumer agreement, means the period within which the consumer under the agreement is, under section 82 or under the agreement, entitled to terminate the agreement.
tied continuing credit contract means a continuing credit contract under which a credit provider provides credit in respect of the payment by a consumer for goods or services supplied by a supplier in relation to whom the credit provider is a linked credit provider.
tied loan contract means a loan contract entered into between a credit provider and a consumer where:
(a) the credit provider knows, or ought reasonably to know, that the consumer enters into the loan contract wholly or partly for the purposes of payment for goods or services supplied by a supplier; and
(b) at the time the loan contract is entered into the credit provider is a linked credit provider of the supplier.
trade or commerce means:
(a) trade or commerce within Australia; or
(b) trade or commerce between Australia and places outside Australia;
and includes any business or professional activity (whether or not carried on for profit).
transparent :
(a) in relation to a document—means:
(i) expressed in reasonably plain language; and
(ii) legible; and
(iii) presented clearly; and
(b) in relation to a term of a consumer contract—see section 24(3).
unfair , in relation to a term of a consumer contract: see section 24(1).
unsolicited consumer agreement : see section 69.
unsolicited goods means goods sent to a person without any request made by the person or on his or her behalf.
unsolicited services means services supplied to a person without any request made by the person or on his or her behalf.
upfront price : see section 26(2).
warranty against defects : see section 102(3).
(2) In this Schedule:
(a) a reference to engaging in conduct is a reference to doing or refusing to do any act, including:
(i) the making of, or the giving effect to a provision of, a contract or arrangement; or
(ii) the arriving at, or the giving effect to a provision of, an understanding; or
(iii) the requiring of the giving of, or the giving of, a covenant; and
(b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), is a reference to the doing of or the refusing to do any act, including:
(i) the making of, or the giving effect to a provision of, a contract or arrangement; or
(ii) the arriving at, or the giving effect to a provision of, an understanding; or
(iii) the requiring of the giving of, or the giving of, a covenant; and
(c) a reference to refusing to do an act includes a reference to:
(i) refraining (otherwise than inadvertently) from doing that act; or
(ii) making it known that that act will not be done; and
(d) a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.
3 Meaning of consumer
Acquiring goods as a consumer
(1) A person is taken to have acquired particular goods as a consumer if, and only if:
(a) the amount paid or payable for the goods, as worked out under subsections (4) to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is prescribed for the purposes of this paragraph—that greater amount; or
(b) the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or
(c) the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads.
(2) However, subsection (1) does not apply if the person acquired the goods, or held himself or herself out as acquiring the goods:
(a) for the purpose of resupply; or
(b) for the purpose of using them up or transforming them, in trade or commerce:
(i) in the course of a process of production or manufacture; or
(ii) in the course of repairing or treating other goods or fixtures on land.
Acquiring services as a consumer
(3) A person is taken to have acquired particular services as a consumer if, and only if:
(a) the amount paid or payable for the services, as worked out under subsections (4) to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is prescribed for the purposes of subsection (1)(a)—that greater amount; or
(b) the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.
Amounts paid or payable for purchases
(4) For the purposes of subsection (1) or (3), the amount paid or payable for goods or services purchased by a person is taken to be the price paid or payable by the person for the goods or services, unless subsection (5) applies.
(5) For the purposes of subsection (1) or (3), if a person purchased goods or services by a mixed supply and a specified price was not allocated to the goods or services in the contract under which they were purchased, the amount paid or payable for goods or services is taken to be:
(a) if, at the time of the acquisition, the person could have purchased from the supplier the goods or services other than by a mixed supply—the price at which they could have been purchased from the supplier; or
(b) if:
(i) paragraph (a) does not apply; but
(ii) at the time of the acquisition, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply;
the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or
(c) if, at the time of the acquisition, goods or services of the kind acquired could not have been purchased from any supplier except by a mixed supply—the value of the goods or services at that time.
Amounts paid or payable for other acquisitions
(6) For the purposes of subsection (1) or (3), the amount paid or payable for goods or services acquired by a person other than by way of purchase is taken to be the price at which, at the time of the acquisition, the person could have purchased the goods or services from the supplier, unless subsection (7) or (8) applies.
(7) For the purposes of subsection (1) or (3), if:
(a) goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from the supplier, or could have been purchased only by a mixed supply; but
(b) at that time, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply;
the amount paid or payable for the goods or services is taken to be the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier.
(8) For the purposes of subsection (1) or (3), if goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from any supplier other than by a mixed supply, the amount paid or payable for the goods or services is taken to be the value of the goods or services at that time.
Amounts paid or payable for obtaining credit
(9) If:
(a) a person obtains credit in connection with the acquisition of goods or services by him or her; and
(b) the amount paid or payable by him or her for the goods or services is increased because he or she so obtains credit;
obtaining the credit is taken for the purposes of subsection (3) to be the acquisition of a service, and the amount paid or payable by him or her for the service of being provided with the credit is taken to include the amount of the increase.
Presumption that persons are consumers
(10) If it is alleged in any proceeding under this Schedule, or in any other proceeding in respect of a matter arising under this Schedule, that a person was a consumer in relation to particular goods or services, it is presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services.
Mixed supplies
(11) A purchase or other acquisition of goods or services is made by a mixed supply if the goods or services are purchased or acquired together with other property or services, or together with both other property and other services.
Supplies to consumers
(12) In this Schedule, a reference to a supply of goods or services to a consumer is a reference to a supply of goods or services to a person who is taken to have acquired them as a consumer.
4 Misleading representations with respect to future matters
(1) If:
(a) a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and
(b) the person does not have reasonable grounds for making the representation;
the representation is taken, for the purposes of this Schedule, to be misleading.
(2) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:
(a) a party to the proceeding; or
(b) any other person;
the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or
(b) have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.
(4) Subsection (1) does not limit by implication the meaning of a reference in this Schedule to:
(a) a misleading representation; or
(b) a representation that is misleading in a material particular; or
(c) conduct that is misleading or is likely or liable to mislead;
and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.
5 When donations are treated as supplies or acquisitions
(1) For the purposes of this Schedule, other than Parts 33, 34, 43 and 44:
(a) a donation of goods or services is not treated as a supply of the goods or services unless the donation is for promotional purposes; and
(b) receipt of a donation of goods or services is not treated as an acquisition of the goods or services unless the donation is for promotional purposes.
(2) For the purposes of Parts 33, 34, 43 and 44:
(a) any donation of goods or services is treated as a supply of the goods or services; and
(b) receipt of any donation of goods or services is treated as an acquisition of the goods or services.
6 Related bodies corporate
(1) A body corporate is taken to be related to another body corporate if the bodies corporate would, under section 4A(5) of the Competition and Consumer Act, be deemed to be related to each other.
(2) In proceedings under this Schedule, it is presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.
7 Meaning of manufacturer
(1) A manufacturer includes the following:
(a) a person who grows, extracts, produces, processes or assembles goods;
(b) a person who holds himself or herself out to the public as the manufacturer of goods;
(c) a person who 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;
(d) a person (the first person ) who causes or permits another person, in connection with:
(i) the supply or possible supply of goods by that other person; or
(ii) the promotion by that other person by any means of the supply or use of goods;
to hold out the first person to the public as the manufacturer of the goods;
(e) a person who imports goods into Australia if:
(i) the person is not the manufacturer of the goods; and
(ii) at the time of the importation, the manufacturer of the goods does not have a place of business in Australia.
(2) For the purposes of subsection (1)(c):
(a) a name, brand or mark is taken to be applied to goods if:
(i) it is woven in, impressed on, worked into or annexed or affixed to the goods; or
(ii) it is applied to a covering, label, reel or thing in or with which the goods are supplied; and
(b) if the name of a person, a name by which a person carries on business or a brand or mark of a person is applied to goods, it is presumed, unless the contrary is established, that the person caused or permitted the name, brand or mark to be applied to the goods.
(3) If goods are imported into Australia on behalf of a person, the person is taken, for the purposes of paragraph (1)(e), to have imported the goods into Australia.
8 Goods affixed to land or premises
For the purposes of this Schedule, goods are taken to be supplied to a consumer even if they are affixed to land or premises at the time of the supply.
9 Meaning of safety defect in relation to goods
(1) For the purposes of this Schedule, goods have a safety defect if their safety is not such as persons generally are entitled to expect.
(2) In determining the extent of the safety of goods, regard is to be given to all relevant circumstances, including:
(a) the manner in which, and the purposes for which, they have been marketed; and
(b) their packaging; and
(c) the use of any mark in relation to them; and
(d) any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and
(e) what might reasonably be expected to be done with or in relation to them; and
(f) the time when they were supplied by their manufacturer.
(3) An inference that goods have a safety defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer goods of the same kind were supplied.
(4) An inference that goods have a safety defect is not to be made only because:
(a) there was compliance with a Commonwealth mandatory standard for them; and
(b) that standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by their manufacturer.
10 Asserting a right to payment
(1) A person is taken to assert a right to payment from another person if the person:
(a) makes a demand for the payment or asserts a present or prospective right to the payment; or
(b) threatens to bring any legal proceedings with a view to obtaining the payment; or
(c) places or causes to be placed the name of the other person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining the payment; or
(d) invokes or causes to be invoked any other collection procedure, or threatens to do so, with a view to obtaining the payment; or
(e) sends any invoice or other document that:
(i) states the amount of the payment; or
(ii) sets out the price of unsolicited goods or unsolicited services; or
(iii) sets out the charge for placing, in a publication, an entry or advertisement;
and does not contain a statement, to the effect that the document is not an assertion of a right to a payment, that complies with any requirements prescribed by the regulations.
(2) For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a person is taken to have been sent by that person unless the contrary is established.
11 References to acquisition, supply and resupply
In this Schedule:
(a) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods pursuant to a supply of the goods; and
(b) a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services; and
(c) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both; and
(d) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; and
(e) a reference to the resupply of goods acquired from a person includes a reference to:
(i) a supply of the goods to another person in an altered form or condition; and
(ii) a supply to another person of goods in which the firstmentioned goods have been incorporated; and
(f) a reference to the resupply of services (the original services ) acquired from a person (the original supplier ) includes a reference to:
(i) a supply of the original services to another person in an altered form or condition; and
(ii) a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.
12 Application of Schedule in relation to leases and licences of land and buildings
In this Schedule:
(a) a reference to a contract includes a reference to a lease of, or a licence in respect of, land or a building or part of a building (despite the express references in this Schedule to such leases or licences); and
(b) a reference to making or entering into a contract, in relation to such a lease or licence, is a reference to granting or taking the lease or licence; and
(c) a reference to a party to a contract, in relation to such a lease or licence, includes a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.
13 Loss or damage to include injury
In this Schedule:
(a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and
(b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.
14 Meaning of continuing credit contract
(1) If:
(a) a person (the creditor ), in the course of a business carried on by the creditor, agrees with a consumer to provide credit to the consumer in relation to:
(i) payment for goods or services; or
(ii) cash supplied by the creditor to the consumer from time to time; or
(iii) payment by the creditor to another person in relation to goods or services, or cash, supplied by that other person to the consumer from time to time; and
(b) the creditor:
(i) has an agreement, arrangement or understanding (the credit agreement ) with the consumer in relation to the provision of the credit; or
(ii) is engaged in a course of dealing (the credit dealing ) with the consumer in relation to the provision of the credit; and
(c) the amounts owing to the creditor from time to time under the credit agreement or credit dealing are, or are to be, calculated on the basis that:
(i) all amounts owing; and
(ii) all payments made;
by the consumer under, or in respect of, the credit agreement or credit dealing are entered in one or more accounts kept for the purpose of that agreement or dealing;
the credit agreement or credit dealing is taken, for the purposes of this Schedule, to be a continuing credit contract .
(2) If subsection (1)(a)(iii) applies, the creditor is taken, for the purposes of this section, to have provided credit to the consumer in relation to any goods or services, or cash, supplied by another person to the consumer to the extent of any payments made, or to be made, by the creditor to that other person.
15 Contraventions of this Schedule
Conduct is not taken, for the purposes of this Schedule, to contravene a provision of this Schedule merely because of the application of:
(a) section 23(1); or
(b) a provision of Division 1 of Part 32 (other than section 66(2)); or
(c) a provision of Part 35.
16 Severability
(1) If the making of a contract after the commencement of this section contravenes this Schedule because the contract includes a particular provision, nothing in this Schedule affects the validity or enforceability of the contract otherwise than in relation to that provision, so far as that provision is severable.
(2) This section has effect subject to any order made under Division 4 of Part 52.
17 References to provisions in this Schedule
In this Schedule, a reference to a provision is a reference to a provision of this Schedule, unless the contrary intention appears.
Chapter 2—General protections
Part 21—Misleading or deceptive conduct
18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in Part 31 (which is about unfair practices) limits by implication subsection (1).
Note: For rules relating to representations as to the country of origin of goods, see Part 53.
19 Application of this Part to information providers
(1) This Part does not apply to a publication of matter by an information provider if:
(a) in any case—the information provider made the publication in the course of carrying on a business of providing information; or
(b) if the information provider is the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or the holder of a licence granted under the Broadcasting Services Act 1992—the publication was by way of a radio or television broadcast by the information provider.
(2) Subsection (1) does not apply to a publication of an advertisement.
(3) Subsection (1) does not apply to a publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, goods or services (the publicised goods or services ), if:
(a) the publicised goods or services were goods or services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised goods or services; or
(c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies goods or services of the same kind as the publicised goods or services.
(4) Subsection (1) does not apply to a publication of matter in connection with the sale or grant, or possible sale or grant, of, or the promotion by any means of the sale or grant of, interests in land (the publicised interests in land ), if:
(a) the publicised interests in land were interests of a kind sold or granted by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who sells or grants interests of the same kind as the publicised interests in land; or
(c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that sells or grants interests of the same kind as the publicised interests in land.
(5) An information provider is a person who carries on a business of providing information.
(6) Without limiting subsection (5), each of the following is an information provider :
(a) the holder of a licence granted under the Broadcasting Services Act 1992;
(b) a person who is the provider of a broadcasting service under a class licence under that Act;
(c) the holder of a licence continued in force by section 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992;
(d) the Australian Broadcasting Corporation;
(e) the Special Broadcasting Service Corporation.
Part 22—Unconscionable conduct
20 Unconscionable conduct within the meaning of the unwritten law
(1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) This section does not apply to conduct that is prohibited by section 21 or 22.
