The Effect of Disclaimers on Liability for Misleading or Deceptive Conduct under the Fair Trading Act 1986

Abstract

This paper examines how a disclaimer may affect liability for misleading or deceptive conduct under the Fair Trading Act 1986. While New Zealand courts have generally held that contracting out of liability under the Fair Trading Act 1986 through the use of disclaimers was prohibited, a series of cases has suggested the presence of a disclaimer may indirectly allow a party to avoid liability. This paper explores the background and purpose of the Fair Trading Act 1986 and the relevant sections. The paper then summarises approaches taken by New Zealand courts in giving effect to disclaimers, before suggesting the correct approach in light of the amendments made by the Fair Trading Amendment Act 2013.