Nick Dowse Actions Against Manufacturers
Actions Against Manufacturers (TPA) – Structure of Answer
1. X will want to recover against the manufacturer/importer of the goods if they cannot recover
against the immediate seller.
a. Might be unable to recover because
i. The seller is insolvent, so will then want to seek the manufacturer/importer as an
alternative source of compensation; or
ii. No terms could be implied into the K between the buyer and seller, or no terms of
the K were breached by the seller; or
iii. The goods were given to the plaintiff as a gift.
2. For this cause of action to apply, there must be 3 parties:
a. The manufacturer who created the goods;
b. The retailer who sold the goods to the plaintiff; and
c. The consumer, who bought the goods from the retailer.
3. At CL, the manufacturer is a stranger to the K with the retailer, so it cannot be sue or be sued
upon it. Part 5 Division 2A of the TPA addresses this inadequacy by creating a statutory cause of
action (i.e. it does not create statutory privity of K) (Courtney v Medtel).
a. Part 5 Div 2A cannot be modified or excluded by contract (74K).
4. The plaintiff must be a “consumer” under s 4B TPA
a. NOTE: If have previously shown that plaintiff is a consumer, do not go through this again!
b. Consumer is defined in s 4B TPA (exhaustive).
c. Essentially, a consumer is a person/corporation where either:
i. The price of the goods does not exceed $40K (s 4B(1)(a)(i)); OR
ii. If they do exceed $40K, then they are of a kind ordinarily acquired for personal,
domestic or household use or consumption (regardless of price) (s 4B(1)(a)(ii))
1. OA4PDOHUOC is a Q of fact (Carpet Call)
2. Focus is on ordinary use, not the actual intended use
3. Things not OA4PDOHU:
a. Airseeder (Jillawarra)
b. Large tractor (Atkinson)
c. Reduction photocopier (Four Square Stores)
d. Prime Mover (Minchillo)
e. Ostrich egg incubator (Crago)
d. May be a consumer even where goods are purchased second hand (Atkinson v Hastings
e. Not a consumer if the goods are purchased for resale, or to be used in the process of
production or manufacture (s 4B(1)(a))
f. Just because something is used on a farm or purchased for a nightclub, does not make it
lose its character as OA4PDOHUOC (Carpet Call)
i. And just because used in a business does not make it lose those qualities (Crago)
5. The plaintiff must have acquired “goods” within s 74A(2)(a)
a. Section 74A(2)(a) is a more circumscribed meaning of “goods” than appears in Part 5,
i. Can only be goods of a kind ordinarily acquired for personal, domestic or household
use or consumption
1. Ford Prime Mover, even though used personally, did not come within this
definition in (Minchillo v Ford)
6. The defendant must be a “manufacturer”
a. The word ‘manufacturer’ is not defined in the TPA.
b. The word ‘manufactured’ is defined in s 74A(1) to include: grown, extracted, produced,
processed and assembled.
c. A corporation will be deemed to be the manufacturer (for the purposes of Div 2A) where:
i. The corp holds itself out to the public as the manufacturer of goods (s 74A(3)(a)); or
ii. A corp causes or permits the name of the corp to be applied to the goods supplied
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(s 74A(3)(b)); or
iii. The corp causes or permits another person in connexion with the supply or possible
supply of goods by the other person, or in connexion with promotion by that other
person by any means, of the supply or the use of the goods, to hold out the corp to
the public as the manufacturer of the goods (s 74A(3)(c)); or
iv. Goods are imported by the corp, and at the time of importation, the actual
manufacturer does not have a place of business in Australia (s 74A(4)).
7. What are the obligations of the manufacturer/importer/deemed manufacturer?
a. Goods must be reasonably fit for the purpose for which they were acquired by the
consumer, even if that purpose is