21 Unconscionable conduct
(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to another person, engage in conduct that is, in all the circumstances, unconscionable.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (the consumer ), the court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the consumer; and
(b) whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
(c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
(e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the supplier.
(3) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of goods or services to a person by reason only that the person institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration.
(4) For the purpose of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person:
(a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.
(5) A reference in this section to goods or services is a reference to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.
(6) A reference in this section to the supply or possible supply of goods does not include a reference to the supply or possible supply of goods for the purpose of resupply or for the purpose of using them up or transforming them in trade or commerce.
(7) Section 4 applies for the purposes of this section in the same way as it applies for the purposes of Division 1 of Part 31.
22 Unconscionable conduct in business transactions
(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to another person (other than a listed public company); or
(b) the acquisition or possible acquisition of goods or services from another person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (the business consumer ), the court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the business consumer; and
(b) whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
(c) whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business consumer or a person acting on behalf of the business consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
(e) the amount for which, and the circumstances under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier; and
(f) the extent to which the supplier’s conduct towards the business consumer was consistent with the supplier’s conduct in similar transactions between the supplier and other like business consumers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the business consumer acted on the reasonable belief that the supplier would comply with that code; and
(i) the extent to which the supplier unreasonably failed to disclose to the business consumer:
(i) any intended conduct of the supplier that might affect the interests of the business consumer; and
(ii) any risks to the business consumer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the business consumer); and
(j) if there is a contract between the supplier and the business consumer for the supply of the goods or services:
(i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the business consumer; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the supplier and the business consumer in complying with the terms and conditions of the contract; and
(iv) any conduct that the supplier or the business consumer engaged in, in connection with their commercial relationship, after they entered into the contract; and
(k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the business consumer for the supply of the goods or services; and
(l) the extent to which the supplier and the business consumer acted in good faith.
(3) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the acquirer ) has contravened subsection (1) in connection with the acquisition or possible acquisition of goods or services from another person (the small business supplier ), the court may have regard to:
(a) the relative strengths of the bargaining positions of the acquirer and the small business supplier; and
(b) whether, as a result of conduct engaged in by the acquirer, the small business supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and
(c) whether the small business supplier was able to understand any documents relating to the acquisition or possible acquisition of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the small business supplier or a person acting on behalf of the small business supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the goods or services; and
(e) the amount for which, and the circumstances in which, the small business supplier could have supplied identical or equivalent goods or services to a person other than the acquirer; and
(f) the extent to which the acquirer’s conduct towards the small business supplier was consistent with the acquirer’s conduct in similar transactions between the acquirer and other like small business suppliers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the small business supplier acted on the reasonable belief that the acquirer would comply with that code; and
(i) the extent to which the acquirer unreasonably failed to disclose to the small business supplier:
(i) any intended conduct of the acquirer that might affect the interests of the small business supplier; and
(ii) any risks to the small business supplier arising from the acquirer’s intended conduct (being risks that the acquirer should have foreseen would not be apparent to the small business supplier); and
(j) if there is a contract between the acquirer and the small business supplier for the acquisition of the goods or services:
(i) the extent to which the acquirer was willing to negotiate the terms and conditions of the contract with the small business supplier; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the acquirer and the small business supplier in complying with the terms and conditions of the contract; and
(iv) any conduct that the acquirer or the small business supplier engaged in, in connection with their commercial relationship, after they entered into the contract; and
(k) without limiting paragraph (j), whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the small business supplier for the acquisition of the goods or services; and
(l) the extent to which the acquirer and the small business supplier acted in good faith.
(4) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with:
(a) the supply or possible supply of goods or services to another person; or
(b) the acquisition or possible acquisition of goods or services from another person;
by reason only that the firstmentioned person institutes legal proceedings in relation to that supply, possible supply, acquisition or possible acquisition or refers to arbitration a dispute or claim in relation to that supply, possible supply, acquisition or possible acquisition.
(5) For the purpose of determining whether a person has contravened subsection (1):
(a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b) the court may have regard to circumstances existing before the commencement of this section but not to conduct engaged in before that commencement.
(6) A reference in this section to the supply or possible supply of goods or services is a reference to the supply or possible supply of goods or services to a person whose acquisition or possible acquisition of the goods or services is or would be for the purpose of trade or commerce.
(7) A reference in this section to the acquisition or possible acquisition of goods or services is a reference to the acquisition or possible acquisition of goods or services by a person whose acquisition or possible acquisition of the goods or services is or would be for the purpose of trade or commerce.
(8) Section 4 applies for the purposes of this section in the same way as it applies for the purposes of Division 1 of Part 31.
Chapter 3—Specific protections
Part 32—Consumer transactions
Division 1—Consumer guarantees
Subdivision A—Guarantees relating to the supply of goods
51 Guarantee as to title
(1) If a person (the supplier ) supplies goods to a consumer, there is a guarantee that the supplier will have a right to dispose of the property in the goods when that property is to pass to the consumer.
(2) Subsection (1) does not apply to a supply (a supply of limited title ) if an intention that the supplier of the goods should transfer only such title as the supplier, or another person, may have:
(a) appears from the contract for the supply; or
(b) is to be inferred from the circumstances of that contract.
(3) This section does not apply if the supply is a supply by way of hire or lease.
52 Guarantee as to undisturbed possession
(1) If:
(a) a person (the supplier ) supplies goods to a consumer; and
(b) the supply is not a supply of limited title;
there is a guarantee that the consumer has the right to undisturbed possession of the goods.
(2) Subsection (1) does not apply to the extent that the consumer’s undisturbed possession of the goods may be lawfully disturbed by a person who is entitled to the benefit of any security, charge or encumbrance disclosed to the consumer before the consumer agreed to the supply.
(3) If:
(a) a person (the supplier ) supplies goods to a consumer; and
(b) the supply is a supply of limited title;
there is a guarantee that the following persons will not disturb the consumer’s possession of the goods:
(c) the supplier;
(d) if the parties to the contract for the supply intend that the supplier should transfer only such title as another person may have—that other person;
(e) anyone claiming through or under the supplier or that other person (otherwise than under a security, charge or encumbrance disclosed to the consumer before the consumer agreed to the supply).
(4) This section applies to a supply by way of hire or lease only for the period of the hire or lease.
53 Guarantee as to undisclosed securities etc.
(1) If:
(a) a person (the supplier ) supplies goods to a consumer; and
(b) the supply is not a supply of limited title;
there is a guarantee that:
(c) the goods are free from any security, charge or encumbrance:
(i) that was not disclosed to the consumer, in writing, before the consumer agreed to the supply; or
(ii) that was not created by or with the express consent of the consumer; and
(d) the goods will remain free from such a security, charge or encumbrance until the time when the property in the goods passes to the consumer.
(2) A supplier does not fail to comply with the guarantee only because of the existence of a floating charge over the supplier’s assets unless and until the charge becomes fixed and enforceable by the person to whom the charge is given.
Note: Section 339 of the Personal Property Securities Act 2009 affects the meaning of the references in this subsection to a floating charge and a fixed charge.
(3) If:
(a) a person (the supplier ) supplies goods to a consumer; and
(b) the supply is a supply of limited title;
there is a guarantee that all securities, charges or encumbrances known to the supplier, and not known to the consumer, were disclosed to the consumer before the consumer agreed to the supply.
(4) This section does not apply if the supply is a supply by way of hire or lease.
54 Guarantee as to acceptable quality
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are of acceptable quality.
(2) Goods are of acceptable quality if they are as:
(a) fit for all the purposes for which goods of that kind are commonly supplied; and
(b) acceptable in appearance and finish; and
(c) free from defects; and
(d) safe; and
(e) durable;
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).
(3) The matters for the purposes of subsection (2) are:
(a) the nature of the goods; and
(b) the price of the goods (if relevant); and
(c) any statements made about the goods on any packaging or label on the goods; and
(d) any representation made about the goods by the supplier or manufacturer of the goods; and
(e) any other relevant circumstances relating to the supply of the goods.
(4) If:
(a) goods supplied to a consumer are not of acceptable quality; and
(b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply;
the goods are taken to be of acceptable quality.
(5) If:
(a) goods are displayed for sale or hire; and
(b) the goods would not be of acceptable quality if they were supplied to a consumer;
the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.
(6) Goods do not fail to be of acceptable quality if:
(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b) they are damaged by abnormal use.
(7) Goods do not fail to be of acceptable quality if:
(a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and
(b) the examination ought reasonably to have revealed that the goods were not of acceptable quality.
55 Guarantee as to fitness for any disclosed purpose etc.
(1) If:
(a) a person (the supplier ) supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.
(2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:
(a) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or
(b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).
(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.
56 Guarantee relating to the supply of goods by description
(1) If:
(a) a person supplies, in trade or commerce, goods by description to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods correspond with the description.
(2) A supply of goods is not prevented from being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer.
(3) If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply.
57 Guarantees relating to the supply of goods by sample or demonstration model
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer by reference to a sample or demonstration model; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that:
(c) the goods correspond with the sample or demonstration model in quality, state or condition; and
(d) if the goods are supplied by reference to a sample—the consumer will have a reasonable opportunity to compare the goods with the sample; and
(e) the goods are free from any defect that:
(i) would not be apparent on reasonable examination of the sample or demonstration model; and
(ii) would cause the goods not to be of acceptable quality.
(2) If goods are supplied by reference to a sample or demonstration model as well as by description, the guarantees in section 56 and in this section both apply.
58 Guarantee as to repairs and spare parts
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the manufacturer of the goods will take reasonable action to ensure that facilities for the repair of the goods, and parts for the goods, are reasonably available for a reasonable period after the goods are supplied.
(2) This section does not apply if the manufacturer took reasonable action to ensure that the consumer would be given written notice, at or before the time when the consumer agrees to the supply of the goods, that:
(a) facilities for the repair of the goods would not be available or would not be available after a specified period; or
(b) parts for the goods would not be available or would not be available after a specified period.
59 Guarantee as to express warranties
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the manufacturer of the goods will comply with any express warranty given or made by the manufacturer in relation to the goods.
(2) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the supplier will comply with any express warranty given or made by the supplier in relation to the goods.
Subdivision B—Guarantees relating to the supply of services
60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
61 Guarantees as to fitness for a particular purpose etc.
(1) If:
(a) a person (the supplier ) supplies, in trade or commerce, services to a consumer; and
(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.
(2) If:
(a) a person (the supplier ) supplies, in trade or commerce, services to a consumer; and
(b) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;
the result that the consumer wishes the services to achieve;
there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.
(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.
(4) This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.
62 Guarantee as to reasonable time for supply
If:
(a) a person (the supplier ) supplies, in trade or commerce, services to a consumer; and
(b) the time within which the services are to be supplied:
(i) is not fixed by the contract for the supply of the services; or
(ii) is not to be determined in a manner agreed to by the consumer and supplier;
there is a guarantee that the services will be supplied within a reasonable time.
63 Services to which this Subdivision does not apply
This Subdivision does not apply to services that are, or are to be, supplied under:
(a) a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored; or
(b) a contract of insurance.
Subdivision C—Guarantees not to be excluded etc. by contract
64 Guarantees not to be excluded etc. by contract
(1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying:
(a) the application of all or any of the provisions of this Division; or
(b) the exercise of a right conferred by such a provision; or
(c) any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services.
(2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision.
64A Limitation of liability for failures to comply with guarantees
(1) A term of a contract for the supply by a person of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 64 merely because the term limits the person’s liability for failure to comply with a guarantee (other than a guarantee under section 51, 52 or 53) to one or more of the following:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(d) the payment of the cost of having the goods repaired.
(2) A term of a contract for the supply by a person of services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 64 merely because the term limits the person’s liability for failure to comply with a guarantee to:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
(3) This section does not apply in relation to a term of a contract if the person to whom the goods or services were supplied establishes that it is not fair or reasonable for the person who supplied the goods or services to rely on that term of the contract.
(4) In determining for the purposes of subsection (3) whether or not reliance on a term of a contract is fair or reasonable, a court is to have regard to all the circumstances of the case, and in particular to the following matters:
(a) the strength of the bargaining positions of the person who supplied the goods or services and the person to whom the goods or services were supplied (the buyer ) relative to each other, taking into account, among other things, the availability of equivalent goods or services and suitable alternative sources of supply;
(b) whether the buyer received an inducement to agree to the term or, in agreeing to the term, had an opportunity of acquiring the goods or services or equivalent goods or services from any source of supply under a contract that did not include that term;
(c) whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);
(d) in the case of the supply of goods, whether the goods were manufactured, processed or adapted to the special order of the buyer.
Subdivision D—Miscellaneous
65 Application of this Division to supplies of gas, electricity and telecommunications
(1) This Division does not apply to a supply if the supply:
(a) is a supply of a kind specified in the regulations; and
(b) is a supply of gas, electricity or a telecommunications service.
(2) A telecommunications service is a service for carrying communications by means of guided or unguided electromagnetic energy or both.
66 Display notices
(1) The Commonwealth Minister may determine, in writing, that persons (the suppliers ) who make supplies, or supplies of a specified kind, to which guarantees apply under this Division are required to display, in accordance with the determination, a notice that meets the requirements of the determination.
(2) A supplier who makes a supply to a consumer to which a guarantee applies under this Division, and to which such a determination relates, must ensure that a notice that meets those requirements is, in accordance with the determination:
(a) if the consumer takes delivery of the goods or services at the supplier’s premises—displayed at those premises; or
(b) otherwise—drawn to the consumer’s attention before the consumer agrees to the supply of the goods.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(3) Without limiting subsection (1), a determination under that subsection may do all or any of the following:
(a) require the notice to include specified information about the application of all or any of the provisions of this Division and Part 54;
(b) specify where the notice must be displayed;
(c) specify how the notice must be drawn to the attention of consumers;
(d) specify requirements as to the form of the notice.
67 Conflict of laws
If:
(a) the proper law of a contract for the supply of goods or services to a consumer would be the law of any part of Australia but for a term of the contract that provides otherwise; or
(b) a contract for the supply of goods or services to a consumer contains a term that purports to substitute, or has the effect of substituting, the following provisions for all or any of the provisions of this Division:
(i) the provisions of the law of a country other than Australia;
(ii) the provisions of the law of a State or a Territory;
the provisions of this Division apply in relation to the supply under the contract despite that term.
