A holiday package includes transport and accommodation and is advertised and promoted by the tour operator for the purpose of selling it. Discover Australia is one of the popular and recognised tour planning company that provides holiday package at a discounted and reasonable rate to the customers. The Australian Consumer Law governs the interests of the consumers and protects their interests. In this regard, a holiday package company needs to disclose all the necessary information to the consumer as per the Australian Contract Law (Cartwright 2016). The key information provided in the brochure are that the company provides various holiday package and has customized and published a brochure to achieve the consumer satisfaction. The brochure claims that it is the full value package for 6 days holiday that includes the flight and accommodation booking along with the complementary daily breakfast, lunch, and dinner. This is a holiday package for Australia that offers some exclusive discounts and bonuses. The package includes low rate of room and airfares. Extra tours and extra nights can be added to the package at a special discount if the party requires. It offers two ranges of accommodation facilities, which is deluxe or good standard. The deluxe hotels have superior facilities with first class services and stylish rooms. Whereas the good standard hotels provides comfortable rooms and friendly services. This holiday package brochure facilitates car hires, which also offers safety assistance. Various types of packages are offered at a low rate, such as, the self-drive package, train packages, all-inclusive and other packages (Discoveraustralia.com.au 2018). As the Australian Consumer Law and Contract Law regulates the relationship and conducts of the consumer in this respect, therefore, Discover Australia should provide their services in accordance with the provisions of the said Acts.
Representation is referred to the written facts of the contract, therefore the representations of a contract must be correct and true. A party providing false representation shall be liable for damages under the law. Contract law has provided a framework to regulate the enforceability of the terms of the contract and also provides the limitation of actions. In this respect, the Discover Australia in their holiday brochure has made representation in terms of the tour plans and the places. It provides the details of the places that are to be visited in the trip with the price ranges and also provides some images in their brochure. The brochure represented the relevant charges for their various services. The brochure specifically defines that the packages are all-inclusive. As per the Australian Contract Law, the parties should intend that the representations are promissory in nature. In the case of Ellul v Oakes (1972) 3SASR 377, it was established that Ellus had purchased the property from the Oakes relying on the representations made in the form of the property agent, which was signed by Oakes. The court ruled that the Ellul and Oakes must have intended that the representations of the contract are promissory in nature, hence Ellus may sue Oakes for breach of contract if the property was not served to him. Therefore, Discover Australia is bound to fulfil all the representations made by the company on entering into it. Both the parties are bound to each on entering the contract to carry out their obligations. The services mentioned in the brochure are the representations made by the company to enter into a legal relation with a party. Discover Australia is bound to provide their services and the customers are obliged to pay the respective charges mentioned in the brochure.
In a contract of services, a warranty is the assurance about the quality of services to be provided by one of the parties to another. They are the minor contractual terms. In other words, a warranty is a voluntary promise that is offered by the person who is providing the service. On the basis of the provisions stated in the brochure of Discover Australia the customers may believe that the prices in the advertisement are accurate. The offers in the bonus voucher books should be made available to them in respect to the booking of the customers. They also offer a free transport to airport which should be facilitated to them. For car and campervan hiring services, the company has claimed that the vehicles are properly maintained and cleaned, with 24 hours roadside assistance. The prices advertised includes the starting prices for the low season and may be subjected to a seasonal surcharge. Additional conditions may apply to avail the special bonuses listed. There are certain conditions regarding booking and cancellation, which shall be applied to all bookings.
The Australian Consumer Law protects the interests of the consumers of the goods and services against any unfair trade practice and provides a remedy to the consumer in case of any breach of consumer law. Section 29 of Schedule 2 of the Competition and Consumer act 2010 provides that a contract that a contract permitting only one party, but not the other one, to terminate or limit the performance of the contract, to vary the terms of the contract, to assign the contract to another without the consent of other party to another, impose an evidential burden one party with respect to a proceeding related to the contract, or limit the right of a party to sue another would be considered as a false or misleading representation. The Trade Practices Amendment Act 2001 has referred misleading conduct to an activity of a person within a trade or business that is deceptive or misleading. Part 2-2 of this Act explained unconscionable conduct by stating that a person should not be engaged in a trade or business, whose activities are unconscionable. Part 2-3 of this Act further states that in presence of unfair terms a contract would be invalid. In Chapter 3 of the Act bait advertisements has been identified as an unfair trade practice. Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 deals with the gift, rebate or prize under Section 12DE (1) (b) and paragraph 22.
Analysing the brochure, it can be observed that it was required for the company to disclose the mode of payment by the customers for purchasing the travel packages, which has not been specifically mentioned in the brochure. No specific method of refund has been provided in the brochure, which can turn out to be a misleading representation in certain situation. Additionally, the liabilities and obligations of the company and the customer is not provided in the brochure. Discover Australia offers $500 value discount and bonus in the destinations but does not mention any time limit for the validity of the discount. In the case of Holiday Shoppe Brochure Advertisement [2006] NZASA 95 the Court decided that advertisement must not include a representation, whether visual or actual, which implies any claim that is deceptive or misleading, or likely to mislead or deceive the consumer or abuse or exploit the lack of knowledge of the customers. Any such business practice shall be considered as unfair.
In order to limit or exclude the liability of a party, a clause may be incorporated in a contract, but such a clause should not be designed in a way to gain any unreasonable advantage from the contract. Section 64A of the Australian Consumer Law declares any term of a contract to be void, which is purported to exclude, modify or limit the right of a consumer to rely on the customer guarantee regime. As decided in the Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500, the Court may interpret such clause like any other clauses of the contract, if it is incorporated properly in the terms of the contract.
Analysing the holiday package brochure by Discover Australia, no specific exclusion or limitation clause can be found. Limitation or exclusions from liability has been clearly stated in the form of representation by the company in the contract to avoid any claim for misrepresentation. However, the company reserves their right to make any changes in the prices of the packages without any notice, limiting the right of the customers to get a prior notice of the changes. This should be specifically communicated to the other party at the time of entering into the contract. In this regard, it was held in the Mikhail Lermontov or Baltic Shipping Company v Dillion [1990] 1 Lloyd’s Rep 579 and (1993) 176 CLR 344 that the company had misled the consumers with their brochure and ordered the company to compensate the victim.
Therefore, from the above analysis it can be stated that the brochure developed by the Discover Australia meets the requirements of the Australian Contract Law, Consumer Law and the Trade Practices Amendment Act.
References:
Australian Consumer Law
Cartwright, J., 2016. Contract law: An introduction to the English law of contract for the civil lawyer. Bloomsbury Publishing.
Competition and Consumer act 2010
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500
Discoveraustralia.com.au. 2018. [online] Available at: https://www.discoveraustralia.com.au/australia-specials-brochure.pdf [Accessed 9 Nov. 2018].
Ellul v Oakes (1972) 3SASR 377
Holiday Shoppe Brochure Advertisement [2006] NZASA 95
Mikhail Lermontov or Baltic Shipping Company v Dillion [1990] 1 Lloyd’s Rep 579 and (1993) 176 CLR 344
Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010
Trade Practices Amendment Act 2001
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