Consumer Law Rights: Fitness Equipment Hire, Ski Wear Purchase, And Land Sale

Hiring Piloxing Equipment from Foxy Ladies Gym Supplies Pty Ltd

1.Issue: In the present case, Megan had entered into contact with Foxy Ladies Gym Supplies Pty Ltd (Foxy). The contract was a 13 page document and Megan had not read the document before signing it. Moreover, there was no discussion regarding the contents of the document, and Megan was happy to pay the monthly fee of $60 for hiring a piloxing machine. However, later on an e-mail was received from Foxy according to which the monthly hiring fee had been increased to $110. When Megan read the contract, she found that there were several unfair terms present in the contract. Under these circumstances, Megan wants to know the rights provided by ACL.

Rule: The unfair contract terms regime that is present in the ACL is applicable to the contracts created by the consumers of small businesses employing less than 20 people and when the contract is less than $300,000 in one year. The purpose behind the unfair contract terms provisions is that a contract of a standard form contract can be described as void if the court is of the opinion that search term is “unfair”. In this context, a standard form contract can be described as a contractor was prepared by one party or the supplier. No negotiations take place between the parties regarding the terms of such contracts. Therefore the party that has not prepared the contract document does not have any bargaining power regarding the contract. Such party can only accept the contract as it is or it may decide to refuse to enter the contract at all. Some instances of the consumer dealings that are included in these provisions comprise the contracts for telecommunications, gyms, travel, private education, motor vehicles and utilities. However, insurance contracts are covered by the Insurance Contracts Act, 1984 and they do not fall under these provisions.

Therefore, a term often contract can be declared as answered by the court if it can be established by a party that the terms present in the contract:-

Will result in creating a significant imbalance in the rights and obligations of the parties; and
The presence of such term is not reasonably necessary for protecting the legitimate interests of the party that is going to achieve an advantage under the term; and
The term would result in causing a detriment to the other party if such term was relied upon.

It is worth mentioning that all the conditions mentioned above (significant imbalance, not reasonably necessary and resulting in a detriment) should be present before a particular term can be described as unfair by the court. Some of the examples of an unfair term can be described as follows:

A term that allows only one party to a wider limit performance of the contract;
A term that allows only one party to end the contract; and
A term that penalizes only one party for a breach or extinction of contract and not the other party.

It needs to be noted that only the court has the power to decide if a particular term of the contract can be described as unfair. However this does not indicate that all the disagreements related with the unfair terms have to be decided by the court. Therefore it is always advisable to try to negotiate with the other party before starting legal proceedings.

Application: Unfair terms can be present in any type of consumer contract. It is also important that the parties should be careful in case of online contracts and such contracts should also be read carefully. In case the party does not understand something, a clarification can be sought from the supplier. Similarly, the parties should be careful if they are being asked to sign a very long document stretching into several pages. It is possible that when the agreement is not written in clear language, it may include even terms that can be inequitable. Actually, a confusing and long contract that contains vague and contradictory terms can be described by the court as unfair.

Purchasing Ski Wear and Skis from Ski with Us Pty Ltd

Conclusion: Under the circumstances, it can be concluded that the Australian Consumer Law provides the remedy to Megan against the unfair terms that are present in the contract.

2.Issue: The issue in this case is related with the presence of an exclusion clause that has been mentioned on the receipt given to Marie. It was mentioned on the receipt that the seller cannot be held liable for any loss or damage experienced by the purchaser howsoever caused.

Rule: Generally, the businesses try to exclude or limit their liability for the things that may go wrong by adding an exclusion or limitation clause in the contract. An exclusion clause is strictly interpreted by the courts. It is also necessary that such religion clause should be properly incorporated in the contract concluded between the parties. Similarly, if the attention of the other party was not drawn towards the presence of an onerous laws like an exclusion clause, there is a risk that because may not be enforced by the courts. Hence, it is very significant that all the terms and conditions of the contract have been brought to the notice of the other party and a chance should be given to the other party to accept or reject such a clause. Therefore by only printing terms and conditions those were not available, while the parties were negotiating the contract, may not be sufficient. In cases where an ambiguous seclusion clause is present or where the weaker party needs protection, the clause will be interpreted by the courts according to contra proferentum rule. This means that the clause will be interpreted is the party that wants to rely on it. It also needs to be noted that the goods and services supplied by a party also come under the provisions of that to the consumer guarantees provided by the ACL.

