In this Act, unless the context otherwise requires,—
Acquire,—
(a)
In relation to goods, means obtain by way of gift, purchase, or exchange; and also means take on lease, hire, or hire purchase:
(b)
In relation to services, includes accept:
Business means—
(a)
Any undertaking whether carried on for gain or reward or not; or
(b)
Any undertaking in the course of which—
(i)
Goods or services are acquired or supplied; or
(ii)
Any interest in land is acquired or disposed of—
whether free of charge or not:
Consumer means 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)
Resupplying 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:
Express guarantee, in relation to any goods, means an undertaking, assertion, or representation in relation to—
(a)
The quality, performance, or characteristics of the goods; or
(b)
The provision of services that are or may at any time be required in respect of the goods; or
(c)
The supply of parts that are or may at any time be required for the goods; or
(d)
The future availability of identical goods, or of goods constituting or forming part of a set of which the goods in relation to which the undertaking, assertion, or representation is given or made form part—
given or made in connection with the supply of the goods or in connection with the promotion by any means of the supply or use of the goods
goods—
(a)
means personal property of every kind (whether tangible or intangible), other than money and choses in action; and
(b)
includes—
(i)
goods attached to, or incorporated in, any real or personal property:
(ii)
ships, aircraft, and vehicles:
(iii)
animals, including fish:
(iv)
minerals, trees, and crops, whether on, under, or attached to land or not:
(v)
gas and electricity:
(vi)
to avoid doubt, water and computer software; but
(c)
despite paragraph (b)(i), does not include a whole building, or part of a whole building, attached to land unless the building is a structure that is easily removable and is not designed for residential accommodation
goods: this definition was substituted, as from 8 July 2003, by section 3 Consumer Guarantees Amendment Act 2003 (2003 No 33).
Manufacturer means a person that carries on the business of assembling, producing, or processing goods, and includes—
(a)
Any person that holds itself out to the public as the manufacturer of the goods:
(b)
Any person that attaches its brand or mark or causes or permits its brand or mark to be attached, to the goods:
(c)
Where goods are manufactured outside New Zealand and the foreign manufacturer of the goods does not have an ordinary place of business in New Zealand, a person that imports or distributes those goods:
Ordinary place of business in New Zealand, in relation to a manufacturer, does not include a New Zealand subsidiary of a foreign manufacturer
Ownership, in relation to goods, means the general property in the goods
Person includes a local authority, every public body, and any association of persons whether incorporated or not
Price includes valuable consideration in any form
Security includes charge and encumbrance
Service
[Repealed]
Service: this definition was repealed, as from 8 July 2003, by section 3 Consumer Guarantees Amendment Act 2003 (2003 No 33).
services—
(a)
includes any rights (including rights in relation to, and interests in, personal property), benefits, privileges, or facilities that are, or are to be, provided, granted, or conferred by a supplier; and
(b)
includes (without limitation) the rights, benefits, privileges, or facilities that are, or are to be, provided, granted, or conferred by a supplier under any of the following classes of contract:
(i)
a contract for, or in relation to, the performance of work (including work of a professional nature), whether with or without the supply of goods:
(ii)
a contract for, or in relation to, the provision in trade of facilities for accommodation, amusement, the care of persons or animals or things, entertainment, instruction, parking, or recreation:
(iii)
a contract of insurance, including life assurance and life reassurance:
(iv)
a contract between a bank and a customer of the bank:
(v)
a contract for, or in relation to, the lending of money or granting of credit, or the making of arrangements for the lending of money or granting of credit, or the buying or discounting of a credit instrument, or the acceptance of deposits:
(vi)
a contract for, or in relation to, the supply of electricity, gas, telecommunications, or water, or the removal of waste water; but
(c)
does not include—
(i)
any rights, benefits, privileges, or facilities that are, or are to be, provided, granted, or conferred by a supplier by simply paying or crediting any money to the consumer without the performance of any other task (other than one that is merely incidental to the making of the payment or credit); and
(ii)
rights or benefits in the form of the supply of goods or the performance of work under a contract of service
services: this definition was inserted, as from 8 July 2003, by section 3 Consumer Guarantees Amendment Act 2003 (2003 No 33).
