Consumer Law Of Australia For LexisNexis Butterworths

Issues

Describe about the Consumer Law of Australia for LexisNexis Butterworths.

An invitation of treat is given by Ogie’s Car Sales Pty Ltd for selling a one year second hand car. The offer is given in the price of $25,000. The offer was accepted by Lara at a rate of $22,500 cash. A sale document has been created and written contract took place between Lara and Ogie. The issue raised that warranty card was not given by Ogie to Lara. In the advertisement 12 months warranty was mentioned but the warranty card was not given her when she was buying the car. Here the contract is formed by warranty is not given, so obligation of contract takes place in this case. The question arises:

• Is this a breach of rules of the contract?
• Is Ogie violating the rules of consumer rights act in this case?

As Australian Consumer law (ACL) which fall under Schedule 2 of the Competition and Consumer act 2010, Ogie has done unfair practice of business. He has breached the rule of part 5 of Trade Practices act 1974 (Cth). Under section 18 of Consumer act, it is mentioned that when a product is sold by a seller to a buyer than he should provide the warranty papers, bill receipt and mention the condition of the product which Ogie has not done while selling the car to Lara, which is also breach of contract law[1]. The contract is valid because invitation of treat, offer and acceptance has formed in the contract between an offeror and offeree but condition of the BMW car was not stated properly and warranty is not provided. Both conditions and warranty is important to be stated while forming contract which is not stated properly by Ogie. So it can be said the contract is not under consideration and Ogie contract will fall under unconscionable conduct which can be declared by the court if Lara files case against Ogie for breaching the rules of Consumer Law[2]. It can be said that the customer is misrepresented by the seller by selling a BMW in high rate without any bills and warranty card. The agreement cannot be proved as enforceable under Australian Contract law because of missing of the terms, conditions and warranty of the product. But Lara should have followed the conduct of Consumer rights act before buying the car and she should have asked for the bill and the warranty card which is her carelessness[3]. The court can raise question in this conflict.

Rules

For example, Oscar chess Ltd v Williams’s case can be mentioned here. In this case, the owner of a second hand car (Morris Minor) tends to sell the car stating to a car dealer that it is a 1948 model. The selling contract took place between the seller and the dealer but later the dealer came to know that the car is 1939 model. For that reason the dealer sued the seller but the court said it was the dealer’s fault that he has not checked the condition before as he was expertise in car. So the contract is not enforceable because the condition of the car is of mentioned here even misleading act took place which the seller did with the buyer. This case is similar to the case of Lara and Ogie at some extent because the victim is misleads because of their own carelessness and the selling contract is not enforceable in both the case.

The contract is not enforceable because of lack of presence of the elements, terms and conditions and misleading has done by the seller (Ogie) while selling the car to Lara. In a valid contract there is offer, acceptance, legal intention, capacity, considerations, terms, conditions and warranty. Offer and acceptance after invitation of treat has made in this contract but in this contract terms, conditions and warranty is missing. As per rule of part 5 of Trade Practices act 1974, commercial trade procedures are not followed by Ogie properly which is breach of Fair Work Act. As per Trade practice act, the rules of commercial programs and method of selling the car by providing appropriate rudiments are not given by Ogie to Lara[4]. For that reason she can sue Ogie under Consumer rights act.

Conclusion

In this case breach of rules of Consumer Competition Act, Contract Act and Trade practice act of Australia has done because the seller did not maintain all the rules of a contract and for that reason the contract is not enforceable under law[5].

Lara bought a second hand BMW car from Ogie’s Car Sales Pty Ltd at the rate of $25,000. A sales document was made when the selling contract was made between both of them but all the necessary rudiments are not mentioned here. The problem occurs after Lara bought the car. After three months it was identified that the car was slipping out of the gear and for servicing it took $2,500. Even it was found by the mechanic that the car can run 175,000 km and not more than that. Here Lara had to confront with the problem as she was misrepresented by the seller (Ogie). The question arises:

• What should be the remedies taken by Lara in this case?
• Is Ogie totally guilty?
• What rights can be claimed by Lara from Ogie?
• What should be the penalty which Ogie has to give to Lara?