As a result, a term of the contract will be considered as void in view of section 64, Australian Consumer Law, if such clause present in the contract purports to restrict, exclude or modify the rights of the consumers to rely on the consumer guarantees. In this regard, section 64A, allows modification of rights under certain circumstances, as it allows the supplier to limit the remedies available to the consumer only if goods or services are of the nature that are not generally used for personal or household use.

Application: In the present case, the exclusion clause has been mentioned on the receipt given to Marie. Under these circumstances, it is clear that this clause was not mentioned by the parties were negotiating the contract. Moreover, it is also clear that this clause was not brought to the attention of Marie before the parties have entered into the contract. On the other hand, the law requires that a party can rely on an exclusion clause only if the class has been properly incorporated in the contract. Applause is considered to be incorporated in the contract if it has been brought to the attention of the other party before the parties have entered into the contract. Another thing that needs to be mentioned is that this clause tries to exclude the rights provided by the consumer guarantees mentioned in the ACL. However, the ACL provides that any term of the contract which seeks to restrict the rights of the other party to rely on the consumer guarantees as to be considered as void. On these grounds, and the president deserves it can be stated that the term mentioned on the receipt which provides that the seller cannot be held liable for any loss or damage suffered by the purchaser is void. Moreover, such term cannot be considered as a part of the contract that was concluded between the parties.

Buying Land from Golden Land Pty Ltd

Conclusion: Therefore the rights provided to the consumers by the statutory consumer guarantees mentioned in the ACL are available to Marie. These rights cannot be excluded by a party even if a term has been added in the contract to this effect. The law provides that such a term is void.

3.Issue: In this question, certain representations have been made by Golden Land Pty Ltd. in an advertisement issued by the company towards managing director, Jim. These advertisements were seen by many people including Juliette was recently got a new job in Melbourne. Therefore before purchasing the piece of land, Juliette asked Jim if it was sure that the railroad was going to be built near the land in the next three years. As mentioned in the advertisement. Therefore, Jim assured Juliet that they have good relationships with certain people in Victorian government and even if it has not been officially announced, but they are sure about it. Jim shows the land and tells Juliette that the prize have to be increased, because the company has to pay for national broadband network (NBN). Later on, Juliette also finds that the land does not have NBN connection and similarly the land was too contaminated for human habitation. Under these circumstances, it is clear that a misrepresentation has been made by the company. As a result, Juliette wants to know her rights provided by the Australian consumer Law.

Rule: Generally, manufacturers and suppliers use advertising for promoting their products. In some cases, the representations made by them can be too good to be true. Therefore in such a case, the actions of the manufacturers and suppliers can be considered as false and misleading that have been prohibited by various provisions of the ACL. The general provisions related with misleading than that are present in section 18 of the ACL. These provisions result in civil liabilities. At the same time, according to Part 3-1, ACL, several business practices have been limited by the law that are false and misleading and which may result in criminal as well as civil liabilities. Therefore,. It is worth mentioning that the ACL has been broken into civil liabilities that are mentioned in chapter 3 and criminal liabilities that have been mentioned in chapter 4. However, both the civil and criminal liabilities include the dealings that have been undertaken with the consumers as well as the businesses. However in the present question, we are mainly concerned with the consumer aspect of these provisions.

False or misleading representations: general provisions been mentioned in section 18 of the ACL, which are directed against the conduct of a manufacturer or supplier. The section can be described as a catchall provision and it is wide and general in scope. As misleading or deceptive conduct has also been presented by Part 2 and 3 of the ACL in a wide manner of section 18, and on the other hand, political practices have been prohibited by the provisions that have been mentioned in section 29 to 50. As a result, it is possible to apply section 18 to the conduct for which it is possible to escape liability under the provisions mentioned in the ACL.

Type of conduct prohibited by ACL: due to the reason that the false and misleading representation provisions mentioned in section 18 are related with conduct, it is significant that it should be outlined, which conduct the ACL makes reference to that has been mentioned in section 2(2), ACL. Therefore it has been provided that a reference to engaging in conduct can be described as a reference to doing or refusing to doing something, including the making of all giving effect to a provision of a contract or arrangement or arriving at a contract or arrangement or the request of giving or the giving of a covenant.

A significant aspect of section 18 is the interaction of this provision with section 29 of the ACL. NSA, whilst the liability has been imposed by section 18 regarding the misleading conduct that may take place in context of trade or commerce, section 29 has imposed Labadie on suppliers and manufacturers for false representations, as they are in a powerful position when it comes to knowing the particular goods or services. Consequently it is required by section 29 that if any information has been disclosed by the supplier of manufactured to the consumer it should be accurate.

