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When importing or on-selling is deemed manufacturing

Property Law

As many of you may be aware, under the Australian Consumer Law, there is broad scope for a person who is injured by goods to bring an action against the manufacturer of those goods. Many wholesalers may feel that they are immune from risk under these manufacturer liability provisions. Unfortunately for them, this is not always the case. There are in fact multiple circumstances where a wholesaler, or any entity which does not manufacture goods, can be deemed to be the manufacturer.

The Australian Consumer Law deems the following entities to be the manufacturers of goods:

1. The entity which grew, extracted, produced, processed or assembled the goods;

2. An entity which holds itself out as the manufacturer of goods, or which allows another (for example its distributors or marketers) to hold out the entity as the manufacturer of the goods;

3. An entity which causes or permits their actual name, business name or brand/trade mark to be applied to goods;

4. An importer of goods, as long as the actual manufacturer did not have a place of business in Australia at the time of import;

5. Finally, if a person asks a supplier of goods for the identity of the manufacturer, and the supplier does not respond within 30 days, that supplier can be held to be the manufacturer, even if none of the previous paragraphs otherwise apply.

As is clear form the above, it is possible for a company to be deemed the manufacturer, even if it had nothing to do with the manufacture process. In fact, it is entirely possible for multiple entities to be deemed the manufacturer of the same goods. If you could be in this position, it is worth making sure you are properly insured.