Whether the transactions which have taken place are legally entitled to be subjected to the provisions of the Australian Consumer Law.
Whether a person is a consumer or not depends upon the type of transaction which has been entered upon into by the student. The meaning of a consumer has been given out by ten provisions of section 3 of the CA. the section states that a person would be considered to have purchased the goods in from of a consumer if the amount which is paid for the goods is not exceeding $40000, the ordinary nature of the goods which have been purchased is for a domestic, personal or householder use or the goods is a trailer or vehicle which has been purchased for transporting goods on the public roads. The section is not applicable if the person intends to resupply the goods, use them in trade and commerce for producing other goods or repairing other goods.
In the given situation it has been notified that Roberta has purchased shoes worth $60. Shoes are usually for personal use. Thus in relation to the shoes she is a consumer under section 3
Further Roberta has purchased a pasta maker which has turned out to be a popcorn maker for a price of $80. In the situation pasta maker is for domestic use and its price is less than $40000 and thus Roberta is also a consumer in this situation.
In addition Roberta has purchased an old fashioned styled record turntable which is generally of a household use and its price is $250.00. Thus as the price of the goods is less than $40000 and it is a domestic good Roberta is a consumer.
In addition these goods have not been purchased to resupply the goods, use them in trade and commerce for producing other goods or repairing other goods. Thus Roberta is a consumer under the Australian Consumer Law provided by Australian Competition and Consumer Act 2010 (Cth) schedule 2.
Roberta is a consumer in relation to all three purchases
Issue
Whether any implied guarantees as provided by the ACL have been violated by Myers Stores Ltd in relation to the purchases made by Roberta
Rule
Implied guarantees are provided by the ACL in order to provide rights to the consumers who indulge in procuring goods. The provisions for implied guarantees have been stated out through section 51-59 of the ACL as consumer guarantees. These guarantees include guarantee to title, undistributed possession, undisclosed securities, acceptable quality, fitness for a disclosed purpose, and supply by description, sale by sample or demonstration model, repairs of spare parts and express warranties.
However in the given situation the relevant consumer guarantees which needs to be discussed includes section 55 which is related to guarantee in relation to fitness for a proper purpose, section 54 which is in relation to goods being of an acceptable quality and section 56 in relation to supply of goods through the use of description.
It has been provided through the provisions of section 54(1) that where goods have been supplied by a person in trade of commerce to a consumer there is a guarantee that the goods must be of an acceptable quality unless the goods have been purchased via an auction. Goods are to be deemed as being of an acceptable quality where it is fit for the purpose for which they have been supplied, have an acceptable finish and appearance, do not have defects and are durable and safe in the eyes of a reasonable consumer who is aware of the condition and state of the goods as per 54(2). In relation to subsection (2) the relevant matters include the nature of the goods, the price, statement or label, representation or any other relevant situation as per 54(3). Under section 54(6) and 54(7) the goods will not fail section 52(1) if the consumer did not take reasonable step to take care of the goods or the consumer did have knowledge about the defect prior to purchase.
It has been provided through the provisions of section 55(1) that where goods have been supplied by a person in trade of commerce to a consumer there is a guarantee that the goods must be fit for the purpose which have been represented by the suppliers. Under section 55(2) a disclosed purpose is defined as a particular purpose for which the consumer has acquired the goods and he has by implications or expressly notified the supper or the person with whom negotiations had been carried out his needs. The section is not applicable in situation where there has been no reliance on the part of the consumer on the information provided by the supplier or the consumer relied unreasonably.
It has been provided through the provisions of section 56(1) that where goods have been supplied by a person in trade of commerce to a consumer there is a guarantee that the goods must be in compliance with the description which had been provided in relation to the goods. It has been further provided through the provisions of section 56(2) that the supply of goods is not affected by the description even were the goods have been displayed for sale or hire.
In the given situation it has been provided through the case study that Roberta has purchased shoes worth $60. When she was purchasing the shoes it had been expressly notified by her to the sales man that she needs the goods for a particular purpose. Thus in the given situation the provisions of section 55 of the ACL will be applicable. Further it has been stated by the case study that the reason for which the shoes were purchased was that she wanted to use them for her tango dance lessons. It was represented by the seller that the goods were fit for the desired purpose. Roberta relied in the advice of the seller to purchase the goods. However the shoes were not fit for the purpose and they broke. The provisions of this section have been violated by the shop as the goods did not match the disclosed purpose by Roberta. The consumer guarantees which have been provided under this section have been violated by the store.