Subsidiary has the same meaning as in sections 5 and 6 of the Companies Act 1993
Subsidiary: this definition was substituted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
supplier—
(a)
means a person who, in trade,—
(i)
supplies goods to a consumer by—
(A)
transferring the ownership or the possession of the goods under a contract of sale, exchange, lease, hire, or hire purchase to which that person is a party; or
(B)
transferring the ownership of the goods as the result of a gift from that person; or
(C)
transferring the ownership or possession of the goods as directed by an insurer; or
(ii)
supplies services to an individual consumer or a group of consumers (whether or not the consumer is a party, or the consumers are parties, to a contract with the person); and
(b)
includes,—
(i)
where the rights of the supplier have been transferred by assignment or by operation of law, the person for the time being entitled to those rights:
(ii)
a creditor within the meaning of the Credit Contracts and Consumer Finance Act 2003 who has lent money on the security of goods supplied to a consumer, if the whole or part of the price of the goods is to be paid out of the proceeds of the loan and if the loan was arranged by a person who, in trade, supplied the goods:
(iii)
a person who, in trade, assigns or procures the assignment of goods to a creditor within the meaning of the Credit Contracts and Consumer Finance Act 2003 to enable the creditor to supply those goods, or goods of that kind, to the consumer:
(iv)
a person who, in trade, is acting as an agent for another, whether or not that other is supplying in trade; and
(c)
for the avoidance of doubt in the following circumstances, means only,—
(i)
in the case of a supply of electricity as a good, the retailer of the electricity with whom the consumer has a contract; and
(ii)
in the case of a supply of electricity line function services, the distributor who owns or operates the line that is connected to the consumer's premises; and
(iii)
in the case of other services relating to electricity, the person who provides that service to the consumer.
supplier: this definition was substituted, as from 8 July 2003, by section 3 Consumer Guarantees Amendment Act 2003 (2003 No 33).
supplier: paragraph (b)(ii) and (iii) of this definition was substituted, as from 1 April 2005, by section 139 Credit Contracts and Consumer Finance Act 2003 (2003 No 52). See sections 141 to 143 of that Act as to the transitional provisions.
Supply,—
(a)
In relation to goods, means supply (or resupply) by way of gift, sale, exchange, lease, hire, or hire purchase; and
(b)
In relation to services, means provide, grant, or confer:
Trade means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply or acquisition of goods or services.
(2)
In any case where it is necessary under this Act to determine the time at which a guarantee in this Act commences to apply,—
(a)
Goods shall be treated as supplied at the time when the consumer acquires the right to possess the goods:
(b)
Services shall be treated as supplied at the time when they are provided, granted, or conferred.
Compare: 1971 No 147 s 2; 1986 No 121 s 2; Trade Practices Act 1974, ss 4B, 74A(1), (3), (4) (Australia); Consumer Products Warranties Act 1977, s 2(h) (Saskatchewan)
The rights and remedies provided in this Act are in addition to any other right or remedy under any other Act or rule of law unless the right or remedy is expressly or impliedly repealed or modified by this Act.
(2)
No provision of this Act shall be construed as repealing, invalidating, or superseding the provisions of any other Act unless this Act by express provision or by necessary implication clearly intends such a provision to be so construed.
Compare: Consumer Products Warranties Act 1977, s 3 (Saskatchewan)
Part 1
Guarantees in respect of supply of goods
5-
Guarantees as to title
(1)
Subject to section 41 of this Act, the following guarantees apply where goods are supplied to a consumer:
(a)
That the supplier has a right to sell the goods; and
(b)
That the goods are free from any undisclosed security; and
(c)
That the consumer has the right to undisturbed possession of the goods, except in so far as that right is varied pursuant to—
(i)
A term of the agreement for supply in any case where that agreement is a hire purchase agreement within the meaning of the Income Tax Act 2007; or
(ii)
A security, or a term of the agreement for supply, in respect of which the consumer has received—
(A)
Oral advice, acknowledged in writing by the consumer, as to the way in which the consumer's right to undisturbed possession of the goods could be affected, sufficient to enable a reasonable consumer to understand the general nature and effect of the variation; and
(B)
A written copy of the agreement for supply or security, or a written copy of the part thereof which provides for the variation.
(2)
A reference in subsection (1)(a) of this section to a right to sell goods means a right to dispose of the ownership of the goods to the consumer at the time when that ownership is to pass.
(3)
An undisclosed security referred to in this section means any security that was neither disclosed to the consumer in writing before he or she agreed to the supply nor created by or with the express consent of the consumer.
(4)
Nothing in subsection (1)(a) or (1)(b) of this section shall apply in any case where the goods are only hired or leased.
(5)
Where the goods are only hired or leased, the guarantee set out in subsection (1)(c) of this section shall confer a right to undisturbed possession of the goods only for the period of the hire or lease.
(6)
Part 2 of this Act gives the consumer a right of redress against the supplier where the goods fail to comply with any guarantee in this section.
Compare: 1908 No 168 s 14; 1971 No 147 s 11
Section 5(1)(c)(i): amended, on 1 April 2008, by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).
