The Act came into force on 1 April 1994 and does not apply to any contract for the supply of goods or services made before this date (Section 56). It is a significant piece of legislation and is aimed at imposing guarantees in contracts for the supply of goods and the performance of services for the consumers benefit. It provides a right of redress against suppliers and manufacturers in respect of any failure of the goods or services to comply with the guarantees.
Certain terms are defined in the Act itself (Section 2). These definitions are important in determining in what circumstances the Act will or will not apply. The Act defines “Goods”, “Service”, “Supplier”, “Manufacturer”, “trade”, and other terms. The key definition in the Act is “Consumer”. This is defined to mean a person who:- (a) Acquires from a supplier goods or services of a kind ordinarily acquired for personal, domestic, or household use or consumption; and (b) Does not acquire the goods or services, or hold himself or herself out as acquiring the goods or services, for the purpose of:- (i) Re-supplying them in trade; or
(ii) Consuming them in the course of a process of production or manufacture; or (iii) In the case of goods, repairing or treating in trade other goods or fixtures on land.”
The definition of “Consumer” is unusual and difficult. The focus is the ordinary use for which goods or services are acquired rather than the use intended by the acquiring purchaser. By way of example a contract for the supply of crockery to a company that owns a restaurant will be a contract of supply of goods subject to the Act because although intended for commercial use, crockery is ordinarily acquired for personal, domestic or household use and consumption.
As far as the services supplied by travel agents are concerned it would be best to proceed on the basis that virtually all of the services will be viewed as a kind ordinarily acquired for personal or domestic use or consumption with the consequence that the Act will apply to those services.
The Act establishes one set of guarantees which apply in relation to the supply of goods and a different set of guarantees which apply in relation to the supply of services. This summary deals only with the guarantees which the Act imposes in relation to the supply of services. TAANZ also has a summary of the guarantees which are imposed by the Act in relation to the supply of goods and if a member has a problem involving the guarantees applicable to supply of goods the member can obtain a copy of that summary by contacting the TAANZ office.
Guarantees in Respect of the Supply of Services
Where services are supplied to a consumer there are four guarantees provided by Part IV of the Act. These are:-
(i) Guarantee as to Reasonable Care and Skill (Section 28). A guarantee that services will be carried out with reasonable skill and care. This guarantee restates in statutory form the existing common law obligations on Travel Agents to exercise the skill and care of a reasonable competent professional travel agent in performing their services. The guarantee does not extend the existing legal obligations of a travel agent to act with reasonable skill and care in the performance of their function on behalf of their customers. Travel Agents had these obligations before the Act was passed.
(ii) Guarantee as to Fitness for Particular Purpose (Section 29) A guarantee that the service, and any product resulting from...