Consumer protection statutes in both Australia and New Zealand impose obligations on people who are in trade. Courts have consistently interpreted the ‘in trade’ limitation as excluding private transactions. In New Zealand, a statutory provision operative since 2014 requires all sellers ‘in trade’ who transact over the internet to make it clear to consumers that they are a ‘vendor in trade’. This helps consumers buying online to assess whether or not they are protected by consumer legislation. This article explores the emerging interpretation difficulties presented by the private seller exclusion in an age of online selling where the distinction between a commercial seller and a private seller is not always clear. The article considers whether there are good reasons, both in terms of policy and as a matter of statutory interpretation, to abandon the idea that private transactions are not ‘in trade’ and, therefore, not subject to consumer protection legislation. If the private seller exclusion is not abandoned, it is argued that there is an urgent need to update consumer legislation to clarify when sellers cross the line from being a seller entering a private transaction to being a person acting ‘in trade’. Recommendations are made for the development of new statutory guidelines and definitions.
Kate Tokeley, When Not All Sellers Are Traders: Re-Evaluating the Scope of Consumer Protection Legislation in the Modern Marketplace, Sydney Law Review 39:59 (2017).