代写BUSN1101 Australian Consumer Law
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代写BUSN1101 Australian Consumer Law
nBUSN1101
nAustralian Consumer Law
nConsumer guarantees in relation to goods
nGuarantee as to title s51 ACL
nGuarantee as to undisturbed possession s 52 ACL
nGuarantee as to undisclosed securities s 53 ACL
nGuarantee as to acceptable quality s 54 ACL
nGuarantee as to fitness for any disclosed purpose s 55 ACL
nGuarantee as to the supply of goods by description s 56 ACL
nGuarantee as to the supply of goods by sample or demonstration model s 57 ACL
nGuarantee as to repairs and spare parts s 58 ACL
nGuarantee as to express warranties s 59 ACL
nhttps://www.youtube.com/watch?v=uE8BB-ioNRw – checkout clip on consumer guarantees
nConsumer guarantees in relation to services
nNot all services are covered by the consumer guarantee see s 63ACL
nExcludes
nthe transportation or storage of goods for the purposes of a business trade, profession of occupation carried on or engage in by the person for whom the goods are transported or stored
nor a contract of insurance.
nConsumer guarantees in relation to services
nIf a supplier supplies services to a consumer in trade or commerce
nthere is a guarantee that services will be rendered with due care and skill s 60 ACL
n(but not of a professional nature by a qualified architect or engineer) and the consumer makes known a particular purpose there is a guarantee that the product resulting will be reasonably fit for that purpose.
nOr the consumer makes known the result he or she wishes to achieve there is a guarantee that the services will be of such a nature and quality state or condition that might reasonably be expected to achieve that result.
nGuarantee does not apply if if the consumer did not or it was unreasonable for the consumer to rely on the skill or judgment of the supplier.
nhttps://www.youtube.com/watch?v=yL2y5rNfUMM Checkout clip on services
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nConsumers’ remedies
Where there has been a breach of a guarantee that relates to goods, the consumer has a remedy against the supplier: s 259. The same applies for a breach of a guarantee in respect of services: s 267.
The nature of the remedy depends on whether the failure to comply with the guarantee is a ‘major failure’. For a major failure they consumer can reject the goods and/or sue for damages s 259 (3) and (4) or in the case of services terminate the contract or sue for damages s 267 (3) and (4)
According to s 260 a major failure arises if:
a)the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
b)the goods depart in one or more significant respects:
i.if they were supplied by description — from that description; or
ii.if they were supplied by reference to a sample or demonstration model — from that sample or demonstration model; or
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nConsumers’ remedies
c)the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
d)the goods are unfit for a disclosed purpose that was made known to:
i.the supplier of the goods; or
ii.a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
e)the goods are not of acceptable quality because they are unsafe. Section 259(2) specifies the rights of the consumer where the failure can be remedied and is not a major remedy.
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nConsumers’ remedies
s 259(2) specifies the rights of the consumer where the failure can be remedied and is not a major remedy
In s 261, the Act explains how a failure can be remedied:
a)if the failure relates to title — by curing any defect in title; or
b)if the failure does not relate to title — by repairing the goods; or
c)by replacing the goods with goods of an identical type; or
d)by refunding:
i.any money paid by the consumer for the goods; and
ii.an amount that is equal to the value of any other consideration provided by the consumer for the goods.
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nConsumers’ remedies
s 262(1) states that a consumer is not entitled to notify a supplier of goods that he or she rejects the goods if
a)the rejection period as explained in s 262(2) for the goods has ended;
b)the goods have been lost, destroyed or disposed of by the consumer;
c)the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or
d)the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them.
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nConsumers’ remedies
nWhere goods have been rejected, s 263 requires the consumer to return the goods, after which title revests in the supplier. The supplier is required to either refund any money paid or consideration offered or replace the goods with goods of equivalent type. The consumer chooses which.
nSimilar provisions apply to failures to comply with guarantees in respect of services: ss 267–270.
nIn certain circumstances, the consumer has a remedy against the manufacturer for failure to comply with a guarantee — for example where the supplier cannot be located: s 271. The remedy is by way of damages (s 272) but there is a time limit to be observed: s 273.
