Australian Capital Territory

law reform (manufacturers 
warranties) act 1977
This consolidation has been prepared by the ACT Parliamentary Counsel’s Office
Reprinted as at 31 March 1999
TABLE OF PROVISIONS
Section
	1.	Short title
	2.	Commencement
	3.	Interpretation
	4.	Statutory warranties
	5.	Right of consumer to sue manufacturer
	6.	Application to sales by manufacturer
	7.	No contracting out
	8.	Rights of seller to recover against manufacturer
	9.	Evidentiary provisions
	10.	Regulations

An Act relating to manufacturers warranties
1. 	Short title
	This Act may be cited as the Law Reform (Manufacturers Warranties) Act 1977.1

2. 	Commencement
	This Act shall come into operation on such date as is fixed by the Minister by notice published in the Gazette.1
3. 	Interpretation
(1) 	In this Act, unless the contrary intention appears—
“express warranty” means an undertaking, assertion or statement in relation to manufactured goods (including an undertaking, assertion or statement in an advertisement or in a brochure or other literature designed to promote sale or use of the goods) by the manufacturer or a person acting on his or her behalf, the natural tendency of which is to induce a reasonable purchaser to purchase the goods;
“goods” includes all chattels personal, other than things in action and money;
“manufactured goods” means goods manufactured for sale or disposal to consumers;
“manufacturer”, in relation to manufactured goods, means—
	(a)	a person by whom, or on whose behalf, the goods are manufactured or assembled;
	(b)	a person who holds himself or herself out to the public as the manufacturer of the goods;
	(c)	a person, who causes or permits his or her name, the name in which he or she carries on business, or his or her brand, to be attached to or endorsed on the goods or on any package or other material accompanying the goods in a manner or form that leads reasonably to the inference that he or she is the manufacturer of the goods; or
	(d)	where the goods are imported into Australia and the manufacturer does not have a place of business in Australia—the importer of the goods;
“person” includes a body corporate;
“purchase” includes take on hire, other than for a period not exceeding 6 months, whether or not the hiring is accompanied by an option to purchase, and hire-purchase;
“sell” includes let out on hire, other than for a period not exceeding 6 months, whether or not the hiring is accompanied by an option to purchase, and hire-purchase;
“seller”, in relation to manufactured goods, means any person who sells the goods to a consumer;
“statutory warranty” means a warranty that arises by virtue of this Act.
(2) 	This Act—
	(a)	applies to goods that are manufactured either within or outside the Territory;
	(b)	does not apply to or in relation to goods that are manufactured before the date fixed under section 2; and
	(c)	subject to section 6, does not apply to or in relation to manufactured goods that are sold directly by the manufacturer to the consumer.
(3) 	For the purposes of this Act—
	(a)	a person who purchases goods shall be taken to be a consumer of the goods if the goods are of a kind ordinarily purchased for private use or consumption and the person does not purchase the goods, or hold himself or herself out as purchasing the goods, for the purposes of resale; and
	(b)	a reference to a consumer, in relation to manufactured goods, includes a reference to any person who derives title to the goods through or under the consumer.
(4) 	A reference in the definition of “express warranty” to manufactured goods is a reference to manufactured goods that—
	(a)	are sold in the Territory to a consumer; or
	(b)	are delivered, after being sold to a consumer, to that consumer in the Territory.
(5) 	For the purposes of this Act, goods shall be taken to be sold to a consumer notwithstanding that, at the time of sale, they are affixed to land or premises.
4. 	Statutory warranties
(1) 	Subject to this section, where manufactured goods—
	(a)	are sold in the Territory to a consumer; or
	(b)	are delivered, after being sold to a consumer, to that consumer in the Territory;
the manufacturer warrants—
	(c)	that the goods are of merchantable quality;
	(d)	where the consumer expressly makes known to the manufacturer, directly or through the seller, the particular purpose for which the goods are being purchased—that the goods are reasonably fit for that purpose, whether or not that is a purpose for which the goods are commonly sold, except where the circumstances show that the consumer does not rely, or that it is unreasonable for him or her to rely, on the skill or judgment of the manufacturer;
	(e)	where there is a term in the contract, expressed or implied, between the seller and the consumer to the effect that the goods are sold by reference to a sample—
	(i)	that the bulk will correspond with the sample in quality; and
	(ii)	that the goods will be free from any defect, rendering them unmerchantable, that would not be apparent on reasonable examination of the sample;
	(f)	where the goods are sold by description—that the goods will correspond with the description and, if the sale is by reference to a sample as well as by description, that the bulk of the goods will correspond with the sample and that the goods will correspond with the description; and
	(g)	where the goods are of a kind that is likely to require repair or maintenance—that spare parts and service facilities will be available for a reasonable period after the date of manufacture.
(2) 	Subject to subsection (3), goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are ordinarily purchased as it is reasonable to expect, having regard to—
	(a)	any description applied to the goods by the manufacturer;
	(b)	the price received by the manufacturer for the goods (if relevant); and
	(c)	all the other relevant circumstances.
(3) 	A manufacturer of goods is not liable upon his or her statutory warranty as to the merchantable quality of the goods—
	(a)	if the goods are not of merchantable quality by reason of—
	(i)	an act or default of the consumer or some other person (not being the manufacturer or his or her servant or agent); or
	(ii)	a cause independent of human control;
occurring after the goods have left the control of the manufacturer;
	(b)	as regards defects specifically drawn to the consumer’s attention before the contract for the sale of the goods is made; or
