The Law Handbook 2024

Chapter 7.3: Consumer guarantees 709 judgment of the supplier and the consumer actually relied on the skill and judgment of the supplier. Services must be provided within a reasonable time Suppliers guarantee that services will be provided within a reasonable time, where the time period is not fixed or agreed upon (s 62 ACL). Whether a time period is ‘reasonable’ depends on the nature of the services and may be affected by external factors (e.g. the weather and availability of parts). Statutory warranties: Financial services The ASIC Act implies two non-excludable statutory warranties into a contract between a supplier of financial services to a consumer, namely: • the services will be rendered with due care and skill; and • the services, and any materials supplied with those services, will be reasonably fit for purpose (s 12ED ASIC Act). Remedies A range of remedies If goods or services fail to comply with a consumer guarantee under the ACL, the consumer has the right to remedies, which include: • refund; • repair; • replacement or exchange; • compensation; • cancellation of the contract. The particular remedies available to a consumer depend on whether the failure to comply with the guarantee is a major failure or a minor failure. A consumer may seek a remedy from the supplier, themanufacturer or both, depending on the particular guarantee. Where a foreign manufacturer does not have a place of business in Australia, a consumer can take action against the importer instead. The remedies under the ACL exist in addition to remedies in any contract, and any warranty provided by the supplier or manufacturer. NOTE: REMEDIES Working out which consumer law remedies are available to you can be difficult, particularly with complex products (e.g. cars). You can report a consumer issue to the ACCC on its ‘Report a Consumer Issue’ page and it may be able to answer any questions or provide information. It’s a good idea to speak to a lawyer about your particular case. Remedies against suppliers of goods for a major or minor failure A consumer can take action against a supplier if the goods fail to comply with a consumer guarantee (s 259 ACL), other than the guarantees relating to repairs and spare parts (which only apply to manufacturers). Which remedies are available depend on whether the failure can be remedied and whether the failure to comply with a guarantee is a ‘major failure’ (s 260). Major failures The failure to comply with a consumer guarantee is a major failure if: • the goods would not have been bought by a reasonable consumer who was fully acquainted with the nature and extent of the failure at the time of purchase; • the goods are significantly different from their description, sample or demonstration model; • the goods are substantially unfit for their normal purpose and cannot easily be made fit within a reasonable time; • the goods are substantially unfit for the purpose disclosed to the supplier (or their agent) before purchase and cannot easily be made fit within a reasonable time; or • the goods are not of acceptable quality because they are unsafe (s 260 ACL). In short, a major failure is a problem with the goods that cannot be fixed or is very difficult to fix. If there is a major failure with goods, a consumer has two choices: • If there is a major failure with the goods, a consumer can reject the goods and choose a refund or replacement (subject to s 262 ACL). The seller must give the consumer a refund and