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nMisleading and deceptive conduct s 18 ACL (formerly s 52 TPA)
nS 18 ACL provides that a person shall not in trade or commerce engage in conduct that is misleading or deceptive, or likely to mislead or deceive
nMisleading and deceptive (see Taco Bell case)
nIdentify the relevant section of the public
nIncluding the astute and gullible, the intelligent and not so intelligent
nWould a member of that section of the public be likely to be misled or deceived? (no need to prove anyone was deceived)
nMisleading and deceptive conduct s 18 ACL
nTaco Company of Australia Inc; Taco Bell v Taco Bell Pty Ltd (1982) ATPR ¶40-303 text 305 and 308
Use of name “Taco Bell” by Bondi restaurant (1977) – described as an unpretentious restaurant specialising in Mexican style food. The US chain of fast food restaurants specialising in Mexican food, opened in Sydney in 1981 and sought to prevent the use of the name Taco Bell by the existing Bondi restaurant. The Bondi restaurant cross-claimed.
n
nTaco Company of Australia Inc; Taco Bell v Taco Bell Pty Ltd (1982) ATPR ¶40-303
nUS co lost in its s 18 claim
nThe relevant section of the public, by reference to whom the Bondi company's use of the name " Taco Bell's Casa" or " Taco Bell's" falls to be tested, comprises those persons who, at the relevant time, knew or know of the appellants' " Taco Bell" chain of restaurants. Even if attention be confined to those unaware of the considerable dissimilarities between the nature of the respective restaurant operations, it could not reasonably be concluded that a Mexican food restaurant in Sydney is, by reason merely of such a similarity of names, connected with an overseas chain of Mexican food restaurants.
nTaco Company of Australia Inc; Taco Bell v Taco Bell Pty Ltd (1982) ATPR ¶40-303
nThis view of course accords, so far as it goes, with the appellants' primary argument that there is no actual or potential confusion and with the evidence which the appellants themselves adduced. Viewed objectively, the conduct of the Bondi company could not properly be described as containing or conveying a representation that there was any connection between the Bondi restaurant and the overseas Taco Bell chain.
n
nTaco Company of Australia Inc; Taco Bell v Taco Bell Pty Ltd (1982) ATPR ¶40-303
nThe Aust co won in its s 18 claim
nIt is inevitable that some members of the above-mentioned section of the public, who are unfamiliar with the actual operations of both the chain and the Bondi restaurant, already believe or will in due course believe that the Bondi company's restaurant is part of the chain. …We have already indicated our view that the conduct of the Bondi company in continuing to carry on its restaurant under its established name cannot properly be seen as the cause of any actual or likely misconception as to a connection between its Bondi restaurant and the Taco Bell chain.
nTaco Company of Australia Inc; Taco Bell v Taco Bell Pty Ltd (1982) ATPR ¶40-303
nThe cause of any such misconception is the use by the U.S. company of the name " Taco Bell" in connection with the Sydney operations of a chain of Mexican food restaurants in circumstances in which the U.S. company had no prior reputation in respect of the local use of that name and in which that name was, in respect of local operations, clearly associated with an established Mexican food restaurant at Bondi. Such conduct by the U.S. company is misleading or deceptive or is likely to mislead or deceive within the meaning of the section.
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nMisleading and deceptive conduct s 18 ACL
nPinky’s Pizza Ribs on the Run Pty Ltd v Pinky’s Seymour Pizza and Pasta Pty Ltd (1997) ATPR ¶41-600 – existing Seymour restaurant (Pinky’s Pizza and BYO Restaurant). Then Melbourne chain Pinky’s Pizza Ribs restaurant opened in Seymour and sought to prevent the existing restaurant from using the name Pinky’s Pizza and Pasta. Seymour Restaurant – continuing its business did not contribute to public confusion.
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nMisleading and deceptive conduct s 18 ACL
nMcWilliams Wines Pty Ltd v McDonalds System of Australia Pty Ltd (1980) 49 FLR 455 text 307
Was the use of the name Big Mac by McWilliam’s Wines misleading and deceptive? – No.
nMisleading and deceptive conduct s 18 ACL
nSection 18 as a weapon for business
nAlthough s 18 was part of a consumer protection law, it is often used by commercial competitors against each other.
nSee Taco Bell and Mc Williams wines above and
nColgate-Palmolive Pty Ltd v Rexona Ltd (1981) ATPR 40-242 text 310 – Rexona claimed that its Aim toothpaste was 50-90% more effective, compared with Australia’s best known toothpastes, at reducing plaque build up in between brushing. The ad was misleading in breach of s52(1) (now s 18) because the evidence which Rexona relied upon was largely unpublished, and had not been verified by the dental profession.
nMisleading and deceptive conduct s 18 ACL
nExamples of misleading and deceptive conduct can be found on p 309 of the text.
nACCC v TPG Internet Pty Ltd [2011] FCA 1254 text 309
nBroadband advertised at $29.99 per month – misleading because it was conditional on signing up for a landline as well for $30 per month.
nOffering gifts or prizes s 32
A person must not, in trade or commerce, offer any rebate, gift, prize or other free item with the intention of not providing it, or of not providing it as offered
nExamples from the ACCC website of conduct in breach include:
nhttp://www.accc.gov.au/publications/advertising-selling/advertising-and-selling-guide/advertising-selling-and-promotional-techniques/advertising-techniques
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nExample: A retailer offers customers the chance to enter into a draw to win a prize when they spend over $50 in one transaction. However, the business adds a fictitious name to the draw. The retailer publicises that the fictitious person won the draw. The result is that the prize offered is not actually given to any of its customers. This practice is prohibited by law.
