Changes to the Australian Consumer Laws - Part 3 - Limitation of Liability

Business Law: 23 March 2019

A number of changes have been made to the Trade Practices Act 1974 (Cth) (TPA) as Australian Consumer Law (ACL) reforms have been progressively implemented, with the final portion commencing on 1 January 2011. In addition to these changes the TPA has been renamed the Competition and Consumer Act 2010 (Cth) (CCA).This is the thirdin a series of blogs summarising the changes and the implications for businesses operating in Australia.

Limitation of Liability

A supplier will not only be restricted in its ability to exclude or limit liability for matters which were previously covered by the implied terms under the TPA. It will also now be restricted in its ability to exclude or limit liability for any additional express warranties which it may otherwise make (or be deemed to have made) in relation to goods being supplied. However, s64ACL(previously s68TPA) states that a term of a contract for the supply of goods or services is not void merely because the term limits the supplier's liability for failure to comply with a guarantee (other than a guarantee under s51, 52 or 53 ACL) to one of the following:

• the replacement of the goods or the supply of equivalent goods;
• the repair of the goods;
• the payment of the cost of replacing the goods or of acquiring equivalent goods;
• the payment of the cost of having the goods repaired;
• the supplying of the services again; or
• the payment of the cost of having the services supplied again.

This will not apply where the person to whom the goods or services were supplied establishes that it is not fair and reasonable for the person who supplied the goods to rely on that term of the contract.With Max Ezerins