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1. Consumer Claims Act 1998 (NSW)

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.

Part 1 Preliminary

1.   Name of Act

This Act is the Consumer Claims Act 1998.

2.   Commencement

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 activity.

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.