Application

According to Competition and Consumer Act 2010 unfair practices in business is not allowed. As per section 18 of Australian Securities and investment Commission, the federal court can punish Ogie if the Plaintiff (Lara) sues Ogie. As per section 52 of Trade Practice Act, Ogie has not maintained the appropriate rules of business in the contract. Ogie has sold the second hand car which has fault[6]. He did misrepresentation by doing fraudulence with the consumer (Lara). As per misrepresentation act 1922 the court can order to give penalty by Ogie to Lara or return back his money because he has done fraudulence with Lara[7].

For example, case like Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 which is related with misleading of deceptive conduct can be described here. The company’s foreman wrongly misguided a building worker for that reason the building worker is injured. The foreman did deceptive conduct by breaching the rules of sec 18 of Trade practice act. Under sec 52 of Trade commerce act the worker’s family can claim monetary compensation in this case because the worker was misrepresented by the foreman[8].

As per Consumer and Competition Act 2010 Lara can claim monetary compensation or return back of money from Ogie. According to Consumer rights Act or Consumer Protection Act Lara can ask compensation from Ogie. As per Section 232 of Consumer rights act injunctions is ordered by court with compensatory orders. The plaintiff or sufferer can ask compensation in that case[9]. A consumer has rights to ask for the guarantee from the seller before buying any product but Lara did not do that and accepted the odder and become the victim of misrepresentation. Ogie will be punished under criminal conduct for breaching the consumer rights act.

As per ACL Regulations of part 6 and 7 of Competition and Consumer regulation 2010, when a sales agreement is done a seller has to assure that the agreement is not unsolicited; warranties and repair notice should be provided by the seller to the consumer; and other rights of payment should be described. But Ogie has violated all the ACL regulations and misrepresented Lara by selling second hand car which is defected and Lara has to invest more amounts for servicing the car. Lara was running loss in this case. It was Ogie’s liability to do servicing of the car but he did not do that.

As per chapter 3 of Australian Consumer law false misleading is prohibited by ACL for suppling unsolicited goods. As per chapter 4 of ACL Ogie has done criminal offense. As a remedy Lara can ask for the refund, repair and replacement from Ogie. If she sues Ogie (defendant) under consumer protection acts than he has to give the refund back to Lara (plaintiff). Even she can state all the rights of Consumer rights act and she can clarify at front of the court that how Ogie mispleaded her and how she is running financial loss because of buying the product from the market. As per section 232 of Consumer Rights Act, the remedy can be asked by Lara from Ogie[10].

Conclusion

In this case breach of Consumer law has occurred which is done by the defendant against the plaintiff. The consumer competition act’s rules are also breached by the seller and for that reason the buyer has to face various problems. Misrepresentation has also occurred and valid contract is also not made between both of them. All the remedies with proper application has also mentioned with various legal consideration to solve the case of Ogie.

Radan, Peter and John Gooley, Principles Of Australian Contract Law (LexisNexis Butterworths, 2009)

Steinwall, Ray, Trade Practices Act 1974 (LexisNexis Butterworths Australia, 2010)

Steinwall, Ray, Annotated Competion And Consumer Act 2010 (LexisNexis Butterworths, 2011)

Vout, Paul T, Unconscionable Conduct (Lawbook Co, 2006)

Legislation – Australian Consumer Law (2016) Consumerlaw.gov.au <https://consumerlaw.gov.au/the-australian-consumer-law/legislation/>

The Australian Consumer Law (2016) consumerlaw.gov.au <https://consumerlaw.gov.au/files/2015/06/ACL_framework_overview.pdf>

1Legislation – Australian Consumer Law (2016) Consumerlaw.gov.au <https://consumerlaw.gov.au/the-australian-consumer-law/legislation/>.