While deciding if a representation can be described as misleading, the same test is applied by section 18 and 29 of the ACL. Even if the test is not been explicitly defined in section 18, and disregard origin can be found to future matters under section 4(1) really does mean mention that there are no reasonable grounds for making a representation if (i) the representation is made by a person regarding any future matter; and (ii) raise several rounds are not present false person to make the representations and for the purposes of this schedule, the representation can be considered as misleading.

Under the circumstances abortion may arise if a definition of the conduct that can be described and misleading or deceptive is not present and how such notion can be applied. According to the previous Trade Practices Act, and also in the ruling in Parkdale Custom v Puxu, delivered by Chief Justice Gibbs, some direction can be gain regarding what is misleading or deceptive. According to the interpretation of statute law and also the common law, it is the prohibition imposed on unfair conduct due to which a person is induced into error, as a result of the conduct in question. However, if the representation has been directed towards the general public, the test that can be applied in other to decide if the representation can be described as misleading is to see if any ordinary or reasonable person, to whom the representation has been made, is going to be deceived or misled by such representation or not.

In this regard, the High Court had stated in Campomar v Nike International that in the cases of representations made to the general public, there enters the reasonable or ordinary members of the class of prospective buyers. Even if a class of consumers can be expected to include a large number of persons, by isolating the reasonable or ordinary members of such class, an objective attribution is present of certain characteristics. In such a case where the persons related with the matter are not identified individuals to whom the misrepresentation in question was made or from whom the relevant fact, proposal or circumstances was withheld, but they are the members of a class to which the conduct in question was directed generally, it is required to isolate a representatives of such class by some criterion.

Moreover while deciding if an advertiser can be described as misleading. In the other provisions of section 29, in order to establish who represents the reasonable or ordinary individual as mentioned by the High Court in the above-mentioned case, the matters that may be included are Age, location, familiarity with the subject matter and the intensity of sophistication of the individual (an elevated standard of accuracy can be expected in advertising that is directed in favor of less sophisticated audiences like children). At the same time, it is also significant to be noted that the reasonable audiences have to be considered while making a determination regarding the fact that the representation can be described as misleading instead of the audience, whose reactions can be treated as fanciful or extreme.

Similarly it has been provided by section 30 of the ACL that it is an offense to make false or misleading representation related with the sale of land. Similarly in ACCC v Cadbury Schweppes Pty Ltd [2004] FCA 516, the court came to the conclusion that a misleading representation has been made by the companywide marketing a cordial when the company claims that it contained fruit extracts. While in reality, it did not. In this way, it becomes clear that it is an offense under the law to a news the other party to enter into contracts, on account of false or misleading representation. Generally, the law does not allow the manufacturers and suppliers to make false claims regarding anything that may be used for persuading a person to enter into a contract.

Application: After going through the applicable legal provisions and the relevant case law, it can be stated that the advertisement issued by Golden Land Pty Ltd has made a misrepresentation when it was stated by the company that Metro Railway is going to be built near the land in the next three years. The reality was that GL did not have any grounds to believe in the truth of the statement. Similarly, the managing director of GL, Jim also told Juliette that they have good relations with people in the Victorian government and as a result, they are aware of the fact that Railway is going to be built near the land, even if it has not been described officially. After listening about the Railway, Juliette becomes excited that she will be able to commute to CBD for work. Jim also encourages her that she will have a spacious home and a garden and also quick train ride to work.

GL also tells Juliette that the price of the land has to be increased as the company had to pay for national broadband network to be connected to the land. Later on, Juliette finds out that the land did not have a NBN connection. Moreover, the land was too contaminated for human habitation.

Conclusion

Under these circumstances, the remedies provided by the ACL regarding misleading or deceptive conduct and the misrepresentations made by GL are available to Juliette.

Carter, J.W., 2006., Carter’s Guide to Australian Contract Law LexisNexis Butterworths

Carvan, J., 2015, Understanding the Australian Legal System, Thomson Lawbook Co. 7th ed.

Lockhart, C (2014) The Law of Misleading and Deceptive Conduct, 4^th ed, Lexis Nexis Butterworths

Miller, J., 2002, Getting into law, Butterworths Australia

Paterson, J., Robertson, A and Duke, A., 2016, Principles of Contract Law, Lawbook Co. 5th ed

Seddon, N (2013) Government Contracts, 5^th ed, Federation Press, 2013

Case Law

Barrick v Qantas Flight Catering Ltd (2007) 163 IR 207

Barto v GPR Management Services (1991) 33 FCR 389 at 393

Bunnings Group Ltd v Laminex Group Ltd (2006) 153 FCR 479

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594

Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169