Who is a Consumer?
Under the Australian Consumer Law (“ACL”), any supply of goods and services to a person, including a corporation, is a supply to a consumer if:
- the amount paid or payable was not more than $100,000.00; or
- the goods or services were acquired for personal, domestic or household use or consumption;
- the goods consisted of a motor vehicle used to transport goods on public roads.[1]
Consumer Guarantees
Consumers automatically receive consumer guarantees when they buy goods and services. Consumer guarantees include, but are not limited to:
Goods
The goods must:
- be of acceptable quality;
- be fit for a particular purpose;
- match description.
Services
The services were:
- performed with due care and skill;
- for a particular purpose;
- provided within a reasonable time. [2]
Can a consumer claim against a Manufacturer or Supplier for loss and damage?
Yes. The consumer may pursue either the manufacturer of the goods[3] or the supplier of the goods.[4]
What if the Manufacturer is unknown?
Making a claim against a manufacturer of the goods can be challenging when the manufacturer is not identified. Section 147 of the ACL provides a mechanism to shift liability to the supplier, helping the consumer avoid a dead end in their recovery efforts.
The consumer will need to provide written notice from the supplier of the goods to disclose the manufacturer’s identity.[5] If the supplier fails to comply with the notice within 30 days, section 147 of the Act permits the supplier to be considered the “deemed manufacturer” of the goods.[6] This means that a claim may be brought against a supplier under the provisions of the ACL as though they had manufactured the defective product themselves.
This has significant advantages for the consumer seeking recovery:
- The consumer gains a viable recovery even where the actual manufacturer is unreachable, foreign or insolvent.
- The strict liability under the ACL applies for breach of consumer guarantees as there is no need to prove negligence, only that the product was defective and caused loss.
- A supplier who might otherwise deny liability (by claiming they were only a retailer or distributor) becomes liable if they fail, neglect and/or refuse to respond.
- The notice to suppliers may assist and encourage early settlements.
Section 147 of the Act is a valuable and often underutilised recovery tool for consumers. When a claim under the ACL is identified, it is important to place suppliers on notice as soon as possible as it allows the consumer to seek recovery against the supplier when they fail to cooperate, effectively broadening recovery options and allowing recovery proceedings to be issued promptly.
[1] Competition and Consumer Act 2010 (Cth) Sch 2 (‘Australian Consumer Law’) sections 3(1) and (2).
[2] Australian Consumer Law sections 54 to 56 and 60 to 62.
[3] Ibid 271.
[4] Ibid section 259.
[5] Ibid section 147.
[6] Ibid.
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.
