(ii) where subsection 54(1) applies—
(A) is unfit for a particular purpose made known to the supplier; or
(B) of such a nature and quality that the product cannot be expected to achieve a particular result made known to the supplier,
and the product cannot easily and within a reasonable time be remedied to make it fit for the particular purpose or to achieve the particular result; or
(b) the product resulting from the services is unsafe. Rules applying to cancellation of contract
63. (1) A cancellation of a contract for the supply of services shall not take effect—
(a) before the time at which the cancellation is communicated to the supplier; or
(b) where it is not reasonably practicable to communicate with the supplier, before the time at which the consumer indicates to the supplier, by means which are reasonable in the circumstances, his intention to cancel the contract.
(2) Subject to subsection (3), a cancellation of the contract may be communicated by words or conduct or both which indicate the intention of the consumer to cancel the contract, and it shall not be necessary to use any particular form of words, as long as the intention to cancel is clear.
(3) Where it is reasonably practicable to communicate with the supplier, subsection (2) shall take effect subject to any express provision in the contract requiring notice of cancellation to be in writing.
Effect of cancellation of contract
64. (1) Where the consumer exercises the right conferred under
this Act to cancel a contract for the supply of services—
(a) the consumer shall be entitled to obtain from the supplier a refund of any money paid or other consideration provided in respect of the services unless a court or the Tribunal, as the case may be, orders that the supplier may retain the whole or any part of the money paid or other consideration provided by the consumer;
Consumer Protection 53
(b) in so far as the contract has been performed at the time of the cancellation, no party shall by reason of the cancellation be divested of any property transferred or money paid under the contract, except as provided under paragraph (a); and
(c) in so far as the contract remains unperformed at the time of the cancellation, no party shall be obliged or entitled to perform it further.
(2) Nothing in subsection (1) shall affect—
(a) the right of a party to recover damages in respect of a misrepresentation or the repudiation or breach of the contract by another party;
(b) the right of the consumer to obtain damages under subparagraph 60(1)(b)(ii) or subsection 60(2) for failure to comply with a guarantee; or
(c) the right of the consumer under this Act to reject goods supplied in connection with the services.
Power of court to grant ancillary relief
65. (1) Where the consumer cancels a contract for the supply of services under this Act, a court, in any proceedings or on an application made for the purpose, may make any order or orders granting relief under this section as it thinks just and practicable to do so.
(2) An application for an order under this section may be made by—
(a) the consumer;
(b) the supplier; or
(c) any other person who has suffered loss.
(3) An order under this section may—
(a) vest in any party to the proceedings the whole or any part of any real or personal property that was the subject of the contract or was the whole or part of the consideration for it;
54
(b)
(c) (d)
Laws of Malaysia ACT 599
direct any party to the proceedings to transfer or assign to any other such party or to give him the possession of the whole or any part of any real or personal property that was the subject of the contract or was the whole or part of the consideration for it;
without prejudice to any right to recover damages, direct any party to the proceedings to pay to any other such party such sum as the court thinks just; or
permit a supplier to retain the whole or any part of any money paid or other consideration provided in respect of the services under the contract.
(4) An order under subsection (1) or any provision of it, may be made on and subject to such terms and conditions as the court thinks fit, not being a term or condition that would have the effect of preventing a claim for damages by any party.
(5) In considering whether to make an order under this section, and in considering the terms and conditions it proposes to impose, the court shall have regard to the following:
(a) any benefit or advantage obtained by the consumer by reason of anything done by the supplier in or for the purpose of supplying the services;
(b) the value, in the opinion of the court, of any work or services performed by the supplier in or for the purpose of supplying the services;
(c) any expenditure incurred by the consumer or the supplier in or for the purpose of the performance of the services;
(d) the extent to which the supplier or the consumer was or would have been able to perform the contract in whole or in part; and
(e) such other matters as the court thinks fit.
(6) No order under paragraph (3)(a) shall be made if it would have the effect of depriving a person, not being a party to the contract, of the possession of, or any estate or interest in, any property acquired by him in good faith and for valuable consideration.
(7) No order shall be made under this section in respect of any property if any party to the contract has so altered his position in relation to the property, whether before or after the cancellation of the contract, that having regard to all the relevant circumstances, it would, in the opinion of the court, be inequitable to any party to make such an order.
Consumer Protection 55 PART X
PRODUCT LIABILITY
Interpretation
66. (1) In this Part, unless the context otherwise requires—
“agricultural produce” means any produce of the soil, of stock farming or of fisheries;
“damage” means death or personal injury, or any loss of or damage to any property, including land, as the case may require;
“dependant” has the same meaning as in the Civil Law Act 1956 [Act 67];
“producer”, in relation to a product, means—
(a) the person who manufactured it;
(b) in the case of a substance which is not manufactured but is won or abstracted, the person who won or abstracted it;
(c) in the case of a product which is not manufactured, won or abstracted but the essential characteristics of which are attributable to an industrial or other process having been carried out, the person who carried out that process;
“product” means any goods and, subject to subsection (2), includes a product which is comprised in another product, whether by virtue of being a component part, raw material or otherwise.
(2) For the purposes of this Part, a person who supplies any product in which other products are comprised therein, whether by virtue of being a component part, raw material or otherwise, shall not be treated by reason only of his supply of that product as supplying any of the products so comprised therein.
Meaning of “defect”
67. (1) Subject to subsections (2) and (3), there is a defect in a product for the purposes of this Part if the safety of the product is not such as a person is generally entitled to expect.