	(c)	where the consumer examines the goods before the contract for the sale of the goods is made—as regards defects which that examination ought to reveal.
(4) 	A manufacturer of goods is not liable upon his or her statutory warranty as to the availability of spare parts if the unavailability arose from circumstances that the manufacturer could not reasonably be expected to have foreseen.
(5) 	Without limiting the generality of subsection (4), an industrial stoppage may, for the purposes of that subsection, constitute a circumstance that a manufacturer could not reasonably be expected to have foreseen.
(6) 	A manufacturer of goods is not liable upon his or her statutory warranty relating to the sale of goods by description in respect of a description applied to the goods by a person other than the manufacturer.
(7) 	A manufacturer of goods is not liable upon his or her statutory warranty relating to the sale of goods by sample where—
	(a)	the sample was not supplied by the manufacturer;
	(b)	the sale by sample is made without the express or implied concurrence of the manufacturer; or
	(c)	the failure to comply with the warranty is due to circumstances that were beyond the control of the manufacturer and that he or she could not reasonably be expected to have foreseen.
5. 	Right of consumer to sue manufacturer
(1) 	Where an express warranty or a statutory warranty is not complied with in relation to manufactured goods, a consumer may, by action, recover against the manufacturer damages for breach of warranty in all respects as if the action were for breach of warranty under a contract between the manufacturer and the consumer.
(2) 	The right conferred by this section is in addition to, and not in derogation of, any other right of action that may be available to the consumer, whether against the manufacturer or otherwise.
6. 	Application to sales by manufacturer
	The provisions of this Act with respect to—
	(a)	express warranties; and
	(b)	the warranties relating to the availability of spare parts and service facilities;
apply to and in relation to manufactured goods that are sold directly by the manufacturer to the consumer.
7. 	No contracting out
(1) 	Subject to subsection (2), it is not competent for a manufacturer to exclude or limit his or her liability to a consumer, or to limit the consumer’s right of action, or for a consumer to waive his or her rights, arising by virtue of an express or statutory warranty.
(2) 	Where a manufacturer takes reasonable steps to ensure that a consumer purchasing manufactured goods will effectively receive notice at the time the goods are purchased that the manufacturer does not undertake—
	(a)	that spare parts, or spare parts of the kind specified in the notice; or
	(b)	that service facilities, or service facilities of the kind specified in the notice;
will be available for the repair of the goods, either at all or after the expiration of the period specified in the notice, the manufacturer is not subject to any liability by reason only that—
	(c)	the spare parts, or spare parts of the kind specified in the notice; or
	(d)	the service facilities, or service facilities of the kind specified in the notice.
as the case requires, are not available.
(3) 	Where—
	(a)	a manufacturer manufactures goods for a person in accordance with specifications determined by that person; and
	(b)	the manufacturer incurs liability to a consumer by virtue of having manufactured the goods in accordance with those specifications;
the manufacturer is entitled to recover from that person compensation in respect of so much of his or her liability as arises by reason only of his or her having manufactured the goods in accordance with those specifications.
(4) 	A manufacturer who purports to exclude or limit a liability, or a right, under an express or statutory warranty that he or she is not competent to exclude or limit by reason of this section is guilty of an offence against this Act and punishable, on conviction, by a fine—
	(a)	if the offender is a natural person—not exceeding 200 penalty units; or
	(b)	if the offender is a body corporate—not exceeding 1,000 penalty units.
8. 	Rights of seller to recover against manufacturer
	Where a seller of manufactured goods incurs liability to a consumer for breach of a condition or  warranty implied by law, the seller may, by action against the manufacturer, recover an amount sufficient to indemnify him or her for that liability if the consumer could, by virtue of a statutory warranty, have recovered against the manufacturer damages in respect of that breach.
9. 	Evidentiary provisions
(1) 	Where an advertisement or other publication is published containing an assertion that would, if made by a manufacturer or a person acting on his or her behalf, constitute an express warranty in respect of manufactured goods, it shall be presumed, in proceedings under this Act other than proceedings under subsection 7 (4), that the assertion was made by the manufacturer or a person acting on his or her behalf unless the manufacturer proves that he or she did not cause or permit the publication of the advertisement or other publication.
(2) 	Where, in proceedings under this Act, other than proceedings under subsection 7 (4), a question arises whether goods were manufactured before or after the date fixed under section 2, it shall be presumed, unless the contrary is established, that the goods were manufactured after that date.
(3) 	Where the name, business name or brand of a person is attached to or endorsed on goods, or a package or other material in or with which the goods are sold, and the name or brand appears in a manner or form that leads reasonably to the inference that that person is the manufacturer of the goods, it shall be presumed, in proceedings under this Act, other than proceedings under subsection 7 (4), unless the contrary is established, that the person has caused or permitted the name, business name or brand to be attached to or endorsed on the goods, package or material in that manner or form.
10. 	Regulations
	The Executive may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, prescribing—
	(a)	the form of written warranty given by a manufacturer;
	(b)	the manner in which a written warranty is to be printed; and
	(c)	penalties not exceeding—
	(i)	if the offender is a natural person—10 penalty units; or
	(ii)	if the offender is a body corporate—50 penalty units;
for offences against the regulations.

