New South Wales Consolidated Acts

SALE OF GOODS ACT 1923 - SECT 64

64 Conditions and warranties in contracts for consumer sales

(1) Any provision in, or applying to, a contract for a consumer sale and purporting to exclude or restrict the operation of all or any of the provisions of sections 18, 19 and 20 (section 19 (4) excepted) or any liability of the seller for a breach of a condition or warranty implied by any provision of those sections is void.

(2) An express warranty or condition in a contract for a consumer sale does not negative a condition as to merchantable quality implied by this Act.

(3) Without limiting the meaning of the expression
"merchantable quality" , goods of any kind which are the subject of a contract for a consumer sale are not of merchantable quality if they are not as fit for the purpose or purposes for which goods of that kind are commonly bought as is reasonable to expect having regard to their price, to any description applied to them by the seller and to all other circumstances.

(4) In a contract for a consumer sale there is no implied condition that the goods are of merchantable quality as regards defects brought to the buyer's notice before the contract was entered into.

(5) Where, in any proceedings arising out of a contract for a consumer sale (not being a consumer sale of second-hand goods), it appears to the court that the goods, at the time of their delivery to the buyer, were not, by reason of any defect in them or for that and any other reason, of merchantable quality, the court may add the manufacturer of the goods as a party to the proceedings and, if of the opinion that the defect should be remedied by the manufacturer, may make against the manufacturer either:

(a) an order requiring the manufacturer to pay to the buyer an amount equal to the estimated cost of remedying the defect, or

(b) an order requiring the manufacturer to remedy, within such time as may be specified in the order, the defect and, in default of compliance with that order, require the manufacturer to pay to the buyer an amount equal to the estimated cost of remedying the defect,

and may make such other ancillary orders against the manufacturer as to the court seem proper.

(6) In subsection (5),
"manufacturer" , in relation to any goods the subject of proceedings referred to in that subsection, includes a person who resides or carries on business in the Commonwealth and who received those goods from outside the Commonwealth otherwise than from a person who resides or carries on business in the Commonwealth.

(7) The jurisdiction of a court to make an order in any proceedings referred to in subsection (5) is limited as to amount to the same extent as if proceedings in respect of the defect had been taken in that court by the buyer against the person liable for the remedying of the defect.

(8) An order made by a court under subsection (5) (a) or (b) has effect as if it were a judgment of that court.

(9) In any legal proceedings for breach of the condition of merchantable quality implied pursuant to this Act in a consumer sale relating to second-hand goods, the liability of the seller is, subject to any contrary agreement, limited to the amount of the cash price of the goods in respect of which the condition is adjudged to be in breach.