Section 58 ACL: the guarantee of repairs and spare parts

Your appliance breaks down after the manufacturer's written warranty has expired, and the repairer tells you the part is no longer available. That situation may engage a guarantee most consumers have never heard of: section 58 of the Australian Consumer Law. It is a guarantee that the manufacturer will take reasonable action to ensure that repair facilities and spare parts are reasonably available for a reasonable period after the goods are supplied.

Quick answer

Section 58 doesn't promise perpetual stock, free repairs or support for a fixed number of years. What counts as a "reasonable period" depends on the goods, and the guarantee doesn't apply at all if the manufacturer took reasonable action to ensure you were told in writing, at or before the time you agreed to buy, that repair facilities or parts would not be available, or would not be available after a specified period.

If the guarantee is not met, the ACL gives you a direct damages action against the manufacturer (sections 271 and 272), which must be started within 3 years of when you first became, or ought reasonably to have become, aware of the failure (section 273). The usual refund, replacement and repair remedies against the seller (section 259) expressly don't apply to section 58. You may still have a claim against the seller under a different guarantee: if the goods failed sooner than a reasonable consumer would expect, that can be a failure of acceptable quality under section 54.

So in practice there are often two separate claims: section 58 against the manufacturer about parts and repairs, and section 54 against the seller about the fault itself.

What the law actually says

The guarantee. Under section 58 of the ACL, where a business supplies goods to a consumer in trade or commerce (other than by a sale by auction), there is a guarantee that the manufacturer will take reasonable action to ensure that facilities for repair, and parts for the goods, are reasonably available for a reasonable period after supply. The duty is on the manufacturer, not the retailer.

The written-notice exception. Section 58 does not apply if the manufacturer took reasonable action to ensure that you would be given written notice, at or before the time you agreed to buy, that repair facilities or parts would not be available, or would not be available after a specified period. A discontinuation notice published years later doesn't meet that test. Check the packaging, manual, product page and invoice for any such statement, and keep a copy.

What "reasonable" means. The ACL doesn't define the reasonable period, and no fixed number of years applies. Factors a court or tribunal may weigh, depending on the case, include:

• the type of goods and their price: a consumer would usually expect longer parts support for an expensive fridge than for a budget blender;
• how long a reasonable consumer would expect to use goods of that kind;
• any representations about support life or durability;
• what the manufacturer actually did, such as keeping parts, authorising repairers, or offering compatible or refurbished parts.

The test is reasonable action, not a promise that every part will always be in stock.

Who counts as the manufacturer. The ACL's definition of "manufacturer" is wider than the factory. It includes a business that holds itself out as the manufacturer, or puts its own name or brand on the goods (including many own-brand retail products), and an importer where the overseas maker has no place of business in Australia. Identify that business before you write.

Who is a consumer. You acquired goods as a consumer under section 3 of the ACL if the amount paid or payable was $100,000 or less, or they were of a kind ordinarily acquired for personal, domestic or household use or consumption; either limb is enough. A vehicle or trailer acquired mainly to transport goods on public roads also qualifies. For goods, there are exclusions for goods acquired for re-supply, or to use up or transform in trade or commerce in the course of production or manufacture, or of repairing or treating other goods or fixtures on land. Check how section 3 applies to you.

The remedy: damages from the manufacturer. If section 58 isn't complied with, section 271(5) lets you (or a later owner who got the goods from you, other than to resell them, or who derives title through you) take action against the manufacturer for damages. Under section 272 these cover:

• any reduction in the value of the goods caused by the failure, below the lower of the price you paid and the average retail price at the time of supply; and
• other reasonably foreseeable loss, which is taken to include the cost of inspecting and returning the goods to the manufacturer.

One specific limit applies under section 271(6): if, under the manufacturer's own express warranty, you required it to fix the failure by repairing or replacing the goods, you can claim the reduction in value only if it refused, failed, or didn't do so within a reasonable time. It doesn't affect claims where you made no such warranty request. Evidence each amount, take reasonable steps to limit your loss, and don't claim the same loss twice. The 3-year limit in section 273 runs from when you first became, or ought reasonably to have become, aware of the failure.