Through the application of section 56(1) of the ACL it can be further stated that the store has violated the guarantee when it comes to the pasta maker. The section states that where goods have been supplied by a person in trade of commerce to a consumer there is a guarantee that the goods must be in compliance with the description which had been provided in relation to the goods. However the pasta maker actually turned out to be a popcorn maker. Thus it does not correspond to the description as provided in the rack and the section is violated. It has been further provided through the provisions of section 56(2) that the supply of goods is not affected by the description even were the goods have been displayed for sale or hire. In the situation even though the paste maker were displayed for sale such provisions would be applicable as under section 56(2). Thus the store has violated the provisions in relation to section 56(1) by providing a wrong product.
It has been provided through the provisions of section 54(1) that where goods have been supplied by a person in trade of commerce to a consumer there is a guarantee that the goods must be of an acceptable quality unless the goods have been purchased via an auction. Roberta has purchased an old fashioned styled record turntable and its price is $250.00. In the given situation it has been provided that when the product was used considerable damage was caused to one of the records due to the needle. thus the goods are not of an acceptable quality as under section 54(2). Although the goods were on sale it would not affect the application of the section. Further Roberta did not have any knowledge about such defects prior to purchase and George did not damage the products thus subsection 54(6) and 54(7) will not apply.
The store has violated consumer guarantees against each of the three products.
Issue
The remedies which can be obtained by Roberta in relation to the breaches which has been identified in the above section
Rule
Provisions on relation to remedies with respect to breach of consumer guarantees are provided through the rules under section 260 and 261 of the ACL.
Whether the goods can be rejected or not is based on the facts that what kind of breach has been made by the seller. There are two types of breaches under the ACL namely major breaches and minor breaches.
It has been provided under the provisions of section 260 of the ACL that where a major failure has been made the consumer has the right to reject the goods. This may happen where a reasonable consumer would not have acquired the goods in relation to the quality of the goods under section 54 of the ACL, there is no resemblance in relation to the sample or description under section 56 of the ACL and the goods and the goods are unfit in relation to the disclosed purpose under section 55 of the ACL. In relation to the major breach a right is provided to the consumer that he may apply to the supplier for a refund or replacement of goods of the same type as desired. The consumer may also sue for damages incurred by using such goods.
It has been provided through the provisions of section 261 of the ACL that where there is a minor breach the consumer may not have the right to reject the goods. In this situation the consumer may get the goods repaired, get the goods replaced or get a refund in relation to the goods. Further goods cannot be rejected by the consumer where the goods have been destroyed or disposed of by reasons other than the defect. The goods have been damaged due to abnormal use.
Application
In the given situation it can be stated that on all three occasions a major breach been indulged into by the store under section 260 as they have failed to provided Roberta with shoes which are fit in relation to the disclosed purpose, pasta maker which has resemblance in relation to the sample or description and old fashioned styled record which was supposed to be of an acceptable quality. Thus Roberta has the right to reject all three goods.
Roberta has the right to reject all three goods under section 260 of ACL
Issue
Does the exclusion clause incorporated by the store has any legal effect
Rule
Section 29 of the ACL expressly states that any person or company which makes an attempt to exclude , restrict or modify the rights and implied guarantees under the ACL would be libel for prosecution for indulging in such actions. in addition I has been provided through the provision that the clause will have no legal effect as provided under the provisions of section 64 off the ACL
Application
It has been stated by the case study that the store has made an attempt to incorporate a term into the contract with the consumer which states that “No Refund or Exchange will be given for items on sale or on special.” This term is contrary to the rights provided by the ACL in relation to the implied warranties. Thus the provisions of section 64 have been breached and the clause would have no legal effect. For the same reasons the provisions of section 29 have also been breached and the store is liable for prosecution.
Conclusion
Thus it can be provided through the above discussion that the clause will have no legal effect and the store is liable for prosecution.
Referencee
Australian Competition and Consumer Act 2010 (Cth) Schedule 2
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