68 Convention on Contracts for the International Sale of Goods
The provisions of the United Nations Convention on Contracts for the International Sale of Goods, done at Vienna on 11 April 1980, as amended and in force for Australia from time to time, prevail over the provisions of this Division to the extent of any inconsistency.
Note: The text of the Convention is set out in Australian Treaty Series 1988 No. 32 ([1988] ATS 32). In 2010, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Part 35—Liability of manufacturers for goods with safety defects
Division 1—Actions against manufacturers for goods with safety defects
138 Liability for loss or damage suffered by an injured individual
(1) A manufacturer of goods is liable to compensate an individual if:
(a) the manufacturer supplies the goods in trade or commerce; and
(b) the goods have a safety defect; and
(c) the individual suffers injuries because of the safety defect.
(2) The individual may recover, by action against the manufacturer, the amount of the loss or damage suffered by the individual.
(3) If the individual dies because of the injuries, a law of a State or a Territory about liability in respect of the death of individuals applies as if:
(a) the action were an action under the law of the State or Territory for damages in respect of the injuries; and
(b) the safety defect were the manufacturer’s wrongful act, neglect or default.
139 Liability for loss or damage suffered by a person other than an injured individual
(1) A manufacturer of goods is liable to compensate a person if:
(a) the manufacturer supplies the goods in trade or commerce; and
(b) the goods have a safety defect; and
(c) an individual (other than the person) suffers injuries because of the safety defect; and
(d) the person suffers loss or damage because of:
(i) the injuries; or
(ii) if the individual dies because of the injuries—the individual’s death; and
(e) the loss or damage does not come about because of a business or professional relationship between the person and the individual.
(2) The person may recover, by action against the manufacturer, the amount of the loss or damage suffered by the person.
140 Liability for loss or damage suffered by a person if other goods are destroyed or damaged
(1) A manufacturer of goods is liable to compensate a person if:
(a) the manufacturer supplies the goods in trade or commerce; and
(b) the goods have a safety defect; and
(c) other goods of a kind ordinarily acquired for personal, domestic or household use or consumption are destroyed or damaged because of the safety defect; and
(d) the person used or consumed, or intended to use or consume, the destroyed or damaged goods for personal, domestic or household use or consumption; and
(e) the person suffers loss or damage as a result of the destruction or damage.
(2) The person may recover, by action against the manufacturer, the amount of the loss or damage suffered by the person.
141 Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged
(1) A manufacturer of goods is liable to compensate a person if:
(a) the manufacturer supplies the goods in trade or commerce; and
(b) the goods have a safety defect; and
(c) land, buildings or fixtures are destroyed or damaged because of the safety defect; and
(d) the land, buildings or fixtures are ordinarily acquired for private use; and
(e) the person used, or intended to use, the land, buildings or fixtures for private use; and
(f) the person suffers loss or damage as a result of the destruction or damage.
(2) The person may recover, by action against the manufacturer, the amount of the loss or damage suffered by the person.
142 Defences to defective goods actions
In a defective goods action, it is a defence if it is established that:
(a) the safety defect in the goods that is alleged to have caused the loss or damage did not exist:
(i) in the case of electricity—at the time at which the electricity was generated, being a time before it was transmitted or distributed; or
(ii) in any other case—at the time when the goods were supplied by their actual manufacturer; or
(b) the goods had that safety defect only because there was compliance with a mandatory standard for them; or
(c) the state of scientific or technical knowledge at the time when the goods were supplied by their manufacturer was not such as to enable that safety defect to be discovered; or
(d) if the goods that had that safety defect were comprised in other goods—that safety defect is attributable only to:
(i) the design of the other goods; or
(ii) the markings on or accompanying the other goods; or
(iii) the instructions or warnings given by the manufacturer of the other goods.
Division 2—Defective goods actions
143 Time for commencing defective goods actions
(1) Subject to subsection (2), a person may commence a defective goods action at any time within 3 years after the time the person became aware, or ought reasonably to have become aware, of all of the following:
(a) the alleged loss or damage;
(b) the safety defect of the goods;
(c) the identity of the person who manufactured the goods.
(2) A defective goods action must be commenced within 10 years of the supply by the manufacturer of the goods to which the action relates.
144 Liability joint and several
If 2 or more persons are liable under Division 1 for the same loss or damage, they are jointly and severally liable.
145 Survival of actions
A law of a State or a Territory about the survival of causes of action vested in persons who die applies to actions under Division 1.
146 No defective goods action where workers’ compensation law etc. applies
Division 1 does not apply to a loss or damage in respect of which an amount has been, or could be, recovered under a law of the Commonwealth, a State or a Territory that:
(a) relates to workers’ compensation; or
(b) gives effect to an international agreement.
147 Unidentified manufacturer
(1) A person who:
(a) wishes to institute a defective goods action; but
(b) does not know who is the manufacturer of the goods to which the action would relate;
may, by written notice given to a supplier, or each supplier, of the goods who is known to the person, request the supplier or suppliers to give the person particulars identifying the manufacturer of the goods, or the supplier of the goods to the supplier requested.
(2) If, 30 days after the person made the request or requests, the person still does not know who is the manufacturer of the goods, then each supplier:
(a) to whom the request was made; and
(b) who did not comply with the request;
is taken, for the purposes of the defective goods liability action (but not for the purposes of section 142(c)), to be the manufacturer of the goods.
148 Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard
(1) If a person (however described) against whom a defective goods action is brought raises the defence that the goods had the alleged safety defect only because there was compliance with a Commonwealth mandatory standard for the goods, the person must, as soon as practicable after raising that defence, give the Commonwealth:
(a) a prescribed notice of the action and of that defence; and
(b) a copy of the person’s defence in the action.
(2) The giving of the notice and defence makes the Commonwealth a defendant in the action.
(3) If, in the action, the court finds that the person (the plaintiff ) by whom the action is brought would, but for the defence referred to in subsection (1), have succeeded against the person (other than the Commonwealth) against which the action is brought, then:
(a) the Commonwealth, and not the person (other than the Commonwealth) against which the action is brought, is liable to pay the plaintiff for the amount of the loss or damage caused by the safety defect; and
(b) the court is to enter judgment against the Commonwealth for that amount; and
(c) the court may make such orders for costs as the court considers just.
149 Representative actions by the regulator
(1) The regulator may, by application, commence a defective goods action on behalf of one or more persons identified in the application who have suffered the loss or damage in relation to which the action is commenced.
(2) The regulator may only make the application if it has obtained the written consent of the person, or each of the persons, on whose behalf the application is being made.
Division 3—Miscellaneous
150 Application of all or any provisions of this Part etc. not to be excluded or modified
(1) Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term) that purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying, any of the following is void:
(a) the application of all or any of the provisions of this Part;
(b) the exercise of a right conferred by any of those provisions;
(c) any liability under any of those provisions.
(2) A term of a contract is not taken to exclude, restrict or modify the application of a provision of this Part unless the term does so expressly or is inconsistent with that provision.
Part 54—Remedies relating to guarantees
Division 1—Action against suppliers
Subdivision A—Action against suppliers of goods
259 Action against suppliers of goods
(1) A consumer may take action under this section if:
(a) a person (the supplier ) supplies, in trade or commerce, goods to the consumer; and
(b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 32 (other than sections 58 and 59(1)) is not complied with.
(2) If the failure to comply with the guarantee can be remedied and is not a major failure:
(a) the consumer may require the supplier to remedy the failure within a reasonable time; or
(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time—the consumer may:
(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or
(ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.
(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:
(a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or
(b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.
(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.
(5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier.
(6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).
(7) The consumer may take action under this section whether or not the goods are in their original packaging.
260 When a failure to comply with a guarantee is a major failure
A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:
(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
(b) the goods depart in one or more significant respects:
(i) if they were supplied by description—from that description; or
(ii) if they were supplied by reference to a sample or demonstration model—from that sample or demonstration model; or
(c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(d) the goods are unfit for a disclosed purpose that was made known to:
(i) the supplier of the goods; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;
and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(e) the goods are not of acceptable quality because they are unsafe.
261 How suppliers may remedy a failure to comply with a guarantee
If, under section 259(2)(a), a consumer requires a supplier of goods to remedy a failure to comply with a guarantee referred to in section 259(1)(b), the supplier may comply with the requirement:
(a) if the failure relates to title—by curing any defect in title; or
(b) if the failure does not relate to title—by repairing the goods; or
(c) by replacing the goods with goods of an identical type; or
(d) by refunding:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods.
262 When consumers are not entitled to reject goods
(1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if:
(a) the rejection period for the goods has ended; or
(b) the goods have been lost, destroyed or disposed of by the consumer; or
(c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or
(d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them.
(2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:
(a) the type of goods; and
(b) the use to which a consumer is likely to put them; and
(c) the length of time for which it is reasonable for them to be used; and
(d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
263 Consequences of rejecting goods
(1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods.
(2) The consumer must return the goods to the supplier unless:
(a) the goods have already been returned to, or retrieved by, the supplier; or
(b) the goods cannot be returned, removed or transported without significant cost to the consumer because of:
(i) the nature of the failure to comply with the guarantee to which the rejection relates; or
(ii) the size or height, or method of attachment, of the goods.
(3) If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier’s expense.
(4) The supplier must, in accordance with an election made by the consumer:
(a) refund:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or
(b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier.
(5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier.
(6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.
264 Replaced goods
If the goods are replaced under section 261(c) or 263(4)(b):
(a) the replacement goods are taken, for the purposes of Division 1 of Part 32 and this Part, to be supplied by the supplier; and
(b) the provisions of Division 1 of Part 32 and this Part apply in relation to the replacement goods.
265 Termination of contracts for the supply of services that are connected with rejected goods
(1) If:
(a) under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods; and
(b) the supplier is required under section 263(4)(a) to give the consumer a refund; and
(c) a person supplies, in trade or commerce, services to the consumer that are connected with the rejected goods;
the consumer may terminate the contract for the supply of the services.
(2) The termination takes effect:
(a) at the time the termination is made known to the supplier of the services (whether by words or by conduct indicating the consumer’s intention to terminate the contract); or
(b) if it is not reasonably practicable to communicate with the supplier of the services—at the time the consumer indicates, by means which are reasonable in the circumstances, his or her intention to terminate the contract.
(3) The consumer is entitled to recover, by action against the supplier of the services, a refund of:
(a) any money paid by the consumer for the services; and
(b) an amount that is equal to the value of any other consideration provided by the consumer for the services;
to the extent that the consumer has not already consumed the services at the time the termination takes effect.
266 Rights of gift recipients
If a consumer acquires goods from a supplier and gives them to another person as a gift, the other person may, subject to any defence which would be available to the supplier against the consumer:
(a) exercise any rights or remedies under this Subdivision which would be available to the other person if he or she had acquired the goods from the supplier; and
(b) any reference in this Subdivision to a consumer includes a reference to the other person accordingly.
Subdivision B—Action against suppliers of services
267 Action against suppliers of services
(1) A consumer may take action under this section if:
(a) a person (the supplier ) supplies, in trade or commerce, services to the consumer; and
(b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 32 is not complied with; and
(c) unless the guarantee is the guarantee under section 60—the failure to comply with the guarantee did not occur only because of:
(i) an act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier; or
(ii) a cause independent of human control that occurred after the services were supplied.
(2) If the failure to comply with the guarantee can be remedied and is not a major failure:
(a) the consumer may require the supplier to remedy the failure within a reasonable time; or
(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time—the consumer may:
(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or
(ii) terminate the contract for the supply of the services.
(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:
(a) terminate the contract for the supply of the services; or
(b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services.
(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.
(5) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).
268 When a failure to comply with a guarantee is a major failure
A failure to comply with a guarantee referred to in section 267(1)(b) that applies to a supply of services is a major failure if:
(a) the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
(b) the services are substantially unfit for a purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(c) both of the following apply:
(i) the services, and any product resulting from the services, are unfit for a particular purpose for which the services were acquired by the consumer that was made known to the supplier of the services;
(ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(d) both of the following apply:
(i) the services, and any product resulting from the services, are not of such a nature, or quality, state or condition, that they might reasonably be expected to achieve a result desired by the consumer that was made known to the supplier;
(ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to achieve such a result; or
(e) the supply of the services creates an unsafe situation.
269 Termination of contracts for the supply of services
(1) This section applies if, under section 267, a consumer terminates a contract for the supply of services.
(2) The termination takes effect:
(a) at the time the termination is made known to the supplier of the services (whether by words or by conduct indicating the consumer’s intention to terminate the contract); or
(b) if it is not reasonably practicable to communicate with the supplier of the services—at the time the consumer indicates, by means which are reasonable in the circumstances, his or her intention to terminate the contract.
(3) The consumer is entitled to recover, by action against the supplier of the services, a refund of:
(a) any money paid by the consumer for the services; and
(b) an amount that is equal to the value of any other consideration provided by the consumer for the services;
to the extent that the consumer has not already consumed the services at the time the termination takes effect.
270 Termination of contracts for the supply of goods that are connected with terminated services
(1) If:
(a) under section 267, a consumer terminates a contract for the supply of services; and
(b) a person (the supplier ) has supplied, in trade or commerce, goods to the consumer that are connected with the services;
then:
(c) the consumer is taken to have rejected the goods at the time the termination of the contract takes effect; and
(d) the consumer must return the goods to the supplier of the goods unless:
(i) the goods have already been returned to, or retrieved by, the supplier; or
(ii) the goods cannot be returned, removed or transported without significant cost to the consumer because of the nature of the failure to comply with the guarantee to which the rejection relates, or because of the size or height, or method of attachment, of the goods; and
(e) the supplier must refund:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods.
(2) If subsection (1)(d)(ii) applies, the supplier must collect the goods at the supplier’s expense.
Division 2—Action for damages against manufacturers of goods
271 Action for damages against manufacturers of goods
(1) If:
(a) the guarantee under section 54 applies to a supply of goods to a consumer; and
(b) the guarantee is not complied with;
an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.
(2) Subsection (1) does not apply if the guarantee under section 54 is not complied with only because of:
(a) an act, default or omission of, or any representation made by, any person other than the manufacturer or an employee or agent of the manufacturer; or
(b) a cause independent of human control that occurred after the goods left the control of the manufacturer; or
(c) the fact that the price charged by the supplier was higher than the manufacturer’s recommended retail price, or the average retail price, for the goods.