Why the seller is different. Section 259(1) excludes sections 58 and 59(1) from the seller remedies, so you can't reject the goods for a refund or replacement from the retailer because parts are unavailable. Your seller-facing claim, if any, is under another guarantee, usually section 54.

How section 54 fits in. Under section 54, goods must be as durable and free from defects as a reasonable consumer fully acquainted with their state and condition would regard as acceptable, judged at the time of supply. Parts being unavailable doesn't by itself prove the goods weren't durable; the question is whether the original fault shows they fell short. Where it does, the seller remedies apply:

• if the failure is major, or can't be remedied, you can reject the goods (subject to section 262) and choose a refund or a replacement of the same type and similar value if one is reasonably available (section 263), or keep them and claim compensation for the drop in value (section 259(3));
• if it is not major and can be remedied, you can require the seller to fix it within a reasonable time; the seller gets the first opportunity to do so, by repair, replacement or refund (sections 259(2) and 261). If it refuses or takes too long, you can have it fixed elsewhere and recover the reasonable cost, or reject the goods (subject to section 262);
• other reasonably foreseeable loss is recoverable under section 259(4).

Under section 260, a failure is major if, among other things, a reasonable consumer fully acquainted with the nature and extent of the failure would not have acquired the goods, or the goods are substantially unfit for their common purpose and cannot easily and within a reasonable time be remedied. If the section 54 fault can't be repaired because no parts exist, that can be relevant to that question. The right to reject can be lost in several ways, including when the rejection period ends under section 262: the time within which it would be reasonable to expect the failure to become apparent, considering the type of goods, their likely use, how long they can reasonably be used and the amount of use. See our section 54 guide.

When this applies (and when it doesn't)

Section 58 is likely to help when:

• the goods were supplied by a business acting in trade or commerce (not a genuine private seller), other than at a sale by auction, to you or to the consumer you later got them from;
• you acquired them as a consumer under section 3;
• the manufacturer didn't take reasonable action to ensure you'd get written notice, at or before the time you agreed to buy, that repair facilities or parts would not be available, or would not be available after a specified period; and
• the manufacturer hasn't taken reasonable action to keep repairs and parts reasonably available for the period a reasonable consumer would expect.

It is unlikely to help when:

• you were given that written notice at or before the time you agreed to buy;
• parts are scarce but the manufacturer took reasonable action, for example by offering compatible or refurbished parts or authorised repair options;
• the reasonable period for goods of that type and price has genuinely passed;
• the goods were never supplied by a business to a consumer (for example, they only ever changed hands privately or at auction), or fall within a section 3 exclusion.

A written pre-sale notice of the kind described above is allowed, but a contract term that tries to exclude section 58 is void to the extent it excludes, restricts or modifies the guarantee under section 64. For goods not of a kind ordinarily acquired for personal, domestic or household use, section 64A may let the seller's own supply contract limit the seller's liability (for example, on a section 54 claim) to replacing the goods or supplying equivalent goods, repairing them, or paying the cost of doing so, unless you show relying on that limit isn't fair or reasonable. It doesn't limit the manufacturer's separate damages liability, and the ACL also voids contract terms that try to exclude or restrict that manufacturer action.

Overseas sellers. The ACL can apply where an overseas business supplies goods directly to a consumer in Australia, but enforcing a claim across borders can be hard. Where the overseas maker has no place of business in Australia, an Australian commercial importer may be treated as the manufacturer. If you imported the goods directly for your own use, identifying a manufacturer you can reach, and enforcing any remedy, may be much harder; get advice on the particular supply chain. See our guide to overseas purchases.

What to do today

1. Record the product details. Note the model, serial number and the exact part number the repairer says is unavailable, plus the purchase date and price.

2. Look for any pre-sale notice. Check the packaging, manual, product page, invoice and warranty documents for a written statement, given at or before the sale, that repair facilities or parts would not be available, or would not be available after a specified period, and save copies. A later discontinuation notice doesn't count.

3. Identify the manufacturer. Check who made or brands the goods and, for imported goods whose maker has no place of business in Australia, the importer. That is usually who a section 58 claim is against.

4. Get the "no parts" answer in writing. Ask the repairer, and the manufacturer, to confirm in writing which part is unavailable, what searches were made, and whether compatible, third-party or refurbished parts exist.