NOTES
1.	The Law Reform (Manufacturers Warranties) Act 1977 in this reprint is Act No. 12, 1977 amended as indicated in the Tables below.
2.	The Legislation (Republication) Act 1996 (No. 51, 1996) authorises the Parliamentary Counsel in preparing a law for republication, to make certain editorial and other formal amendments in accordance with current legislative drafting practice.  The amendments do not change the law.  Amendments made under the Act do not appear in the Table of Amendments but details may be obtained on request from the Parliamentary Counsel’s Office.
Table 1
Table of Ordinances
Ordinance	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	

Law Reform (Manufacturers Warranties) Ordinance 1977	12, 1977	30 May 1977	6 June 1977 (see Gazette 1977, No. S95)		
Ordinances Revision Ordinance 1978	46, 1978	28 Dec 1978	28 Dec 1978	—	
Self-Government (Consequential Amendments) Ordinance 1989	38, 1989	10 May 1989	Ss. 1 and 2:  10 May 1989
Remainder:  11 May 1989 (see s. 2 (2) and Gazette 1989, No. S164)
	—	
Self-Government day 11 May 1989
Table 2
Table of Acts
Act	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	
(Reprinted as at 31 July 1991)	
Statute Law Revision (Penalties) Act 1994
	81, 1994	29 Nov 1994	Ss. 1 and 2:  29 Nov 1994
Remainder:  29 Nov 1994 (see Gazette 1994, No. S269, p. 2)	—	
Statute Law Revision (Penalties) Act 1998	54, 1998	27 Nov 1998	Ss. 1 and 2:  27 Nov 1998
Remainder:  9 Dec 1998 (see Gazette 1998, No. 49, p. 1078)
	—	

Table of Amendments
ad. = added or inserted      am. = amended     rep. = repealed      rs. = repealed and substituted

Provision	How affected

S. 7	am. No. 46, 1978; Act No. 81, 1994
S. 10	am. No. 38, 1989; Act No. 54, 1998