(3) If:
(a) a person supplies, in trade or commerce, goods by description to a consumer; and
(b) the description was applied to the goods by or on behalf of the manufacturer of the goods, or with express or implied consent of the manufacturer; and
(c) the guarantee under section 56 applies to the supply and it is not complied with;
an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.
(4) Subsection (3) does not apply if the guarantee under section 56 is not complied with only because of:
(a) an act, default or omission of any person other than the manufacturer or an employee or agent of the manufacturer; or
(b) a cause independent of human control that occurred after the goods left the control of the manufacturer.
(5) If:
(a) the guarantee under section 58 or 59(1) applies to a supply of goods to a consumer; and
(b) the guarantee is not complied with;
an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.
(6) If an affected person in relation to goods has, in accordance with an express warranty given or made by the manufacturer of the goods, required the manufacturer to remedy a failure to comply with a guarantee referred to in subsection (1), (3) or (5):
(a) by repairing the goods; or
(b) by replacing the goods with goods of an identical type;
then, despite that subsection, the affected person is not entitled to commence an action under that subsection to recover damages of a kind referred to in section 272(1)(a) unless the manufacturer has refused or failed to remedy the failure, or has failed to remedy the failure within a reasonable time.
(7) The affected person in relation to the goods may commence an action under this section whether or not the goods are in their original packaging.
272 Damages that may be recovered by action against manufacturers of goods
(1) In an action for damages under this Division, an affected person in relation to goods is entitled to recover damages for:
(a) any reduction in the value of the goods, resulting from the failure to comply with the guarantee to which the action relates, below whichever of the following prices is lower:
(i) the price paid or payable by the consumer for the goods;
(ii) the average retail price of the goods at the time of supply; and
(b) any loss or damage suffered by the affected person because of the failure to comply with the guarantee to which the action relates if it was reasonably foreseeable that the affected person would suffer such loss or damage as a result of such a failure.
(2) Without limiting subsection (1)(b), the cost of inspecting and returning the goods to the manufacturer is taken to be a reasonably foreseeable loss suffered by the affected person as a result of the failure to comply with the guarantee.
(3) Subsection (1)(b) does not apply to loss or damage suffered through a reduction in the value of the goods.
273 Time limit for actions against manufacturers of goods
An affected person may commence an action for damages under this Division at any time within 3 years after the day on which the affected person first became aware, or ought reasonably to have become aware, that the guarantee to which the action relates has not been complied with.
Division 3—Miscellaneous
274 Indemnification of suppliers by manufacturers
(1) A manufacturer of goods is liable to indemnify a person (the supplier ) who supplies the goods to a consumer if:
(a) the supplier is liable to pay damages under section 259(4) to the consumer for loss or damage suffered by the consumer; and
(b) the manufacturer is or would be liable under section 271 to pay damages to the consumer for the same loss or damage.
(2) Without limiting subsection (1), a manufacturer of goods is liable to indemnify a person (the supplier ) who supplies the goods to a consumer if:
(a) the supplier incurs costs because the supplier is liable under this Part for a failure to comply with a guarantee that applies to the supply under Subdivision A of Division 1 of Part 32; and
(b) the failure is:
(i) a failure to comply with the guarantee under section 54; or
(ii) a failure to comply with the guarantee under section 55 in relation to a disclosed purpose that the consumer made known to the manufacturer either directly or through the supplier or the person referred to in section 55(2)(a)(ii); or
(iii) a failure to comply with the guarantee under section 56 in relation to a description that was applied to the goods by or on behalf of the manufacturer of the goods, or with the express or implied consent of the manufacturer.
(3) The supplier may, with respect to the manufacturer’s liability to indemnify the supplier, commence an action against the manufacturer in a court of competent jurisdiction for such legal or equitable relief as the supplier could have obtained if that liability had arisen under a contract of indemnity made between them.
(4) The supplier may commence the action at any time within 3 years after the earliest of the following days:
(a) the day, or the first day, as the case may be, on which the supplier made a payment with respect to, or otherwise discharged in whole or in part, the liability of the supplier to the consumer;
(b) the day on which a proceeding was commenced by the consumer against the supplier with respect to that liability or, if more than one such proceeding was commenced, the day on which the first such proceeding was commenced.
275 Limitation of liability etc.
If:
(a) there is a failure to comply with a guarantee that applies to a supply of services under Subdivision B of Division 1 of Part 32; and
(b) the law of a State or a Territory is the proper law of the contract;
that law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services.
276 This Part not to be excluded etc. by contract
(1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying:
(a) the application of all or any of the provisions of this Part; or
(b) the exercise of a right a conferred by such a provision; or
(c) any liability of a person in relation to a failure to comply with a guarantee that applies under Division 1 of Part 32 to a supply of goods or services.
(2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Part unless the term does so expressly or is inconsistent with the provision.
(3) This section does not apply to a term of a contract that is a term referred to in section 276A(4).
276A Limitation in certain circumstances of liability of manufacturer to seller
(1) Despite section 274, if goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability under that section of the manufacturer of the goods to a person (the supplier ) who supplied the goods to a consumer is limited to a liability to pay to the supplier an amount equal to:
(a) the cost of replacing the goods; or
(b) the cost of obtaining equivalent goods; or
(c) the cost of having the goods repaired;
whichever is the lowest amount.
(2) Subsection (1) does not apply in relation to particular goods if the supplier establishes that it is not fair or reasonable for the liability of the manufacturer of the goods to be limited as mentioned in subsection (1).
(3) In determining for the purposes of subsection (2) whether or not it is fair or reasonable for the liability of a manufacturer to a supplier in relation to goods to be limited as mentioned in subsection (1), a court is to have regard to all the circumstances of the case, and in particular to the following matters:
(a) the availability of suitable alternative sources of supply of the goods;
(b) the availability of equivalent goods;
(c) whether the goods were manufactured, processed or adapted to the special order of the supplier.
(4) This section is subject to any term of a contract between the manufacturer and the supplier imposing on the manufacturer a greater liability than the liability mentioned in subsection (1).
277 Representative actions by the regulator
(1) The regulator may, by application, commence an action under this Part on behalf of one or more persons identified in the application who are entitled under this Part to take the action.
(2) The regulator may only make the application if it has obtained the written consent of the person, or each of the persons, on whose behalf the application is being made.
Note: See Part XI.
Chapter 1—Introduction
1 Application of this Schedule
2 Definitions
3 Meaning of consumer
4 Misleading representations with respect to future matters
5 When donations are treated as supplies or acquisitions
6 Related bodies corporate
7 Meaning of manufacturer
8 Goods affixed to land or premises
9 Meaning of safety defect in relation to goods
10 Asserting a right to payment
11 References to acquisition, supply and resupply
12 Application of Schedule in relation to leases and licences of land and buildings
13 Loss or damage to include injury
14 Meaning of continuing credit contract
15 Contraventions of this Schedule
16 Severability
17 References to provisions in this Schedule
Chapter 2—General protections
Part 21—Misleading or deceptive conduct
18 Misleading or deceptive conduct
19 Application of this Part to information providers
Part 22—Unconscionable conduct
20 Unconscionable conduct within the meaning of the unwritten law
21 Unconscionable conduct
22 Unconscionable conduct in business transactio
Chapter 3—Specific protections
Part 32—Consumer transactions
Division 1—Consumer guarantees
Subdivision A—Guarantees relating to the supply of goods
51 Guarantee as to title
52 Guarantee as to undisturbed possession
53 Guarantee as to undisclosed securities etc.
54 Guarantee as to acceptable quality
55 Guarantee as to fitness for any disclosed purpose etc.
56 Guarantee relating to the supply of goods by description
57 Guarantees relating to the supply of goods by sample or demonstration model
58 Guarantee as to repairs and spare parts
59 Guarantee as to express warranties
Subdivision B—Guarantees relating to the supply of services
60 Guarantee as to due care and skill
61 Guarantees as to fitness for a particular purpose etc.
62 Guarantee as to reasonable time for supply
63 Services to which this Subdivision does not apply
Subdivision C—Guarantees not to be excluded etc. by contract
64 Guarantees not to be excluded etc. by contract
64A Limitation of liability for failures to comply with guarantees
Subdivision D—Miscellaneous
65 Application of this Division to supplies of gas, electricity and telecommunications
66 Display notices
67 Conflict of laws
68 Convention on Contracts for the International Sale of Goods
Part 35—Liability of manufacturers for goods with safety defects
Division 1—Actions against manufacturers for goods with safety defects
138 Liability for loss or damage suffered by an injured individual
139 Liability for loss or damage suffered by a person other than an injured individual
140 Liability for loss or damage suffered by a person if other goods are destroyed or damaged
141 Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged
142 Defences to defective goods actions
Division 2—Defective goods actions
143 Time for commencing defective goods actions
144 Liability joint and several
145 Survival of actions
146 No defective goods action where workers’ compensation law etc. applies
147 Unidentified manufacturer
148 Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard
149 Representative actions by the regulator
Division 3—Miscellaneous
150 Application of all or any provisions of this Part etc. not to be excluded or modified
Part 54—Remedies relating to guarantees
Division 1—Action against suppliers
Subdivision A—Action against suppliers of goods
259 Action against suppliers of goods
260 When a failure to comply with a guarantee is a major failure
261 How suppliers may remedy a failure to comply with a guarantee
262 When consumers are not entitled to reject goods
263 Consequences of rejecting goods
264 Replaced goods
265 Termination of contracts for the supply of services that are connected with rejected goods
266 Rights of gift recipients
Subdivision B—Action against suppliers of services
267 Action against suppliers of services
268 When a failure to comply with a guarantee is a major failure
269 Termination of contracts for the supply of services
270 Termination of contracts for the supply of goods that are connected with terminated services
Division 2—Action for damages against manufacturers of goods
271 Action for damages against manufacturers of goods
272 Damages that may be recovered by action against manufacturers of goods
273 Time limit for actions against manufacturers of goods
Division 3—Miscellaneous
274 Indemnification of suppliers by manufacturers
275 Limitation of liability etc.
276 This Part not to be excluded etc. by contract
276A Limitation in certain circumstances of liability of manufacturer to seller
277 Representative actions by the regulator
Chapter 1—Introduction
1 Application of this Schedule
This Schedule applies to the extent provided by:
(a) Part XI of the Competition and Consumer Act; or
(b) an application law.
2 Definitions
(1) In this Schedule:
ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
acceptable quality : see sections 54(2) to (7).
ACN has the meaning given by section 9 of the Corporations Act 2001.
acquire includes:
(a) in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hirepurchase; and
(b) in relation to services—accept.
Note: Section 5 deals with when receipt of a donation is an acquisition.
adverse publicity order : see section 247(2).
affected person , in relation to goods, means:
(a) a consumer who acquires the goods; or
(b) a person who acquires the goods from the consumer (other than for the purpose of resupply); or
(c) a person who derives title to the goods through or under the consumer.
agreement document : see section 78(2).
applicable industry code has the meaning given by section 51ACA(1) of the Competition and Consumer Act.
application law has the same meaning as in section 140 of the Competition and Consumer Act.
article includes a token, card or document.
ASIC means the Australian Securities and Investments Commission.
assert a right to payment : see section 10(1).
associate regulator :
(a) for the purposes of the application of this Schedule as a law of the Commonwealth—means a body that is, for the purposes of the application of this Schedule as a law of a State or a Territory, the regulator within the meaning of the application law of the State or Territory; or
(b) for the purposes of the application of this Schedule as a law of a State or a Territory—means:
(i) the Commission; or
(ii) a body that is, for the purposes of the application of this Schedule as a law of another State or a Territory, the regulator within the meaning of the application law of that other State or Territory.
authority , in relation to a State or a Territory (including an external Territory), means:
(a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or
(b) an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.
authority of the Commonwealth means:
(a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or
(b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.
banker has the same meaning as in section 4(1) of the Competition and Consumer Act.
ban period for an interim ban: see section 111(1).
business includes a business not carried on for profit.
business day , in relation to an unsolicited consumer agreement, means a day that is not:
(a) a Saturday or Sunday; or
(b) a public holiday in the place where the agreement was made.
business or professional relationship includes a relationship between employer and employee, or a similar relationship.
call on , in relation to negotiating an unsolicited consumer agreement, does not include call by telephone.
Commission has the same meaning as in section 4(1) of the Competition and Consumer Act.
Commonwealth mandatory standard , in relation to goods, means a mandatory standard in respect of the goods imposed by a law of the Commonwealth.
Commonwealth Minister means the Minister who administers Part XI of the Competition and Consumer Act.
Competition and Consumer Act means the Competition and Consumer Act 2010.
consumer : see section 3.
consumer contract : see section 23(3).
consumer goods means goods that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption, and includes any such goods that have become fixtures since the time they were supplied if:
(a) a recall notice for the goods has been issued; or
(b) a person has voluntarily taken action to recall the goods.
continuing credit contract : see section 14(1).
contravening conduct : see section 239(1)(a)(i).
court , in relation to a matter, means any court having jurisdiction in the matter.
covering includes a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper.
credit card : see section 39(5).
credit provider means a person providing, or proposing to provide, in the course of a business carried on by the person, credit to consumers in relation to the acquisition of goods or services.
dealer : see section 71.
debit card : see section 39(6).
declared term : see section 239(1)(a)(ii).
defective goods action means an action under section 138, 139, 140 or 141, and includes such an action because of section 138(3) or 145.
disclosed purpose : see section 55(2).
displayed price : see sections 47(2) to (5).
document includes:
(a) a book, plan, paper, parchment or other material on which there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and
(b) a disc, tape, paper or other device from which sounds or messages are capable of being reproduced.
enforcement proceeding means:
(a) a proceeding for an offence against Chapter 4; or
(b) a proceeding instituted under Chapter 5 (other than under sections 237 and 239).
evidential burden , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
express warranty , in relation to goods, means an undertaking, assertion or representation:
(a) that relates to:
(i) the quality, state, condition, performance or characteristics of the goods; or
(ii) the provision of services that are or may at any time be required for the goods; or
(iii) the supply of parts that are or may at any time be required for the goods; or
(iv) the future availability of identical goods, or of goods constituting or forming part of a set of which the goods, in relation to which the undertaking, assertion or representation is given or made, form part; and
(b) that is given or made in connection with the supply of the goods, or in connection with the promotion by any means of the supply or use of the goods; and
(c) the natural tendency of which is to induce persons to acquire the goods.
financial product has the meaning given by section 12BAA of the Australian Securities and Investments Commission Act 2001.
financial service has the meaning given by section 12BAB of the Australian Securities and Investments Commission Act 2001.
free item includes a free service.
goods includes:
(a) ships, aircraft and other vehicles; and
(b) animals, including fish; and
(c) minerals, trees and crops, whether on, under or attached to land or not; and
(d) gas and electricity; and
(e) computer software; and
(f) secondhand goods; and
(g) any component part of, or accessory to, goods.
grown : see section 255(7).
