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Claiming against an overseas manufacturer under NZ law

Key Takeaway

New Zealand consumer law, primarily the Consumer Guarantees Act 1993 and the Fair Trading Act 1986, provides rights for consumers regarding goods purchased from overseas manufacturers. While enforcement against an overseas entity can be complex, local suppliers (importers/retailers) are typically liable under these Acts for goods they supply, even if manufactured offshore.

Claiming Against an Overseas Manufacturer Under New Zealand Law

When consumers in New Zealand purchase goods, their rights are protected primarily by the Consumer Guarantees Act 1993 (CGA) and the Fair Trading Act 1986 (FTA). These Acts can apply even when goods are manufactured overseas, though the path to remedy might involve the local supplier.

Consumer Guarantees Act 1993 (CGA)

The Consumer Guarantees Act 1993 (CGA) aims to protect consumers by providing a set of guarantees for goods and services supplied to them [Source: Consumer Guarantees Act 1993, s 1]. These guarantees apply to goods ordinarily acquired for personal, domestic, or household use [Source: Consumer Guarantees Act 1993, s 2(1)].

Who is a 'Manufacturer' under the CGA?

The CGA defines a manufacturer broadly. It includes not only the actual producer of the goods but also a person who:

  • Holds themselves out to the public as the manufacturer.
  • Applies their own brand or mark to goods manufactured by another.
  • Imports goods into New Zealand where the actual manufacturer does not have a place of business in New Zealand [Source: Consumer Guarantees Act 1993, s 2(1)].

This means that an importer (a person who brings goods into New Zealand from another country) can be treated as the manufacturer for the purposes of the CGA if the original overseas manufacturer does not have a presence in New Zealand.

Guarantees Provided by Manufacturers

Under the CGA, manufacturers provide several guarantees relating to goods:

  • Acceptable quality: Goods must be of acceptable quality, fit for purpose, safe, durable, and free from minor defects [Source: Consumer Guarantees Act 1993, s 7].
  • Availability of spare parts and repair facilities: The manufacturer guarantees that facilities for the repair of the goods and spare parts will be reasonably available for a reasonable period after the goods are supplied [Source: Consumer Guarantees Act 1993, s 9].
  • Compliance with express guarantees: Any express guarantee given by the manufacturer (e.g., a warranty) must be complied with [Source: Consumer Guarantees Act 1993, s 10].

Remedies Against Manufacturers

If goods fail to comply with these guarantees, a consumer may take action against the manufacturer. The remedies available include the ability to recover damages for any reduction in the value of the goods, any loss or damage resulting from the failure that was reasonably foreseeable, and the costs of having the goods repaired [Source: Consumer Guarantees Act 1993, s 27(1), s 27(2)].

However, it is important to note that a consumer's primary recourse for most issues is typically against the supplier (the retailer or importer) who sold them the goods [Source: Consumer Guarantees Act 1993, s 18]. The supplier is generally liable to the consumer under the CGA, and if the fault lies with the manufacturer, the supplier may then seek recourse from the manufacturer themselves [Source: Consumer Guarantees Act 1993, s 27(3)]. If the importer is deemed the manufacturer, the consumer may directly claim against them under these provisions.

Fair Trading Act 1986 (FTA)

The Fair Trading Act 1986 (FTA) prohibits misleading and deceptive conduct in trade and false representations [Source: Fair Trading Act 1986, s 1A]. This Act applies to any person who is in trade [Source: Fair Trading Act 1986, s 2(1)].

Key Provisions Relevant to Manufacturers

  • Misleading and deceptive conduct: A person must not, in trade, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive [Source: Fair Trading Act 1986, s 9]. This includes representations made by manufacturers on packaging, in advertising, or through product descriptions.
  • False representations: The Act specifically prohibits making false or misleading representations concerning the goods themselves, their nature, quality, or standard [Source: Fair Trading Act 1986, s 13(a)].

Application to Overseas Manufacturers and Remedies

If an overseas manufacturer directly engages in misleading or deceptive conduct in New Zealand (e.g., through advertising targeted at New Zealand consumers) or makes false representations that reach New Zealand consumers, they could potentially be in breach of the FTA. However, proving jurisdiction and enforcing against an overseas entity with no physical presence in New Zealand can be challenging.

Often, it is the New Zealand-based importer or retailer who makes the goods available to consumers. These local entities are typically liable under the FTA for their own conduct in trade, even if the misleading information originated from the overseas manufacturer. The FTA provides a range of remedies for breaches, including declarations, injunctions, orders to pay damages, or orders to vary or void contracts [Source: Fair Trading Act 1986, s 43].

Practical Considerations for Overseas Manufacturers

While the CGA and FTA provide rights that can apply to goods from overseas manufacturers, enforcing these rights directly against an overseas manufacturer who has no business operations or assets in New Zealand can be complex and costly. It may involve navigating international law and foreign court systems.

For most consumers, the most effective course of action is to pursue a claim against the New Zealand-based supplier (the retailer or importer) from whom they purchased the goods. These local entities are clearly within the jurisdiction of New Zealand courts and are often responsible for ensuring goods comply with the CGA and FTA, especially if they are deemed the 'manufacturer' under the CGA due to importing the goods.

When to Seek Independent Legal Advice

Understanding and enforcing consumer rights, particularly when dealing with overseas manufacturers, can be complex. It is advisable for individuals to seek independent legal advice if they have purchased faulty goods or believe they have been misled. Further information and assistance can be obtained from the Commerce Commission for Fair Trading Act matters, Consumer Protection for general consumer rights, and Community Law Centres for free legal assistance across New Zealand.

Key Resources