An Act to provide certain remedies to consumers concerning the supply of goods and services; to repeal the Consumer Claims Tribunals Act 1987 and to amend certain Acts consequentially; and for other purposes.
This Act commences on a day or days to be appointed by proclamation.
2A
Objects of Act
The objects of this Act are as follows:
(a)
to provide remedies to consumers concerning the supply of goods and services,
(b)
to simplify and improve dispute resolution for parties involved in consumer disputes.
3-
Definitions
(cf Act No 206 of 1987, sec 3)
(1)
In this Act:
banker includes a building society, credit union and any other person who carries on the ordinary business of banking.
business includes:
(a)
a business not carried on for profit, and
(b)
a trade or profession.
consumer means:
(a)
a natural person, or
(b)
a firm, or
(c)
a small proprietary company, or
(d)
an owners corporation constituted under the Strata Schemes Management Act 1996, or
(e)
a company that owns an interest in land and has a memorandum or articles of association conferring on each owner of shares in the company a right to occupy under a lease or licence a part or parts of a building erected on the land, or
(f)
an incorporated association, or
(g)
an unincorporated body whose members are associated for a common purpose, or
(h)
a company limited by guarantee (not being a company limited both by shares and by guarantee),
to whom or to which a supplier has supplied or agreed to supply goods or services, whether under a contract or not, or with whom or which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services.
consumer claim—see section 3A.
Director-General means the Director-General of the Department of Fair Trading holding office as such under Part 2 of the Public Sector Management Act 1988.
firm has the same meaning as it has in the Partnership Act 1892
goods means any tangible thing that is or may be the subject of trade or commerce, but does not include money or an interest in land.
services includes any rights (including rights in relation to, and interests in, property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce and, without limiting the generality of the foregoing, includes:
(a)
the performance of work (including work of a professional nature), whether with or without the supply of goods,
(b)
the provision of gas or electricity or the provision of any other form of energy,
(c)
the provision, or the making available for use, of facilities for amusement, entertainment, recreation or instruction,
(d)
the letting of premises for vacation or recreational purposes,
(e)
the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction,
(f)
the provision of insurance cover (but not assurance cover in respect of a person’s life),
(g)
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,
(h)
the provision of credit,
but does not include rights or benefits being the supply of goods or the performance of work under a contract of employment.
supplier means a person who, in the course of carrying on, or purporting to carry on, a business, supplies goods or services.
supply:
(a)
in relation to goods, includes supply goods by way of a contract for the sale, exchange, lease, hire or hire-purchase of goods or an alleged contract for the sale, exchange, lease, hire or hire-purchase of goods, and
(b)
in relation to services, includes provide, grant or render services for valuable consideration under a contract or for valuable consideration claimed to have been agreed to under an alleged contract.
trade or commerce includes any business or professional act
Tribunal means the Consumer, Trader and Tenancy Tribunal established by the Consumer, Trader and Tenancy Tribunal Act 2001.
(2)
In this Act:
(a)
a reference to supply in relation to goods includes a reference to resupply, and
(b)
a reference to the supply of goods includes a reference to agreeing to supply goods, and
(c)
a reference to the supply of services includes a reference to agreeing to supply services, and
(d)
a reference to the supply of goods includes a reference to the supply of goods together with services, and
(e)
a reference to the supply of services includes a reference to the supply of services together with goods.
(3)
In this Act, a reference to a small proprietary company is a reference to such a company as defined in section 9 of the Corporations Act 2001 of the Commonwealth.
(4)
In this Act:
(a)
a reference to a function includes a reference to a power, authority and duty, and
(b)
a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.
3A
Meaning of “consumer claim”
(1)
For the purposes of this Act, a consumer claim is:
(a)
a claim by a consumer for the payment of a specified sum of money, or
(b)
a claim by a consumer for the supply of specified services, or
(c)
a claim by a consumer for relief from payment of a specified sum of money, or
(d)
a claim by a consumer for the delivery, return or replacement of specified goods or goods of a specified description, or
(e)
a claim by a consumer for a combination of two or more of the remedies referred to in paragraphs (a)–(d),
that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services.
(2)
For the avoidance of doubt, a reference in this Act to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.
