Gilbert + tobin - Gilbert and Tobin

Services
Due care and skill: guarantee that the services will be rendered
with due care and skill
Fitness for purpose: guarantee that the services will be fit for
their intended purpose or result (except where unreasonable
or no reliance on the skill or judgment of the supplier)
Reasonable time for supply: guarantee that the services will be
provided in a reasonable time (except where the time of
performance is stated in the contract or to be determined)
The guarantees imposed under the new regime cannot be
excluded, restricted or modified. However, where the goods are
less than $40,000 and are not goods for domestic use, a supplier
may limit its liability under the guarantees to: the replacement of
the goods or the supply of equivalent goods; the repair of the
goods; or the payment of the costs of doing those things (unless it is
not fair or reasonable to do so).
As noted above, the ACL includes a guarantee that a supplier will
comply with any “express warranty”. This guarantee is far-reaching
and it is worth noting that it:
+ + applies to suppliers as well as manufacturers;
+ + is not limited to provisions stated to be “warranties”, and could
include pre-contractual representations and product
descriptions or specifications; and
+ + most notably, will override any exclusive remedy provisions
applicable to existing warranties, or exclusions or limitations of
liability (given that a supplier cannot exclude, restrict or modify
the guarantee except where permitted under the ACL).
Rather than a consumer seeking a remedy by bringing an action for
breach of condition or warranty under normal contractual
principles, the ACL provides specific remedies to consumers
depending on the severity of a supplier’s failure to comply with a
guarantee. In certain circumstances, this includes the right to reject
the goods and request a refund or replacement goods.
The ACL prohibits the making of false or misleading
representations concerning the existence, exclusion or effect of
any condition, warranty, guarantee, right or remedy that may be
available to a consumer under the ACL. This might include
exclusions and limitations of liability which do not acknowledge the
existence of statutory entitlements such as the ACL.
The consumer guarantees apply to conduct “in trade or
commerce”. This is defined as trade or commerce within Australia
or trade or commerce between Australia and places outside
Australia.
11.5 Warranties against defects
Many suppliers and manufacturers choose to offer voluntary
warranties in relation to their goods or services. The ACL
regulates these as “warranties against defects”, and prescribes
certain requirements regarding their form and content. For
example, any such warranties must be in a document that it is
transparent, sets out the procedures for the consumer to claim
the warranty, includes a prescribed form of words and includes
other specified details. Additionally, because the ACL requires
that the document complying with these requirements is provided
at the same time as the warranty, it is not sufficient to simply
provide details of a website or telephone number that consumers
can visit or call to obtain the necessary information.
11.6 Unsolicited consumer agreements
The ACL also includes a regime governing unsolicited consumer
agreements (i.e. door-to-door and telemarketing sales), imposing
various obligations for the benefit of consumers.
An agreement is an unsolicited consumer agreement if:
+ + it is for the supply, in trade or commerce, of goods or services
to a consumer;
+ + it is made as a result of negotiations between a dealer (not
necessarily a supplier) and a consumer either in person (not at
the supplier’s premises) or by telephone;
+ + the consumer did not instigate the negotiations for the supply;
and
+ + the total price is over $100 or cannot be determined at the
time of the agreement.
Where the negotiations for the supply of goods or services take
place in person, the ACL imposes various conditions with respect
to such negotiations, including: the permitted hours when a dealer
may call on the consumer; the obligation to notify the consumer of
their identity and the purpose of negotiations; the obligation to
leave on request and not contact the consumer for at least 30 days;
and the obligation to notify the consumer of their right to
terminate and how to do so.
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