AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose, Caitlin Sheehy and Sarah Aljassim, Clayton Utz
certain qualities that they do not have, a pur - chaser or end user of the product may sue for damages on the basis that the representations are misleading. Statutory Guarantees Part 3-2 Division 1 of the Australian Consumer Law provides that a supplier of goods to a con - sumer supplies those goods subject to a num - ber of statutory guarantees. These guarantees cannot be limited or excluded by contract. They require that the goods: • correspond with their description; • are of acceptable quality; • are fit for any disclosed purpose; • conform to any sample provided or demon - stration model in quality, state or condition; and • comply with any express warranties given in relation to them. Remedies for breach of the above-mentioned consumer guarantees are provided in Part 5-4 of the Australian Consumer Law. For actions against suppliers, consumers have a number of remedies available, including in some cases the right to return the goods and demand a refund, as well as the right to recover any reasonably foreseeable losses suffered by reason of the fail - ure of the goods to comply with the guarantee. Part 5-4 also provides an extended right to sue the manufacturer of goods for damages if they breach guarantees of acceptable quality, in terms of supply of goods by description, as to repairs and spare parts or express warranties. Strict Liability Regime Part 3-5 of the Australian Consumer Law impos - es liability on manufacturers of goods with safety
defects. It is closely modelled on the European Product Liability Directive. Goods have a safety defect if their safety is “not such as persons generally are entitled to expect” . Relevant surrounding circumstances must be taken into account in making this safety inquiry. If such goods cause personal injury or damage to land, buildings or fixtures, persons who suffer loss as a result of such injury or damage may sue the manufacturer for damages. Expanded Concepts of Consumer and Manufacturer Under the Australian Consumer Law There are specific definitions of “consumer” and “consumer goods” as well as “manufacturer” in the Australian Consumer Law. “Consumer goods” or “goods acquired as a con- sumer” are goods that: • cost AUD100,000 or less, are a vehicle or trailer acquired for use principally in the transport of goods on public roads, or are otherwise goods that are of a kind ordinarily acquired for personal, domestic or household use or consumption; • were not acquired for the purposes of using them up or transforming them, in trade or commerce, in the course of a process of pro - duction or manufacture or repair or treatment of other goods or fixtures on land; and • were not acquired: (a) (for goods other than gift cards) for the purpose of resupply; or (b) (for gift cards) for the purpose of re‑sup - ply in trade or commerce. The term “manufacturer” has a deeming func - tion, and it means not only the actual manufac - turer of goods (ie, a person who grows, extracts,
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