4-
Persons presumed to be consumers
(cf Act No 206 of 1987, sec 3 (5))
For the purposes of this Act, a person who claims to be a consumer is to be presumed to be one until the contrary is proved, and in any legal proceedings (including proceedings before the Tribunal), the onus of proving that a person who claims to be a consumer is not a consumer is on the party who seeks to establish that fact.
5-
Notes
Notes included in the text of this Act do not form part of this Act.
Any consumer may apply to the Tribunal, in accordance with the regulations, for determination of a consumer claim.
7-
Jurisdiction in respect of consumer claims
(cf Act No 206 of 1987, sec 10)
(1)
General
The Tribunal has jurisdiction to hear and determine any consumer claim brought before it under this Part, whether or not the matter to which the claim relates arose before or after the commencement of this Part, except as otherwise provided by this section.
(2)
Supply or agreement made, or supply intended to be made, in New South Wales
The Tribunal has jurisdiction to hear and determine a consumer claim only if:
(a)
the goods or services to which the claim relates were supplied in New South Wales, or
(b)
a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), o
(c)
a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales).
(3)
The Tribunal has such jurisdiction whether or not:
(a)
a contract or other agreement to which the claim relates confers jurisdiction on any other court or tribunal (whether in New South Wales or elsewhere), or
(b)
the rules of private international law require a law other than the law of New South Wales to be applied to the hearing or determination of the claim.
(4)
Limitation periods
The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply:
(a)
the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged,
(b)
the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged.
(4A)
Nothing in this section affects any period of limitation under the Limitation Act 1969.
(5)
Claim relating to solicitor’s or barrister’s costs
A matter arising in relation to the fairness or reasonableness of the costs charged by a barrister or solicitor for an item of business transacted by the barrister or solicitor is not within the jurisdiction of the Tribunal if the costs can be the subject of a costs assessment under Part 3.2 of the Legal Profession Act 2004.
8-
Tribunal orders
(cf Act No 206 of 1987, sec 30)
(1)
In determining a consumer claim wholly or partly in favour of a claimant, the Tribunal may, subject to this Part, make such one or more of the following orders as it considers appropriate:
(a)
an order that requires a respondent to pay to the claimant a specified amount of money,
(b)
an order that requires a respondent to perform specified work in order to rectify a defect in goods or services to which the claim relates,
(c)
an order that requires a respondent to supply to the claimant specified services other than work,
(d)
in the case of a claim for relief from payment of money, an order declaring that a specified amount of money is not due or owing by the claimant to a respondent,
(e)
an order that requires a respondent to deliver to the claimant goods of a specified description,
(f)
an order that requires a respondent to return to the claimant specified goods which are in the possession or under the control of that respondent, whether the property in the goods has passed or not,
(g)
an order that requires a respondent to replace goods to which the claim relates,
(h)
an order that requires:
(i)
a respondent to refund all or part of the purchase price of specified goods that are in the possession or under the control of the claimant, and
(ii)
the claimant to return all or part of those goods to the respondent,
whether the property in the goods has passed or not.
(2)
In determining a consumer claim wholly or partly in favour of a respondent to the claim, the Tribunal may make such one or more of the following orders as it considers appropriate:
(a)
an order dismissing the claim or a part of the claim,
(b)
an order that requires the claimant to pay to the respondent a specified amount of money,
(c)
an order that requires the claimant to return to the respondent specified goods which are in the possession or under the control of the claimant, whether the property in the goods has passed or not.
(2A)
Without limiting subsection (1) or (2), in determining a consumer claim in which there is more than one respondent, the Tribunal may make such one or more of the following orders as it considers appropriate:
(a)
an order that requires a respondent to pay to another respondent a specified amount of money,
(b)
an order that requires a respondent to supply to another respondent specified services other than work,
(c)
an order that requires a respondent to deliver to another respondent goods of a specified description,
(d)
an order that requires a respondent (the first respondent) to return to another respondent specified goods that are in the possession or under the control of the first respondent, whether the property in the goods has passed or not.
(3)
In making an order under this section requiring a party to a consumer claim to pay a specified amount of money or to take any other specified action, the Tribunal must, unless it has good reason to the contrary, specify a period within which the money must be paid or the action must be taken.