5. Get an independent written assessment. A report from a qualified repairer on what failed, why, whether repair is possible with any available part, the likely cost and the goods' value carries more weight than your own account.

6. Protect your data before handing goods over. Back up phones, computers and other devices that store data. Before accepting goods for repair, a repairer must give you a repair notice warning that data may be lost if the goods can store data, and saying if it may use refurbished parts or replace your goods with refurbished ones; read it before you agree.

7. Write to the right business. Send the manufacturer a written claim under sections 58, 271 and 272 (and section 54 if the fault itself suggests the goods weren't durable), listing the damages you seek. If so, also write to the seller under section 54 stating the remedy you want. Give a deadline of 14 to 21 days (a practical default, not an ACL requirement).

8. Check payment options only if they're recent. A chargeback is rarely open years after purchase, but if you recently paid for a failed repair or a new part, ask your card provider whether a dispute is still possible; both follow the card scheme's or provider's own time limits, not the ACL's.

Not sure how to draft the letter? You can generate one for free using fairgo.

What if the business refuses

• Your state or territory consumer protection body. It may help, for example by contacting the business or conciliating, if your complaint meets its criteria. Most expect you to have tried to resolve the matter with the business first, and eligibility rules vary by state and dispute type (in the ACT, for example, statutory conciliation applies only where the remedy you seek is worth $5,000 or less). These bodies don't make binding orders in ordinary consumer disputes and can't make the business settle. Contact details are at /agencies.

• A tribunal or court with jurisdiction. In NSW, Victoria, Queensland, the ACT and the NT, a tribunal (NCAT, VCAT, QCAT, ACAT or NTCAT) hears many consumer claims within its limits; in Western Australia, South Australia and Tasmania, ordinary consumer claims go to the Magistrates Court. Jurisdiction depends on each forum's enabling legislation, the type of claim and the amount, and a damages claim against a manufacturer may need a court rather than a tribunal in some states, so confirm the forum and its current thresholds on the official site before filing. You can usually run a claim without a lawyer, though some forums restrict legal representation (QCAT, for example, requires permission). Check current filing fees on the official site, and ask about fee exemptions, waivers or deferrals if cost is a concern. Our guide to choosing the right tribunal or court has more.

• The ACCC. The ACCC investigates systemic conduct rather than individual disputes. Reporting a pattern, such as a brand withdrawing parts support across a product range, can still be worthwhile.

Common mistakes

• Assuming the warranty period is the limit. A manufacturer's written warranty is separate from section 58, and the reasonable period for repairs and parts can run well beyond it.

• Asking the seller for a refund because parts are unavailable. Section 58 runs against the manufacturer, and the seller remedies don't apply to it. Put the parts claim to the manufacturer, and raise the fault itself under section 54, usually with the seller.

• Missing the pre-sale notice. If the manufacturer took reasonable action to ensure you'd get written notice, at or before the time you agreed to buy, that repair facilities or parts would not be available, or would not be available after a specified period, section 58 may not apply. Check before you allege a breach.

• Writing to the wrong "manufacturer". For imported or own-brand goods, the business that counts as the manufacturer may be the importer or brand owner, not the overseas factory.

• Not getting the parts search in writing. A verbal "discontinued" is hard to prove. Ask what was searched and what alternatives exist.

• Waiting too long. The 3-year limit for manufacturer claims runs from when you first became, or ought reasonably to have become, aware of the failure, and the right to reject goods for a section 54 failure can be lost, including when the section 262 rejection period ends. Other limitation laws and forum rules also apply. Raise the problem in writing as soon as you notice it. See our guide on phones broken after warranty.

Related reading

• Section 54 ACL: the acceptable quality guarantee explained
• Phone broken after the warranty period: your ACL rights
• Business refused your refund? Here's what to do next
• Which tribunal or court for your consumer dispute?

This article is general information about Australian Consumer Law, not legal advice. It also touches on complaint and escalation pathways (state and territory consumer bodies, tribunals and courts, the ACCC and card providers' chargeback rules), repair notice requirements and limitation laws, whose scope, rules, thresholds and processes sit outside the ACL or can change. Confirm the current position with the relevant body before lodging. For advice on your specific case, see your state or territory consumer body — full list at /agencies.