GST has the meaning given by section 1951 of the A New Tax System (Goods and Services Tax) Act 1999.
industry code has the meaning given by section 51ACA of the Competition and Consumer Act.
information provider : see sections 19(5) and (6).
information standard : see sections 134(1) and 135(1).
inner container includes any container into which goods are packed, other than a shipping or airline container, pallet or other similar article.
interest , in relation to land, means:
(a) a legal or equitable estate or interest in the land; or
(b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or
(c) a right, power or privilege over, or in connection with, the land.
interim ban : see sections 109(1) and (2).
involved : a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced, whether by threats or promises or otherwise, the contravention; or
(c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
joint liability proceedings means proceedings relating to the joint and several liability under section 278 of a linked credit provider and a supplier of goods or services.
label includes a band or ticket.
layby agreement : see section 96(3).
linked credit contract : see section 278(2).
linked credit provider , in relation to a supplier of goods or services, means a credit provider:
(a) with whom the supplier has a contract, arrangement or understanding relating to:
(i) the supply to the supplier of goods in which the supplier deals; or
(ii) the business carried on by the supplier of supplying goods or services; or
(iii) the provision to persons to whom goods or services are supplied by the supplier of credit in respect of payment for those goods or services; or
(b) to whom the supplier, by arrangement with the credit provider, regularly refers persons for the purpose of obtaining credit; or
(c) whose forms of contract, forms of application or offers for credit are, by arrangement with the credit provider, made available to persons by the supplier; or
(d) with whom the supplier has a contract, arrangement or understanding under which contracts, applications or offers for credit from the credit provider may be signed by persons at premises of the supplier.
listed public company has the meaning given by section 9951(1) the Income Tax Assessment Act 1997.
loan contract means a contract under which a person in the course of a business carried on by that person provides or agrees to provide, whether on one or more occasions, credit to a consumer in one or more of the following ways:
(a) by paying an amount to, or in accordance with the instructions of, the consumer;
(b) by applying an amount in satisfaction or reduction of an amount owed to the person by the consumer;
(c) by varying the terms of a contract under which money owed to the person by the consumer is payable;
(d) by deferring an obligation of the consumer to pay an amount to the person;
(e) by taking from the consumer a bill of exchange or other negotiable instrument on which the consumer (whether alone or with another person or other persons) is liable as drawer, acceptor or endorser.
major failure : see sections 260 and 268.
mandatory standard , in relation to goods, means a standard:
(a) for the goods or anything relating to the goods; and
(b) that, under a law of the Commonwealth, a State or a Territory, must be complied with when the goods are supplied by their manufacturer, being a law creating an offence or liability if there is such noncompliance;
but does not include a standard which may be complied with by meeting a higher standard.
manufacturer : see section 7.
market has the same meaning as in section 4E of the Competition and Consumer Act.
materials , in relation to goods, means:
(a) if the goods are unmanufactured raw products—those products; and
(b) if the goods are manufactured goods—all matter or substances used or consumed in the manufacture of the goods (other than matter or substances that are treated as overheads); and
(c) in either case—the inner containers in which the goods are packed.
mixed supply : see section 3(11).
National Credit Code has the meaning given by section 5(1) of the National Consumer Credit Protection Act 2009.
negotiated by telephone : see section 78(3).
negotiation : see section 72.
new participant : see section 45(2).
nonlinked credit contract : see section 287(5).
nonparty consumer means:
(a) in relation to conduct referred to in section 239(1)(a)(i)—a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct; and
(b) in relation to a term of a consumer contract referred to in section 239(1)(a)(ii)—a person who is not, or has not been, a party to an enforcement proceeding in relation to the term.
participant , in a pyramid scheme, means a person who participates in the scheme.
participate , in a pyramid scheme: see section 44(3).
participation payment : see section 45(1)(a).
permanent ban : see sections 114(1) and (2).
premises means:
(a) an area of land or any other place (whether or not it is enclosed or built on); or
(b) a building or other structure; or
(c) a vehicle, vessel or aircraft; or
(d) a part of any such premises.
price , of goods or services, means:
(a) the amount paid or payable (including any charge of any description) for their acquisition; or
(b) if such an amount is not specified because the acquisition is part only of a transaction for which a total amount is paid or payable:
(i) the lowest amount (including any charge of any description) for which the goods or services could reasonably have been acquired from the supplier at the time of the transaction or, if not from the supplier, from another supplier; or
(ii) if they could not reasonably have been acquired separately from another supplier—their value at the time of the transaction.
prior negotiations or arrangements , in relation to the acquisition of goods by a consumer, means negotiations or arrangements:
(a) that were conducted or made with the consumer by another person in the course of a business carried on by the other person; and
(b) that induced the consumer to acquire the goods, or otherwise promoted the acquisition of the goods by the consumer.
product related service means a service for or relating to:
(a) the installation of consumer goods of a particular kind; or
(b) the maintenance, repair or cleaning of consumer goods of a particular kind; or
(c) the assembly of consumer goods of a particular kind; or
(d) the delivery of consumer goods of a particular kind;
and, without limiting paragraphs (a) to (d), includes any other service that relates to the supply of consumer goods of that kind.
proof of transaction : see section 100(4).
publish , in relation to an advertisement, means include in a publication intended for sale or public distribution (whether to the public generally or to a restricted class or number of persons) or for public display (including in an electronic form).
pyramid scheme : see section 45(1).
recall notice : see section 122(1).
recovery period : see section 41(4).
recruitment payment : see section 45(1)(b).
regulations means regulations made under section 139G of the Competition and Consumer Act.
regulator :
(a) for the purposes of the application of this Schedule as a law of the Commonwealth—means the Commission; or
(b) for the purposes of the application of this Schedule as a law of a State or a Territory—has the meaning given by the application law of the State or Territory.
rejection period : see section 262(2).
related , in relation to a body corporate: see section 6.
related contract or instrument : see section 83(2).
rely on , in relation to a term of a consumer contract, includes the following:
(a) attempt to enforce the term;
(b) attempt to exercise a right conferred, or purportedly conferred, by the term;
(c) assert the existence of a right conferred, or purportedly conferred, by the term.
responsible Minister means:
(a) the Commonwealth Minister; or
(b) the Minister of a State who administers the application law of the State; or
(c) the Minister of a Territory who administers the application law of the Territory.
safety defect , in relation to goods: see section 9.
safety standard : see sections 104(1) and 105(1).
sale by auction , in relation to the supply of goods by a person, means a sale by auction that is conducted by an agent of the person (whether the agent acts in person or by electronic means).
send includes deliver, and sent and sender have corresponding meanings.
serious injury or illness means an acute physical injury or illness that requires medical or surgical treatment by, or under the supervision of, a medical practitioner or a nurse (whether or not in a hospital, clinic or similar place), but does not include:
(a) an ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence, or aggravation, of such an ailment, disorder, defect or morbid condition.
services includes:
(a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and
(b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:
(i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or
(ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii) a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or
(iv) a contract of insurance; or
(v) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or
(vi) any contract for or in relation to the lending of money;
but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.
share includes stock.
ship has the meaning given by section 3(1) of the Admiralty Act 1988.
single price : see section 48(7).
substantially transformed , in relation to goods: see section 255(3).
substantiation notice means a notice under section 219.
substantiation notice compliance period : see section 221(2).
supply , when used as a verb, includes:
(a) in relation to goods—supply (including resupply) by way of sale, exchange, lease, hire or hirepurchase; and
(b) in relation to services—provide, grant or confer;
and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.
Note: Section 5 deals with when a donation is a supply.
supply of limited title : see section 51(2).
telecommunications service : see section 65(2).
termination charge : see section 97(2).
termination period , in relation to an unsolicited consumer agreement, means the period within which the consumer under the agreement is, under section 82 or under the agreement, entitled to terminate the agreement.
tied continuing credit contract means a continuing credit contract under which a credit provider provides credit in respect of the payment by a consumer for goods or services supplied by a supplier in relation to whom the credit provider is a linked credit provider.
tied loan contract means a loan contract entered into between a credit provider and a consumer where:
(a) the credit provider knows, or ought reasonably to know, that the consumer enters into the loan contract wholly or partly for the purposes of payment for goods or services supplied by a supplier; and
(b) at the time the loan contract is entered into the credit provider is a linked credit provider of the supplier.
trade or commerce means:
(a) trade or commerce within Australia; or
(b) trade or commerce between Australia and places outside Australia;
and includes any business or professional activity (whether or not carried on for profit).
transparent :
(a) in relation to a document—means:
(i) expressed in reasonably plain language; and
(ii) legible; and
(iii) presented clearly; and
(b) in relation to a term of a consumer contract—see section 24(3).
unfair , in relation to a term of a consumer contract: see section 24(1).
unsolicited consumer agreement : see section 69.
unsolicited goods means goods sent to a person without any request made by the person or on his or her behalf.
unsolicited services means services supplied to a person without any request made by the person or on his or her behalf.
upfront price : see section 26(2).
warranty against defects : see section 102(3).
(2) In this Schedule:
(a) a reference to engaging in conduct is a reference to doing or refusing to do any act, including:
(i) the making of, or the giving effect to a provision of, a contract or arrangement; or
(ii) the arriving at, or the giving effect to a provision of, an understanding; or
(iii) the requiring of the giving of, or the giving of, a covenant; and
(b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), is a reference to the doing of or the refusing to do any act, including:
(i) the making of, or the giving effect to a provision of, a contract or arrangement; or
(ii) the arriving at, or the giving effect to a provision of, an understanding; or
(iii) the requiring of the giving of, or the giving of, a covenant; and
(c) a reference to refusing to do an act includes a reference to:
(i) refraining (otherwise than inadvertently) from doing that act; or
(ii) making it known that that act will not be done; and
(d) a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.
3 Meaning of consumer
Acquiring goods as a consumer
(1) A person is taken to have acquired particular goods as a consumer if, and only if:
(a) the amount paid or payable for the goods, as worked out under subsections (4) to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is prescribed for the purposes of this paragraph—that greater amount; or
(b) the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or
(c) the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads.
(2) However, subsection (1) does not apply if the person acquired the goods, or held himself or herself out as acquiring the goods:
(a) for the purpose of resupply; or
(b) for the purpose of using them up or transforming them, in trade or commerce:
(i) in the course of a process of production or manufacture; or
(ii) in the course of repairing or treating other goods or fixtures on land.
Acquiring services as a consumer
(3) A person is taken to have acquired particular services as a consumer if, and only if:
(a) the amount paid or payable for the services, as worked out under subsections (4) to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is prescribed for the purposes of subsection (1)(a)—that greater amount; or
(b) the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.
Amounts paid or payable for purchases
(4) For the purposes of subsection (1) or (3), the amount paid or payable for goods or services purchased by a person is taken to be the price paid or payable by the person for the goods or services, unless subsection (5) applies.
(5) For the purposes of subsection (1) or (3), if a person purchased goods or services by a mixed supply and a specified price was not allocated to the goods or services in the contract under which they were purchased, the amount paid or payable for goods or services is taken to be:
(a) if, at the time of the acquisition, the person could have purchased from the supplier the goods or services other than by a mixed supply—the price at which they could have been purchased from the supplier; or
(b) if:
(i) paragraph (a) does not apply; but
(ii) at the time of the acquisition, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply;
the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or
(c) if, at the time of the acquisition, goods or services of the kind acquired could not have been purchased from any supplier except by a mixed supply—the value of the goods or services at that time.
Amounts paid or payable for other acquisitions
(6) For the purposes of subsection (1) or (3), the amount paid or payable for goods or services acquired by a person other than by way of purchase is taken to be the price at which, at the time of the acquisition, the person could have purchased the goods or services from the supplier, unless subsection (7) or (8) applies.
(7) For the purposes of subsection (1) or (3), if:
(a) goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from the supplier, or could have been purchased only by a mixed supply; but
(b) at that time, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply;
the amount paid or payable for the goods or services is taken to be the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier.
(8) For the purposes of subsection (1) or (3), if goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from any supplier other than by a mixed supply, the amount paid or payable for the goods or services is taken to be the value of the goods or services at that time.
Amounts paid or payable for obtaining credit
(9) If:
(a) a person obtains credit in connection with the acquisition of goods or services by him or her; and
(b) the amount paid or payable by him or her for the goods or services is increased because he or she so obtains credit;
obtaining the credit is taken for the purposes of subsection (3) to be the acquisition of a service, and the amount paid or payable by him or her for the service of being provided with the credit is taken to include the amount of the increase.
Presumption that persons are consumers
(10) If it is alleged in any proceeding under this Schedule, or in any other proceeding in respect of a matter arising under this Schedule, that a person was a consumer in relation to particular goods or services, it is presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services.
Mixed supplies
(11) A purchase or other acquisition of goods or services is made by a mixed supply if the goods or services are purchased or acquired together with other property or services, or together with both other property and other services.
Supplies to consumers
(12) In this Schedule, a reference to a supply of goods or services to a consumer is a reference to a supply of goods or services to a person who is taken to have acquired them as a consumer.
4 Misleading representations with respect to future matters
(1) If:
(a) a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and
(b) the person does not have reasonable grounds for making the representation;
the representation is taken, for the purposes of this Schedule, to be misleading.
(2) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:
(a) a party to the proceeding; or
(b) any other person;
the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or
(b) have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.
(4) Subsection (1) does not limit by implication the meaning of a reference in this Schedule to:
(a) a misleading representation; or
(b) a representation that is misleading in a material particular; or
(c) conduct that is misleading or is likely or liable to mislead;
and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.
5 When donations are treated as supplies or acquisitions
(1) For the purposes of this Schedule, other than Parts 33, 34, 43 and 44:
(a) a donation of goods or services is not treated as a supply of the goods or services unless the donation is for promotional purposes; and
(b) receipt of a donation of goods or services is not treated as an acquisition of the goods or services unless the donation is for promotional purposes.