(4)
The Tribunal may not make any of the orders referred to in this section unless the claimant’s case has been presented to the Tribunal (whether or not in person) following the making of the relevant application under section 6.
(5)
Nothing in subsection (4) prevents the Tribunal from dismissing or adjourning proceedings under section 28 (5) of the Consumer, Trader and Tenancy Tribunal Act 2001.
9-
Conditional orders
(cf Act No 206 of 1987, sec 30 (6))
The Tribunal may impose such conditions on an order under this Part as it considers appropriate.
10-
Interim and ancillary orders
(cf Act No 206 of 1987, sec 30 (4) and (5))
(1)
In the course of hearing a consumer claim, the Tribunal may make any interim order that appears to the Tribunal desirable to be made pending final determination of the claim.
(2)
When making an order for the determination of a consumer claim, the Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling the order to have full effect.
11-
Suspension of orders
(cf Act No 206 of 1987, sec 30 (7))
(1)
If the Tribunal has made an order under this Part which has not yet ceased to have effect, the Tribunal may, on the application of the person against whom or in whose favour the order was made or of its own motion, make a further order suspending the operation of the first-mentioned order:
(a)
for such reasons and for such period, or
(b)
until the happening of such event or the fulfilment of such condition,
as the Tribunal specifies in the further order
(2)
Nothing in this section limits the operation of section 43 (2) of the Interpretation Act 1987.
12-
Joint liability
(cf Act No 206 of 1987, sec 30 (8))
Section 95 of the Civil Procedure Act 2005 applies to and in respect of an order of the Tribunal under this Part as if such an order were a judgment of the Supreme Court.
13-
Matters to be taken into account by Tribunal when making orders under this Part
(cf Act No 206 of 1987, sec 31)
(1)
When making an order or orders under this Part, the Tribunal must make such orders as, in its opinion, will be fair and equitable to all the parties to the claim
(2)
Without limiting subsection (1), when the Tribunal is considering whether or not to make an order or orders under this Part, the following factors are relevant, so far as they are material to the particular circumstances of the case:
(a)
whether or not there was any material inequality in bargaining power between the parties to the claim,
(b)
whether or not:
(i)
any party to the claim was not reasonably able to protect the party’s interest, or
(ii)
any person who represented any of the parties to the claim was not reasonably able to protect the interests of any party represented by that person,
because of the age or physical or mental capacity of that party or person,
(c)
the relative economic circumstances, educational background and literacy of:
(i)
the parties to the claim, and
(ii)
any person who represented any of those parties,
(d)
whether or not and when independent legal or other expert advice was obtained by the claimant,
(e)
whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the claimant:
(i)
by any other party to the claim, or
(ii)
by any person acting or appearing or purporting to act for or on behalf of any other party to the claim, or
(iii)
by any person to the knowledge of any other party to the claim or of any person acting or appearing or purporting to act for or on behalf of any other party to the claim,
(f)
the conduct of the parties to the claim in relation to similar transactions to which any of them has been a party,
(g)
where the subject of the claim is a contract for the supply of goods or services or a contract collateral to such a contract:
(i)
whether or not before or at the time when the contract was made its provisions were the subject of negotiation, and
(ii)
whether or not it was reasonably practicable for the claimant to negotiate for the alteration of or to reject any of the provisions of the contract, and
(iii)
whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the claim, and
(iv)
if the contract is wholly or partly in writing, the physical form of the contract and the intelligibility of the language in which it is expressed, and
(v)
the extent (if any) to which the provisions of the contract and their legal effect were accurately explained by any person to the claimant and whether or not the claimant understood the provisions and their effect, and
(vi)
the commercial or other setting, purpose and effect of the contract.
(3)
Without limiting subsection (1), when the Tribunal is considering whether or not to make an order or orders under section 8, it is appropriate for the Tribunal to take into account, so far as material to the particular circumstances of the case:
(a)
any code of practice for fair dealing prescribed under Part 7 of the Fair Trading Act 1987, and
(b)
where the Director-General has brought to the attention of the Tribunal any other code of practice, whether or not prescribed by or under any other Act—that code of practice.