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nBait advertising s 35
nS 35 (1) prohibits the practice of advertising goods or services at a particular (usually exceptionally low) price in order to attract customers if the supplier is aware that it will not be able to supply the goods/services in reasonable quantities for a reasonable period.
nS35 (2) places an obligation on the supplier to ensure that reasonable quantities of the good/service are available for a reasonable time.
nSee Reardon v Morley Ford (1980) 33 ALR 417 (def dealer advertised particular Ford model for sale at $6,600 plus on-road costs. When prospective purchaser attended showroom – told that only one had been available and it was sold > held breach of forerunner to s 35)
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nUnfair contract terms
nThe ACL provides that a term within a consumer contract (refer to the definition of consumer contract discussed earlier) is void if the term is unfair and the contract is a standard form contract, eg contracts for air travel, car rental or mobile telephones, where there is no room for bargaining and the terms are imposed by the stronger party
nFrom 12 November small businesses employing less than 20 people including casuals will be protected by these provisions.
nS 27 provides a series of tests that the court can apply to decide if a contract can be described as ‘standard form’.
nthere is a presumption that a contract alleged to be ‘standard form’ is such unless the party relying on it proves otherwise.
nhttp://www.accc.gov.au/business/business-rights-protections/unfair-contract-terms
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nUnfair contract terms
ns 24 describes the characteristics of an unfair term.
nit would cause a significant imbalance in the parties' rights and obligations arising under the contract; and
nit is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term: and
nit would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
ns 25 provides a “shopping list” of what amounts to unfair terms.
nIf the contract will work despite the avoided term, the balance of the contract continues to be binding.
nJetstar Pty Ltd v Free [2008] VSC 539 text 312
代写BUSN1101 Australian Consumer Law
nSpecific false representations s 29 (1) (a) (formerly s 53 TPA)
nFalse representations that goods are of particular standard, quality, value, grade, composition, style, model, particular history or previous use
nACCC v CI & Co Pty Ltd [2010] FCA 1511 text 315
nEggs labelled as free range were actually from caged hens.
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nSpecific false representations s 29 (1) (b)
False representation that services are of particular standard, quality, value or grade
ACCC v Jetplace Pty Ltd [2010] FCA 759 text 315.
An internet dating service represented that all the profiles on the site had been created by visitors when it had created 1371 of them itself.
nSpecific false representations s 29 (1) (c)
nFalse representation that goods are new – the word new may have several possible meanings
Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 25 ALR 91 text 316
considered possible meanings of “new” dependent on circumstances eg in relation to a car new could mean:
nNot previously sold by a retailer
nNot a superseded model
nNot excessively used
nOf recent origin
nSpecific false representations s 29
nSection 29(1)(d)
-(d) make a false or misleading representation that a particular person has agreed to acquire goods or services: BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 3) [2009]FCA 1087 text 316 - false representation that it was supplying shipbroking services to a named company.
nSection 29(1)(e)
n(e) make a false or misleading representation that purports to be a testimonial by any person relating to goods or services
nSection 29(1)(f)
n(f) make a false or misleading representation concerning:
n(i) a testimonial by any person; or
n(ii) a representation that purports to be such a testimonial; relating to goods or services
nSpecific false representations s 29 (1)(g)
nRepresentations that goods have sponsorship, approval, performance characteristics, accessories, uses or benefits that they do not have s 29 (1) (g)
Parish v World Series Cricket Pty Ltd (1977) ATPR ¶40-040 – ACB prevent WSC from using “test” because it implied an association with the ACB version of the game (the battle between Kerry Packer (World Series Cricket) and the Australian Cricket Board was dramatised in the mini-series Howzat)
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nSpecific false representations s 29 (1) (h)
nSection 29(1)(h)
-making a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation.
-Australian Competition and Consumer Commission v Refund Home Loans Pty Ltd (No2) [2010] FCA 237 text 317
-Defendant made a false representation that it had ACCC approval for conduct relating to franchisees.
nSpecific false representations s 29 (1)(i)
nFalse or misleading representations with respect to the price of goods or services
nTPC v Cue Design Pty Ltd (1996) ATPR ¶41-475 - dual price tags – the court found it was misleading to have a price tag indicating a price reduction ($52 was crossed out and $39 written in its place) when the goods had never been offered for sale at the higher price.
nACCC v Dell Computers Pty Ltd (2002) 126 FCR 170 text 317
nCompulsory $99 delivery charge mentioned in small print only
nSpecific false representations s 29 (1) (j)
nFalse or misleading representations concerning the availability of facilities for the repair of goods or of spare parts for goods
代写BUSN1101 Australian Consumer Law