(2) For the purposes of Parts 33, 34, 43 and 44:
(a) any donation of goods or services is treated as a supply of the goods or services; and
(b) receipt of any donation of goods or services is treated as an acquisition of the goods or services.
6 Related bodies corporate
(1) A body corporate is taken to be related to another body corporate if the bodies corporate would, under section 4A(5) of the Competition and Consumer Act, be deemed to be related to each other.
(2) In proceedings under this Schedule, it is presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.
7 Meaning of manufacturer
(1) A manufacturer includes the following:
(a) a person who grows, extracts, produces, processes or assembles goods;
(b) a person who holds himself or herself out to the public as the manufacturer of goods;
(c) a person who 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;
(d) a person (the first person ) who causes or permits another person, in connection with:
(i) the supply or possible supply of goods by that other person; or
(ii) the promotion by that other person by any means of the supply or use of goods;
to hold out the first person to the public as the manufacturer of the goods;
(e) a person who imports goods into Australia if:
(i) the person is not the manufacturer of the goods; and
(ii) at the time of the importation, the manufacturer of the goods does not have a place of business in Australia.
(2) For the purposes of subsection (1)(c):
(a) a name, brand or mark is taken to be applied to goods if:
(i) it is woven in, impressed on, worked into or annexed or affixed to the goods; or
(ii) it is applied to a covering, label, reel or thing in or with which the goods are supplied; and
(b) if the name of a person, a name by which a person carries on business or a brand or mark of a person is applied to goods, it is presumed, unless the contrary is established, that the person caused or permitted the name, brand or mark to be applied to the goods.
(3) If goods are imported into Australia on behalf of a person, the person is taken, for the purposes of paragraph (1)(e), to have imported the goods into Australia.
8 Goods affixed to land or premises
For the purposes of this Schedule, goods are taken to be supplied to a consumer even if they are affixed to land or premises at the time of the supply.
9 Meaning of safety defect in relation to goods
(1) For the purposes of this Schedule, goods have a safety defect if their safety is not such as persons generally are entitled to expect.
(2) In determining the extent of the safety of goods, regard is to be given to all relevant circumstances, including:
(a) the manner in which, and the purposes for which, they have been marketed; and
(b) their packaging; and
(c) the use of any mark in relation to them; and
(d) any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and
(e) what might reasonably be expected to be done with or in relation to them; and
(f) the time when they were supplied by their manufacturer.
(3) An inference that goods have a safety defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer goods of the same kind were supplied.
(4) An inference that goods have a safety defect is not to be made only because:
(a) there was compliance with a Commonwealth mandatory standard for them; and
(b) that standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by their manufacturer.
10 Asserting a right to payment
(1) A person is taken to assert a right to payment from another person if the person:
(a) makes a demand for the payment or asserts a present or prospective right to the payment; or
(b) threatens to bring any legal proceedings with a view to obtaining the payment; or
(c) places or causes to be placed the name of the other person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining the payment; or
(d) invokes or causes to be invoked any other collection procedure, or threatens to do so, with a view to obtaining the payment; or
(e) sends any invoice or other document that:
(i) states the amount of the payment; or
(ii) sets out the price of unsolicited goods or unsolicited services; or
(iii) sets out the charge for placing, in a publication, an entry or advertisement;
and does not contain a statement, to the effect that the document is not an assertion of a right to a payment, that complies with any requirements prescribed by the regulations.
(2) For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a person is taken to have been sent by that person unless the contrary is established.
11 References to acquisition, supply and resupply
In this Schedule:
(a) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods pursuant to a supply of the goods; and
(b) a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services; and
(c) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both; and
(d) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; and
(e) a reference to the resupply of goods acquired from a person includes a reference to:
(i) a supply of the goods to another person in an altered form or condition; and
(ii) a supply to another person of goods in which the firstmentioned goods have been incorporated; and
(f) a reference to the resupply of services (the original services ) acquired from a person (the original supplier ) includes a reference to:
(i) a supply of the original services to another person in an altered form or condition; and
(ii) a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.
12 Application of Schedule in relation to leases and licences of land and buildings
In this Schedule:
(a) a reference to a contract includes a reference to a lease of, or a licence in respect of, land or a building or part of a building (despite the express references in this Schedule to such leases or licences); and
(b) a reference to making or entering into a contract, in relation to such a lease or licence, is a reference to granting or taking the lease or licence; and
(c) a reference to a party to a contract, in relation to such a lease or licence, includes a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.
13 Loss or damage to include injury
In this Schedule:
(a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and
(b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.
14 Meaning of continuing credit contract
(1) If:
(a) a person (the creditor ), in the course of a business carried on by the creditor, agrees with a consumer to provide credit to the consumer in relation to:
(i) payment for goods or services; or
(ii) cash supplied by the creditor to the consumer from time to time; or
(iii) payment by the creditor to another person in relation to goods or services, or cash, supplied by that other person to the consumer from time to time; and
(b) the creditor:
(i) has an agreement, arrangement or understanding (the credit agreement ) with the consumer in relation to the provision of the credit; or
(ii) is engaged in a course of dealing (the credit dealing ) with the consumer in relation to the provision of the credit; and
(c) the amounts owing to the creditor from time to time under the credit agreement or credit dealing are, or are to be, calculated on the basis that:
(i) all amounts owing; and
(ii) all payments made;
by the consumer under, or in respect of, the credit agreement or credit dealing are entered in one or more accounts kept for the purpose of that agreement or dealing;
the credit agreement or credit dealing is taken, for the purposes of this Schedule, to be a continuing credit contract .
(2) If subsection (1)(a)(iii) applies, the creditor is taken, for the purposes of this section, to have provided credit to the consumer in relation to any goods or services, or cash, supplied by another person to the consumer to the extent of any payments made, or to be made, by the creditor to that other person.
15 Contraventions of this Schedule
Conduct is not taken, for the purposes of this Schedule, to contravene a provision of this Schedule merely because of the application of:
(a) section 23(1); or
(b) a provision of Division 1 of Part 32 (other than section 66(2)); or
(c) a provision of Part 35.
16 Severability
(1) If the making of a contract after the commencement of this section contravenes this Schedule because the contract includes a particular provision, nothing in this Schedule affects the validity or enforceability of the contract otherwise than in relation to that provision, so far as that provision is severable.
(2) This section has effect subject to any order made under Division 4 of Part 52.
17 References to provisions in this Schedule
In this Schedule, a reference to a provision is a reference to a provision of this Schedule, unless the contrary intention appears.
Chapter 2—General protections
Part 21—Misleading or deceptive conduct
18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in Part 31 (which is about unfair practices) limits by implication subsection (1).
Note: For rules relating to representations as to the country of origin of goods, see Part 53.
19 Application of this Part to information providers
(1) This Part does not apply to a publication of matter by an information provider if:
(a) in any case—the information provider made the publication in the course of carrying on a business of providing information; or
(b) if the information provider is the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or the holder of a licence granted under the Broadcasting Services Act 1992—the publication was by way of a radio or television broadcast by the information provider.
(2) Subsection (1) does not apply to a publication of an advertisement.
(3) Subsection (1) does not apply to a publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, goods or services (the publicised goods or services ), if:
(a) the publicised goods or services were goods or services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised goods or services; or
(c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies goods or services of the same kind as the publicised goods or services.
(4) Subsection (1) does not apply to a publication of matter in connection with the sale or grant, or possible sale or grant, of, or the promotion by any means of the sale or grant of, interests in land (the publicised interests in land ), if:
(a) the publicised interests in land were interests of a kind sold or granted by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who sells or grants interests of the same kind as the publicised interests in land; or
(c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that sells or grants interests of the same kind as the publicised interests in land.
(5) An information provider is a person who carries on a business of providing information.
(6) Without limiting subsection (5), each of the following is an information provider :
(a) the holder of a licence granted under the Broadcasting Services Act 1992;
(b) a person who is the provider of a broadcasting service under a class licence under that Act;
(c) the holder of a licence continued in force by section 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992;
(d) the Australian Broadcasting Corporation;
(e) the Special Broadcasting Service Corporation.
Part 22—Unconscionable conduct
20 Unconscionable conduct within the meaning of the unwritten law
(1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) This section does not apply to conduct that is prohibited by section 21 or 22.
21 Unconscionable conduct
(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to another person, engage in conduct that is, in all the circumstances, unconscionable.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (the consumer ), the court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the consumer; and
(b) whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
(c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
(e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the supplier.
(3) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of goods or services to a person by reason only that the person institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration.
(4) For the purpose of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person:
(a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.
(5) A reference in this section to goods or services is a reference to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.
(6) A reference in this section to the supply or possible supply of goods does not include a reference to the supply or possible supply of goods for the purpose of resupply or for the purpose of using them up or transforming them in trade or commerce.
(7) Section 4 applies for the purposes of this section in the same way as it applies for the purposes of Division 1 of Part 31.
22 Unconscionable conduct in business transactions
(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to another person (other than a listed public company); or
(b) the acquisition or possible acquisition of goods or services from another person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (the business consumer ), the court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the business consumer; and
(b) whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
(c) whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business consumer or a person acting on behalf of the business consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
(e) the amount for which, and the circumstances under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier; and
(f) the extent to which the supplier’s conduct towards the business consumer was consistent with the supplier’s conduct in similar transactions between the supplier and other like business consumers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the business consumer acted on the reasonable belief that the supplier would comply with that code; and
(i) the extent to which the supplier unreasonably failed to disclose to the business consumer:
(i) any intended conduct of the supplier that might affect the interests of the business consumer; and
(ii) any risks to the business consumer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the business consumer); and
(j) if there is a contract between the supplier and the business consumer for the supply of the goods or services:
(i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the business consumer; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the supplier and the business consumer in complying with the terms and conditions of the contract; and
(iv) any conduct that the supplier or the business consumer engaged in, in connection with their commercial relationship, after they entered into the contract; and
(k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the business consumer for the supply of the goods or services; and
(l) the extent to which the supplier and the business consumer acted in good faith.
(3) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the acquirer ) has contravened subsection (1) in connection with the acquisition or possible acquisition of goods or services from another person (the small business supplier ), the court may have regard to:
(a) the relative strengths of the bargaining positions of the acquirer and the small business supplier; and
(b) whether, as a result of conduct engaged in by the acquirer, the small business supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and
(c) whether the small business supplier was able to understand any documents relating to the acquisition or possible acquisition of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the small business supplier or a person acting on behalf of the small business supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the goods or services; and
(e) the amount for which, and the circumstances in which, the small business supplier could have supplied identical or equivalent goods or services to a person other than the acquirer; and
(f) the extent to which the acquirer’s conduct towards the small business supplier was consistent with the acquirer’s conduct in similar transactions between the acquirer and other like small business suppliers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the small business supplier acted on the reasonable belief that the acquirer would comply with that code; and
(i) the extent to which the acquirer unreasonably failed to disclose to the small business supplier:
(i) any intended conduct of the acquirer that might affect the interests of the small business supplier; and
(ii) any risks to the small business supplier arising from the acquirer’s intended conduct (being risks that the acquirer should have foreseen would not be apparent to the small business supplier); and
(j) if there is a contract between the acquirer and the small business supplier for the acquisition of the goods or services:
(i) the extent to which the acquirer was willing to negotiate the terms and conditions of the contract with the small business supplier; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the acquirer and the small business supplier in complying with the terms and conditions of the contract; and
(iv) any conduct that the acquirer or the small business supplier engaged in, in connection with their commercial relationship, after they entered into the contract; and
(k) without limiting paragraph (j), whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the small business supplier for the acquisition of the goods or services; and
(l) the extent to which the acquirer and the small business supplier acted in good faith.
(4) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with:
(a) the supply or possible supply of goods or services to another person; or
(b) the acquisition or possible acquisition of goods or services from another person;
by reason only that the firstmentioned person institutes legal proceedings in relation to that supply, possible supply, acquisition or possible acquisition or refers to arbitration a dispute or claim in relation to that supply, possible supply, acquisition or possible acquisition.
(5) For the purpose of determining whether a person has contravened subsection (1):
(a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b) the court may have regard to circumstances existing before the commencement of this section but not to conduct engaged in before that commencement.
(6) A reference in this section to the supply or possible supply of goods or services is a reference to the supply or possible supply of goods or services to a person whose acquisition or possible acquisition of the goods or services is or would be for the purpose of trade or commerce.
(7) A reference in this section to the acquisition or possible acquisition of goods or services is a reference to the acquisition or possible acquisition of goods or services by a person whose acquisition or possible acquisition of the goods or services is or would be for the purpose of trade or commerce.
(8) Section 4 applies for the purposes of this section in the same way as it applies for the purposes of Division 1 of Part 31.
Chapter 3—Specific protections
Part 32—Consumer transactions
Division 1—Consumer guarantees
Subdivision A—Guarantees relating to the supply of goods
51 Guarantee as to title
(1) If a person (the supplier ) supplies goods to a consumer, there is a guarantee that the supplier will have a right to dispose of the property in the goods when that property is to pass to the consumer.
(2) Subsection (1) does not apply to a supply (a supply of limited title ) if an intention that the supplier of the goods should transfer only such title as the supplier, or another person, may have:
(a) appears from the contract for the supply; or
(b) is to be inferred from the circumstances of that contract.
(3) This section does not apply if the supply is a supply by way of hire or lease.
52 Guarantee as to undisturbed possession
(1) If:
(a) a person (the supplier ) supplies goods to a consumer; and
(b) the supply is not a supply of limited title;
there is a guarantee that the consumer has the right to undisturbed possession of the goods.
(2) Subsection (1) does not apply to the extent that the consumer’s undisturbed possession of the goods may be lawfully disturbed by a person who is entitled to the benefit of any security, charge or encumbrance disclosed to the consumer before the consumer agreed to the supply.
(3) If:
(a) a person (the supplier ) supplies goods to a consumer; and
(b) the supply is a supply of limited title;
there is a guarantee that the following persons will not disturb the consumer’s possession of the goods:
(c) the supplier;
(d) if the parties to the contract for the supply intend that the supplier should transfer only such title as another person may have—that other person;
(e) anyone claiming through or under the supplier or that other person (otherwise than under a security, charge or encumbrance disclosed to the consumer before the consumer agreed to the supply).
(4) This section applies to a supply by way of hire or lease only for the period of the hire or lease.