Subsection (1)(c)(i) was amended, as from 1 April 2005, by section 139 Credit Contracts and Consumer Finance Act 2003 (2003 No 52) by substituting the words “Income Tax Act 1994” for the words “Hire Purchase Act 1971”. See sections 141 to 143 of that Act as to the transitional provisions.
Subsection (1)(c)(i) was amended, as from 1 April 2005, by section YA 2 Income Tax Act 2004 (2004 No 35) by substituting the words “Income Tax Act 2004” for the words “Income Tax Act 1994”.
6-
Guarantee as to acceptable quality
(1)
Subject to section 41 of this Act, where goods are supplied to a consumer there is a guarantee that the goods are of acceptable quality.
(2)
Where the goods fail to comply with the guarantee in this section,—
(a)
Part 2 of this Act may give the consumer a right of redress against the supplier; and
(b)
Part 3 of this Act may give the consumer a right of redress against the manufacturer.
Compare: 1908 No 168 s 16(b); 1971 No 147 s 12; Consumer Products Warranties Act 1977, s 11(4), 11(7) (Saskatchewan)
For the purposes of section 6 of this Act, goods are of acceptable quality if they are as—
(a)
Fit for all the purposes for which goods of the type in question are commonly supplied; and
(b)
Acceptable in appearance and finish; and
(c)
Free from minor defects; and
(d)
Safe; and
(e)
Durable,—
as a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to—
(f)
The nature of the goods:
(g)
The price (where relevant):
(h)
Any statements made about the goods on any packaging or label on the goods:
(i)
Any representation made about the goods by the supplier or the manufacturer:
(j)
All other relevant circumstances of the supply of the goods.
(2)
Where any defects in goods have been specifically drawn to the consumer's attention before he or she agreed to the supply, then notwithstanding that a reasonable consumer may not have regarded the goods as acceptable with those defects, the goods will not fail to comply with the guarantee as to acceptable quality by reason only of those defects.
(3)
Where goods are displayed for sale or hire, the defects that are to be treated as having been specifically drawn to the consumer's attention for the purposes of subsection (2) of this section are those disclosed on a written notice displayed with the goods.
(4)
Goods will not fail to comply with the guarantee of acceptable quality if—
(a)
The goods have been used in a manner, or to an extent which is inconsistent with the manner or extent of use that a reasonable consumer would expect to obtain from the goods; and
(b)
The goods would have complied with the guarantee of acceptable quality if they had not been used in that manner or to that extent.
(5)
A reference in subsections (2) and (3) of this section to a defect means any failure of the goods to comply with the guarantee of acceptable quality.
Compare: Consumer Products Warranties Act 1977, ss 2(a), 34 (Saskatchewan)
8-
Guarantees as to fitness for particular purpose
(1)
Subject to section 41 of this Act, the following guarantees apply where goods are supplied to a consumer:
(a)
That the goods are reasonably fit for any particular purpose that the consumer makes known, expressly or by implication, to the supplier as the purpose for which the goods are being acquired by the consumer; and
(b)
That the goods are reasonably fit for any particular purpose for which the supplier represents that they are or will be fit.
(2)
Those guarantees do not apply where the circumstances show that—
(a)
The consumer does not rely on the supplier's skill or judgment; or
(b)
It is unreasonable for the consumer to rely on the supplier's skill or judgment.
(3)
This section applies whether or not the purpose is a purpose for which the goods are commonly supplied.
(4)
Part 2 of this Act gives the consumer a right of redress against the supplier where the goods fail to comply with any guarantee in this section.
Subject to section 41 of this Act, where goods are supplied by description to a consumer, there is a guarantee that the goods correspond with the description.
(2)
A supply of goods is not prevented from being a supply by description by reason only that, being exposed for sale or hire, they are selected by a consumer.
(3)
If the goods are supplied by reference to a sample or demonstration model as well as by description, the guarantees in this section and in section 10 of this Act will both apply.
(4)
Where the goods fail to comply with the guarantee in this section,—
(a)
Part 2 of this Act gives the consumer a right of redress against the supplier; and
(b)
Part 3 of this Act may give the consumer a right of redress against the manufacturer.
Compare: 1908 No 168 s 15; 1971 No 147 s 14(2); Trade Practices Act 1974, s 70(2) (Australia)
10-
Guarantee that goods comply with sample
(1)
Subject to section 41 of this Act, the following guarantees apply where goods are supplied to a consumer by reference to a sample or demonstration model:
(a)
That the goods correspond with the sample or demonstration model in quality; and
(b)
That the consumer will have a reasonable opportunity to compare the goods with the sample.
(2)
If the goods are supplied by reference to a sample or demonstration model as well as by description, the guarantees in this section and section 9 of this Act will both apply.
(3)
Part 2 of this Act gives the consumer a right of redress against the supplier where the goods fail to comply with any guarantee in this section.