53 Guarantee as to undisclosed securities etc.
(1) If:
(a) a person (the supplier ) supplies goods to a consumer; and
(b) the supply is not a supply of limited title;
there is a guarantee that:
(c) the goods are free from any security, charge or encumbrance:
(i) that was not disclosed to the consumer, in writing, before the consumer agreed to the supply; or
(ii) that was not created by or with the express consent of the consumer; and
(d) the goods will remain free from such a security, charge or encumbrance until the time when the property in the goods passes to the consumer.
(2) A supplier does not fail to comply with the guarantee only because of the existence of a floating charge over the supplier’s assets unless and until the charge becomes fixed and enforceable by the person to whom the charge is given.
Note: Section 339 of the Personal Property Securities Act 2009 affects the meaning of the references in this subsection to a floating charge and a fixed charge.
(3) If:
(a) a person (the supplier ) supplies goods to a consumer; and
(b) the supply is a supply of limited title;
there is a guarantee that all securities, charges or encumbrances known to the supplier, and not known to the consumer, were disclosed to the consumer before the consumer agreed to the supply.
(4) This section does not apply if the supply is a supply by way of hire or lease.
54 Guarantee as to acceptable quality
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are of acceptable quality.
(2) Goods are of acceptable quality if they are as:
(a) fit for all the purposes for which goods of that kind are commonly supplied; and
(b) acceptable in appearance and finish; and
(c) free from defects; and
(d) safe; and
(e) durable;
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).
(3) The matters for the purposes of subsection (2) are:
(a) the nature of the goods; and
(b) the price of the goods (if relevant); and
(c) any statements made about the goods on any packaging or label on the goods; and
(d) any representation made about the goods by the supplier or manufacturer of the goods; and
(e) any other relevant circumstances relating to the supply of the goods.
(4) If:
(a) goods supplied to a consumer are not of acceptable quality; and
(b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply;
the goods are taken to be of acceptable quality.
(5) If:
(a) goods are displayed for sale or hire; and
(b) the goods would not be of acceptable quality if they were supplied to a consumer;
the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.
(6) Goods do not fail to be of acceptable quality if:
(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b) they are damaged by abnormal use.
(7) Goods do not fail to be of acceptable quality if:
(a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and
(b) the examination ought reasonably to have revealed that the goods were not of acceptable quality.
55 Guarantee as to fitness for any disclosed purpose etc.
(1) If:
(a) a person (the supplier ) supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.
(2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:
(a) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or
(b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).
(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.
56 Guarantee relating to the supply of goods by description
(1) If:
(a) a person supplies, in trade or commerce, goods by description to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods correspond with the description.
(2) A supply of goods is not prevented from being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer.
(3) If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply.
57 Guarantees relating to the supply of goods by sample or demonstration model
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer by reference to a sample or demonstration model; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that:
(c) the goods correspond with the sample or demonstration model in quality, state or condition; and
(d) if the goods are supplied by reference to a sample—the consumer will have a reasonable opportunity to compare the goods with the sample; and
(e) the goods are free from any defect that:
(i) would not be apparent on reasonable examination of the sample or demonstration model; and
(ii) would cause the goods not to be of acceptable quality.
(2) If goods are supplied by reference to a sample or demonstration model as well as by description, the guarantees in section 56 and in this section both apply.
58 Guarantee as to repairs and spare parts
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the manufacturer of the goods will take reasonable action to ensure that facilities for the repair of the goods, and parts for the goods, are reasonably available for a reasonable period after the goods are supplied.
(2) This section does not apply if the manufacturer took reasonable action to ensure that the consumer would be given written notice, at or before the time when the consumer agrees to the supply of the goods, that:
(a) facilities for the repair of the goods would not be available or would not be available after a specified period; or
(b) parts for the goods would not be available or would not be available after a specified period.
59 Guarantee as to express warranties
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the manufacturer of the goods will comply with any express warranty given or made by the manufacturer in relation to the goods.
(2) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the supplier will comply with any express warranty given or made by the supplier in relation to the goods.
Subdivision B—Guarantees relating to the supply of services
60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
61 Guarantees as to fitness for a particular purpose etc.
(1) If:
(a) a person (the supplier ) supplies, in trade or commerce, services to a consumer; and
(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.
(2) If:
(a) a person (the supplier ) supplies, in trade or commerce, services to a consumer; and
(b) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;
the result that the consumer wishes the services to achieve;
there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.
(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.
(4) This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.
62 Guarantee as to reasonable time for supply
If:
(a) a person (the supplier ) supplies, in trade or commerce, services to a consumer; and
(b) the time within which the services are to be supplied:
(i) is not fixed by the contract for the supply of the services; or
(ii) is not to be determined in a manner agreed to by the consumer and supplier;
there is a guarantee that the services will be supplied within a reasonable time.
63 Services to which this Subdivision does not apply
This Subdivision does not apply to services that are, or are to be, supplied under:
(a) a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored; or
(b) a contract of insurance.
Subdivision C—Guarantees not to be excluded etc. by contract
64 Guarantees not to be excluded etc. by contract
(1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying:
(a) the application of all or any of the provisions of this Division; or
(b) the exercise of a right conferred by such a provision; or
(c) any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services.
(2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision.
64A Limitation of liability for failures to comply with guarantees
(1) A term of a contract for the supply by a person of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 64 merely because the term limits the person’s liability for failure to comply with a guarantee (other than a guarantee under section 51, 52 or 53) to one or more of the following:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(d) the payment of the cost of having the goods repaired.
(2) A term of a contract for the supply by a person of services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 64 merely because the term limits the person’s liability for failure to comply with a guarantee to:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
(3) This section does not apply in relation to a term of a contract if the person to whom the goods or services were supplied establishes that it is not fair or reasonable for the person who supplied the goods or services to rely on that term of the contract.
(4) In determining for the purposes of subsection (3) whether or not reliance on a term of a contract is fair or reasonable, a court is to have regard to all the circumstances of the case, and in particular to the following matters:
(a) the strength of the bargaining positions of the person who supplied the goods or services and the person to whom the goods or services were supplied (the buyer ) relative to each other, taking into account, among other things, the availability of equivalent goods or services and suitable alternative sources of supply;
(b) whether the buyer received an inducement to agree to the term or, in agreeing to the term, had an opportunity of acquiring the goods or services or equivalent goods or services from any source of supply under a contract that did not include that term;
(c) whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);
(d) in the case of the supply of goods, whether the goods were manufactured, processed or adapted to the special order of the buyer.
Subdivision D—Miscellaneous
65 Application of this Division to supplies of gas, electricity and telecommunications
(1) This Division does not apply to a supply if the supply:
(a) is a supply of a kind specified in the regulations; and
(b) is a supply of gas, electricity or a telecommunications service.
(2) A telecommunications service is a service for carrying communications by means of guided or unguided electromagnetic energy or both.
66 Display notices
(1) The Commonwealth Minister may determine, in writing, that persons (the suppliers ) who make supplies, or supplies of a specified kind, to which guarantees apply under this Division are required to display, in accordance with the determination, a notice that meets the requirements of the determination.
(2) A supplier who makes a supply to a consumer to which a guarantee applies under this Division, and to which such a determination relates, must ensure that a notice that meets those requirements is, in accordance with the determination:
(a) if the consumer takes delivery of the goods or services at the supplier’s premises—displayed at those premises; or
(b) otherwise—drawn to the consumer’s attention before the consumer agrees to the supply of the goods.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(3) Without limiting subsection (1), a determination under that subsection may do all or any of the following:
(a) require the notice to include specified information about the application of all or any of the provisions of this Division and Part 54;
(b) specify where the notice must be displayed;
(c) specify how the notice must be drawn to the attention of consumers;
(d) specify requirements as to the form of the notice.
67 Conflict of laws
If:
(a) the proper law of a contract for the supply of goods or services to a consumer would be the law of any part of Australia but for a term of the contract that provides otherwise; or
(b) a contract for the supply of goods or services to a consumer contains a term that purports to substitute, or has the effect of substituting, the following provisions for all or any of the provisions of this Division:
(i) the provisions of the law of a country other than Australia;
(ii) the provisions of the law of a State or a Territory;
the provisions of this Division apply in relation to the supply under the contract despite that term.
68 Convention on Contracts for the International Sale of Goods
The provisions of the United Nations Convention on Contracts for the International Sale of Goods, done at Vienna on 11 April 1980, as amended and in force for Australia from time to time, prevail over the provisions of this Division to the extent of any inconsistency.
Note: The text of the Convention is set out in Australian Treaty Series 1988 No. 32 ([1988] ATS 32). In 2010, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Part 35—Liability of manufacturers for goods with safety defects
Division 1—Actions against manufacturers for goods with safety defects
138 Liability for loss or damage suffered by an injured individual
(1) A manufacturer of goods is liable to compensate an individual if:
(a) the manufacturer supplies the goods in trade or commerce; and
(b) the goods have a safety defect; and
(c) the individual suffers injuries because of the safety defect.
(2) The individual may recover, by action against the manufacturer, the amount of the loss or damage suffered by the individual.
(3) If the individual dies because of the injuries, a law of a State or a Territory about liability in respect of the death of individuals applies as if:
(a) the action were an action under the law of the State or Territory for damages in respect of the injuries; and
(b) the safety defect were the manufacturer’s wrongful act, neglect or default.
139 Liability for loss or damage suffered by a person other than an injured individual
(1) A manufacturer of goods is liable to compensate a person if:
(a) the manufacturer supplies the goods in trade or commerce; and
(b) the goods have a safety defect; and
(c) an individual (other than the person) suffers injuries because of the safety defect; and
(d) the person suffers loss or damage because of:
(i) the injuries; or
(ii) if the individual dies because of the injuries—the individual’s death; and
(e) the loss or damage does not come about because of a business or professional relationship between the person and the individual.
(2) The person may recover, by action against the manufacturer, the amount of the loss or damage suffered by the person.
140 Liability for loss or damage suffered by a person if other goods are destroyed or damaged
(1) A manufacturer of goods is liable to compensate a person if:
(a) the manufacturer supplies the goods in trade or commerce; and
(b) the goods have a safety defect; and
(c) other goods of a kind ordinarily acquired for personal, domestic or household use or consumption are destroyed or damaged because of the safety defect; and
(d) the person used or consumed, or intended to use or consume, the destroyed or damaged goods for personal, domestic or household use or consumption; and
(e) the person suffers loss or damage as a result of the destruction or damage.
(2) The person may recover, by action against the manufacturer, the amount of the loss or damage suffered by the person.
141 Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged
(1) A manufacturer of goods is liable to compensate a person if:
(a) the manufacturer supplies the goods in trade or commerce; and
(b) the goods have a safety defect; and
(c) land, buildings or fixtures are destroyed or damaged because of the safety defect; and
(d) the land, buildings or fixtures are ordinarily acquired for private use; and
(e) the person used, or intended to use, the land, buildings or fixtures for private use; and
(f) the person suffers loss or damage as a result of the destruction or damage.
(2) The person may recover, by action against the manufacturer, the amount of the loss or damage suffered by the person.
142 Defences to defective goods actions
In a defective goods action, it is a defence if it is established that:
(a) the safety defect in the goods that is alleged to have caused the loss or damage did not exist:
(i) in the case of electricity—at the time at which the electricity was generated, being a time before it was transmitted or distributed; or
(ii) in any other case—at the time when the goods were supplied by their actual manufacturer; or
(b) the goods had that safety defect only because there was compliance with a mandatory standard for them; or
(c) the state of scientific or technical knowledge at the time when the goods were supplied by their manufacturer was not such as to enable that safety defect to be discovered; or
(d) if the goods that had that safety defect were comprised in other goods—that safety defect is attributable only to:
(i) the design of the other goods; or
(ii) the markings on or accompanying the other goods; or
(iii) the instructions or warnings given by the manufacturer of the other goods.
Division 2—Defective goods actions
143 Time for commencing defective goods actions
(1) Subject to subsection (2), a person may commence a defective goods action at any time within 3 years after the time the person became aware, or ought reasonably to have become aware, of all of the following:
(a) the alleged loss or damage;
(b) the safety defect of the goods;
(c) the identity of the person who manufactured the goods.
(2) A defective goods action must be commenced within 10 years of the supply by the manufacturer of the goods to which the action relates.
144 Liability joint and several
If 2 or more persons are liable under Division 1 for the same loss or damage, they are jointly and severally liable.
145 Survival of actions
A law of a State or a Territory about the survival of causes of action vested in persons who die applies to actions under Division 1.
146 No defective goods action where workers’ compensation law etc. applies
Division 1 does not apply to a loss or damage in respect of which an amount has been, or could be, recovered under a law of the Commonwealth, a State or a Territory that:
(a) relates to workers’ compensation; or
(b) gives effect to an international agreement.
147 Unidentified manufacturer
(1) A person who:
(a) wishes to institute a defective goods action; but
(b) does not know who is the manufacturer of the goods to which the action would relate;
may, by written notice given to a supplier, or each supplier, of the goods who is known to the person, request the supplier or suppliers to give the person particulars identifying the manufacturer of the goods, or the supplier of the goods to the supplier requested.
(2) If, 30 days after the person made the request or requests, the person still does not know who is the manufacturer of the goods, then each supplier:
(a) to whom the request was made; and
(b) who did not comply with the request;
is taken, for the purposes of the defective goods liability action (but not for the purposes of section 142(c)), to be the manufacturer of the goods.
148 Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard
(1) If a person (however described) against whom a defective goods action is brought raises the defence that the goods had the alleged safety defect only because there was compliance with a Commonwealth mandatory standard for the goods, the person must, as soon as practicable after raising that defence, give the Commonwealth:
(a) a prescribed notice of the action and of that defence; and
(b) a copy of the person’s defence in the action.
(2) The giving of the notice and defence makes the Commonwealth a defendant in the action.
(3) If, in the action, the court finds that the person (the plaintiff ) by whom the action is brought would, but for the defence referred to in subsection (1), have succeeded against the person (other than the Commonwealth) against which the action is brought, then:
(a) the Commonwealth, and not the person (other than the Commonwealth) against which the action is brought, is liable to pay the plaintiff for the amount of the loss or damage caused by the safety defect; and
(b) the court is to enter judgment against the Commonwealth for that amount; and
(c) the court may make such orders for costs as the court considers just.
149 Representative actions by the regulator
(1) The regulator may, by application, commence a defective goods action on behalf of one or more persons identified in the application who have suffered the loss or damage in relation to which the action is commenced.
(2) The regulator may only make the application if it has obtained the written consent of the person, or each of the persons, on whose behalf the application is being made.
Division 3—Miscellaneous
150 Application of all or any provisions of this Part etc. not to be excluded or modified
(1) Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term) that purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying, any of the following is void:
(a) the application of all or any of the provisions of this Part;
(b) the exercise of a right conferred by any of those provisions;
(c) any liability under any of those provisions.
(2) A term of a contract is not taken to exclude, restrict or modify the application of a provision of this Part unless the term does so expressly or is inconsistent with that provision.
Part 54—Remedies relating to guarantees
Division 1—Action against suppliers
Subdivision A—Action against suppliers of goods
259 Action against suppliers of goods
(1) A consumer may take action under this section if:
(a) a person (the supplier ) supplies, in trade or commerce, goods to the consumer; and
(b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 32 (other than sections 58 and 59(1)) is not complied with.
(2) If the failure to comply with the guarantee can be remedied and is not a major failure:
(a) the consumer may require the supplier to remedy the failure within a reasonable time; or
(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time—the consumer may:
(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or
(ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.
(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:
(a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or
(b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.
(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.
(5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier.
(6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).
(7) The consumer may take action under this section whether or not the goods are in their original packaging.
260 When a failure to comply with a guarantee is a major failure
A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:
(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
(b) the goods depart in one or more significant respects:
(i) if they were supplied by description—from that description; or
(ii) if they were supplied by reference to a sample or demonstration model—from that sample or demonstration model; or
(c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(d) the goods are unfit for a disclosed purpose that was made known to:
(i) the supplier of the goods; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;
and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(e) the goods are not of acceptable quality because they are unsafe.
261 How suppliers may remedy a failure to comply with a guarantee
If, under section 259(2)(a), a consumer requires a supplier of goods to remedy a failure to comply with a guarantee referred to in section 259(1)(b), the supplier may comply with the requirement:
(a) if the failure relates to title—by curing any defect in title; or
(b) if the failure does not relate to title—by repairing the goods; or
(c) by replacing the goods with goods of an identical type; or
(d) by refunding:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods.
262 When consumers are not entitled to reject goods
(1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if:
(a) the rejection period for the goods has ended; or
(b) the goods have been lost, destroyed or disposed of by the consumer; or
(c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or
(d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them.
(2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:
(a) the type of goods; and
(b) the use to which a consumer is likely to put them; and
(c) the length of time for which it is reasonable for them to be used; and
(d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
263 Consequences of rejecting goods
(1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods.
(2) The consumer must return the goods to the supplier unless:
(a) the goods have already been returned to, or retrieved by, the supplier; or
(b) the goods cannot be returned, removed or transported without significant cost to the consumer because of:
(i) the nature of the failure to comply with the guarantee to which the rejection relates; or
(ii) the size or height, or method of attachment, of the goods.
(3) If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier’s expense.
(4) The supplier must, in accordance with an election made by the consumer:
(a) refund:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or
(b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier.
(5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier.
(6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.
264 Replaced goods
If the goods are replaced under section 261(c) or 263(4)(b):
(a) the replacement goods are taken, for the purposes of Division 1 of Part 32 and this Part, to be supplied by the supplier; and
(b) the provisions of Division 1 of Part 32 and this Part apply in relation to the replacement goods.
265 Termination of contracts for the supply of services that are connected with rejected goods
(1) If:
(a) under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods; and
(b) the supplier is required under section 263(4)(a) to give the consumer a refund; and
(c) a person supplies, in trade or commerce, services to the consumer that are connected with the rejected goods;
the consumer may terminate the contract for the supply of the services.
(2) The termination takes effect:
(a) at the time the termination is made known to the supplier of the services (whether by words or by conduct indicating the consumer’s intention to terminate the contract); or
(b) if it is not reasonably practicable to communicate with the supplier of the services—at the time the consumer indicates, by means which are reasonable in the circumstances, his or her intention to terminate the contract.
(3) The consumer is entitled to recover, by action against the supplier of the services, a refund of:
(a) any money paid by the consumer for the services; and
(b) an amount that is equal to the value of any other consideration provided by the consumer for the services;
to the extent that the consumer has not already consumed the services at the time the termination takes effect.
266 Rights of gift recipients
If a consumer acquires goods from a supplier and gives them to another person as a gift, the other person may, subject to any defence which would be available to the supplier against the consumer:
(a) exercise any rights or remedies under this Subdivision which would be available to the other person if he or she had acquired the goods from the supplier; and
(b) any reference in this Subdivision to a consumer includes a reference to the other person accordingly.
Subdivision B—Action against suppliers of services
267 Action against suppliers of services
(1) A consumer may take action under this section if:
(a) a person (the supplier ) supplies, in trade or commerce, services to the consumer; and
(b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 32 is not complied with; and
(c) unless the guarantee is the guarantee under section 60—the failure to comply with the guarantee did not occur only because of:
(i) an act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier; or
(ii) a cause independent of human control that occurred after the services were supplied.
(2) If the failure to comply with the guarantee can be remedied and is not a major failure:
(a) the consumer may require the supplier to remedy the failure within a reasonable time; or
(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time—the consumer may:
(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or
(ii) terminate the contract for the supply of the services.
(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:
(a) terminate the contract for the supply of the services; or
(b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services.
(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.
(5) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).
268 When a failure to comply with a guarantee is a major failure
A failure to comply with a guarantee referred to in section 267(1)(b) that applies to a supply of services is a major failure if:
(a) the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
(b) the services are substantially unfit for a purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(c) both of the following apply:
(i) the services, and any product resulting from the services, are unfit for a particular purpose for which the services were acquired by the consumer that was made known to the supplier of the services;
(ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(d) both of the following apply:
(i) the services, and any product resulting from the services, are not of such a nature, or quality, state or condition, that they might reasonably be expected to achieve a result desired by the consumer that was made known to the supplier;
(ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to achieve such a result; or
(e) the supply of the services creates an unsafe situation.
269 Termination of contracts for the supply of services
(1) This section applies if, under section 267, a consumer terminates a contract for the supply of services.
(2) The termination takes effect:
(a) at the time the termination is made known to the supplier of the services (whether by words or by conduct indicating the consumer’s intention to terminate the contract); or
(b) if it is not reasonably practicable to communicate with the supplier of the services—at the time the consumer indicates, by means which are reasonable in the circumstances, his or her intention to terminate the contract.
(3) The consumer is entitled to recover, by action against the supplier of the services, a refund of:
(a) any money paid by the consumer for the services; and
(b) an amount that is equal to the value of any other consideration provided by the consumer for the services;
to the extent that the consumer has not already consumed the services at the time the termination takes effect.
270 Termination of contracts for the supply of goods that are connected with terminated services
(1) If:
(a) under section 267, a consumer terminates a contract for the supply of services; and
(b) a person (the supplier ) has supplied, in trade or commerce, goods to the consumer that are connected with the services;
then:
(c) the consumer is taken to have rejected the goods at the time the termination of the contract takes effect; and
(d) the consumer must return the goods to the supplier of the goods unless:
(i) the goods have already been returned to, or retrieved by, the supplier; or
(ii) the goods cannot be returned, removed or transported without significant cost to the consumer because of the nature of the failure to comply with the guarantee to which the rejection relates, or because of the size or height, or method of attachment, of the goods; and
(e) the supplier must refund:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods.
(2) If subsection (1)(d)(ii) applies, the supplier must collect the goods at the supplier’s expense.
Division 2—Action for damages against manufacturers of goods
271 Action for damages against manufacturers of goods
(1) If:
(a) the guarantee under section 54 applies to a supply of goods to a consumer; and
(b) the guarantee is not complied with;
an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.
(2) Subsection (1) does not apply if the guarantee under section 54 is not complied with only because of:
(a) an act, default or omission of, or any representation made by, any person other than the manufacturer or an employee or agent of the manufacturer; or
(b) a cause independent of human control that occurred after the goods left the control of the manufacturer; or
(c) the fact that the price charged by the supplier was higher than the manufacturer’s recommended retail price, or the average retail price, for the goods.
(3) If:
(a) a person supplies, in trade or commerce, goods by description to a consumer; and
(b) the description was applied to the goods by or on behalf of the manufacturer of the goods, or with express or implied consent of the manufacturer; and
(c) the guarantee under section 56 applies to the supply and it is not complied with;
an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.
(4) Subsection (3) does not apply if the guarantee under section 56 is not complied with only because of:
(a) an act, default or omission of any person other than the manufacturer or an employee or agent of the manufacturer; or
(b) a cause independent of human control that occurred after the goods left the control of the manufacturer.
(5) If:
(a) the guarantee under section 58 or 59(1) applies to a supply of goods to a consumer; and
(b) the guarantee is not complied with;
an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.
(6) If an affected person in relation to goods has, in accordance with an express warranty given or made by the manufacturer of the goods, required the manufacturer to remedy a failure to comply with a guarantee referred to in subsection (1), (3) or (5):
(a) by repairing the goods; or
(b) by replacing the goods with goods of an identical type;
then, despite that subsection, the affected person is not entitled to commence an action under that subsection to recover damages of a kind referred to in section 272(1)(a) unless the manufacturer has refused or failed to remedy the failure, or has failed to remedy the failure within a reasonable time.
(7) The affected person in relation to the goods may commence an action under this section whether or not the goods are in their original packaging.
272 Damages that may be recovered by action against manufacturers of goods
(1) In an action for damages under this Division, an affected person in relation to goods is entitled to recover damages for:
(a) any reduction in the value of the goods, resulting from the failure to comply with the guarantee to which the action relates, below whichever of the following prices is lower:
(i) the price paid or payable by the consumer for the goods;
(ii) the average retail price of the goods at the time of supply; and
(b) any loss or damage suffered by the affected person because of the failure to comply with the guarantee to which the action relates if it was reasonably foreseeable that the affected person would suffer such loss or damage as a result of such a failure.
(2) Without limiting subsection (1)(b), the cost of inspecting and returning the goods to the manufacturer is taken to be a reasonably foreseeable loss suffered by the affected person as a result of the failure to comply with the guarantee.
(3) Subsection (1)(b) does not apply to loss or damage suffered through a reduction in the value of the goods.
273 Time limit for actions against manufacturers of goods
An affected person may commence an action for damages under this Division at any time within 3 years after the day on which the affected person first became aware, or ought reasonably to have become aware, that the guarantee to which the action relates has not been complied with.
Division 3—Miscellaneous
274 Indemnification of suppliers by manufacturers
(1) A manufacturer of goods is liable to indemnify a person (the supplier ) who supplies the goods to a consumer if:
(a) the supplier is liable to pay damages under section 259(4) to the consumer for loss or damage suffered by the consumer; and
(b) the manufacturer is or would be liable under section 271 to pay damages to the consumer for the same loss or damage.
(2) Without limiting subsection (1), a manufacturer of goods is liable to indemnify a person (the supplier ) who supplies the goods to a consumer if:
(a) the supplier incurs costs because the supplier is liable under this Part for a failure to comply with a guarantee that applies to the supply under Subdivision A of Division 1 of Part 32; and
(b) the failure is:
(i) a failure to comply with the guarantee under section 54; or
(ii) a failure to comply with the guarantee under section 55 in relation to a disclosed purpose that the consumer made known to the manufacturer either directly or through the supplier or the person referred to in section 55(2)(a)(ii); or
(iii) a failure to comply with the guarantee under section 56 in relation to a description that was applied to the goods by or on behalf of the manufacturer of the goods, or with the express or implied consent of the manufacturer.
(3) The supplier may, with respect to the manufacturer’s liability to indemnify the supplier, commence an action against the manufacturer in a court of competent jurisdiction for such legal or equitable relief as the supplier could have obtained if that liability had arisen under a contract of indemnity made between them.
(4) The supplier may commence the action at any time within 3 years after the earliest of the following days:
(a) the day, or the first day, as the case may be, on which the supplier made a payment with respect to, or otherwise discharged in whole or in part, the liability of the supplier to the consumer;
(b) the day on which a proceeding was commenced by the consumer against the supplier with respect to that liability or, if more than one such proceeding was commenced, the day on which the first such proceeding was commenced.
275 Limitation of liability etc.
If:
(a) there is a failure to comply with a guarantee that applies to a supply of services under Subdivision B of Division 1 of Part 32; and
(b) the law of a State or a Territory is the proper law of the contract;
that law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services.
276 This Part not to be excluded etc. by contract
(1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying:
(a) the application of all or any of the provisions of this Part; or
(b) the exercise of a right a conferred by such a provision; or
(c) any liability of a person in relation to a failure to comply with a guarantee that applies under Division 1 of Part 32 to a supply of goods or services.
(2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Part unless the term does so expressly or is inconsistent with the provision.
(3) This section does not apply to a term of a contract that is a term referred to in section 276A(4).
276A Limitation in certain circumstances of liability of manufacturer to seller
(1) Despite section 274, if goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability under that section of the manufacturer of the goods to a person (the supplier ) who supplied the goods to a consumer is limited to a liability to pay to the supplier an amount equal to:
(a) the cost of replacing the goods; or
(b) the cost of obtaining equivalent goods; or
(c) the cost of having the goods repaired;
whichever is the lowest amount.
(2) Subsection (1) does not apply in relation to particular goods if the supplier establishes that it is not fair or reasonable for the liability of the manufacturer of the goods to be limited as mentioned in subsection (1).
(3) In determining for the purposes of subsection (2) whether or not it is fair or reasonable for the liability of a manufacturer to a supplier in relation to goods to be limited as mentioned in subsection (1), a court is to have regard to all the circumstances of the case, and in particular to the following matters:
(a) the availability of suitable alternative sources of supply of the goods;
(b) the availability of equivalent goods;
(c) whether the goods were manufactured, processed or adapted to the special order of the supplier.
(4) This section is subject to any term of a contract between the manufacturer and the supplier imposing on the manufacturer a greater liability than the liability mentioned in subsection (1).
277 Representative actions by the regulator
(1) The regulator may, by application, commence an action under this Part on behalf of one or more persons identified in the application who are entitled under this Part to take the action.
(2) The regulator may only make the application if it has obtained the written consent of the person, or each of the persons, on whose behalf the application is being made.