Studmaster Pty Ltd was a landlord that owned a shopping composite in Bourke Street. Melbourne. Mrs Tran operated the “Vietnamese Lunch Box” mercantile establishment in the nutrient tribunal. She had small ability to talk or read English. which the representatives for Studmaster knew approximately. Studmaster proposed a three twelvemonth reclamation of her rental at $ 48. 000 per annum plus GST for the first twelvemonth and CPI increases in the 2nd and 3rd old ages.
A representative for Studmaster told Mrs Tran that:
• “We believe the new rent is really sensible and below the market value” ; and • “The rent is lower than the rental paid by other renters in the Food Court”
Both statements were wrong. Studmaster gave Mrs Tran 7 yearss to hold to the rental reclamation. but provided no ground for giving this limited clip frame. Advise Mrs Tran as to whether Studmaster Pty Ltd has breached the Competition and Consumer Act 2010 ( antecedently referred to as Trade Practices Act 1974 ( Cth ) ) and if so. her available redresss.
Issue: Were the statements misdirecting or delusory in breach of the Australian Consumer Law?
• Section 18. Agenda 2 to the Competition and Consumer Act 2010 ( Cth ) ( or instead you can state Section 18 Australian Consumer Law which is the rubric for Schedule 2 ) • Section 4 ( “presumption of misleading” )
• Eveready Australia Pty Ltd v Gillette Australia Pty Ltd OR Taco Company of Aust Inc v Taco Bell Pty Ltd ( “objective test” )
• Explain which of the statements was an sentiment and why the jurisprudence presumes it was misdirecting ( Internet Explorer was at that place any footing for doing the sentiment? ) • Apply the nonsubjective trial to the 2nd statement made by the Studmaster representative. In peculiar: ( what will be the mark market and why would a sensible individual from that mark market be misled or deceived? )
Issue: Did Studmaster engage in conscienceless behavior?
• Section 22 Australian Consumer Law
• Miller V Gunther & A ; Ors OR Commercial Bank of Australia V Amadio
• Explain why subdivision 21 and non subdivision 20 applies
• Explain why Studmasters’ behavior was in trade or commercialism • Explain what the behavior was and why it was conscienceless. with mention to the factors listed in subdivision 22 of the Australian Consumer Law. In peculiar: o The superior bargaining place of Studmaster
o Ability to understand paperss
O Undue force per unit area and tactics used
Issue: Did Studmaster do a false or deceptive representation?
• Section 29 ( 1 ) ( I ) Australian Consumer Law
• Explain why the statements were false sing the monetary value of a service. in peculiar observing what the relevant monetary value is and what the service is in the inquiry.
Issue: What are the redresss?
Law: Section 236 ( amendss ) ; Section 232 ( injunction ) ; Section 243 ( other orders )
• Explain the redresss that Mrs Tran would be seeking as you are reding her and non the ACCC. In peculiar: O Explain what an injunction would make and why Mrs Tran would desire this redress ; o Explain when Mrs Tran would be entitled to amendss and how amendss would be calculated o Explain when Mrs Tran would desire to change the contract and what the fluctuation would be o Explain when Mrs Tran would desire to invalidate the contract and what the consequence of invalidating the contract would be Decision:
• Studmaster has engaged in misdirecting and delusory behavior. conscienceless behavior and made a false or deceptive representation in regard of the monetary value of a service. Mrs Tran can seek a assortment of redresss including amendss. all right and injunction.
Note to pupils: Facts based on the determination of ACCC v Dukemaster Pty Ltd
Waverley Woollen Mills Pty Ltd ( “WWM” ) sells jumpers under the “Work Wear” trade name. WWM labelled jumpers as a “Product of Australia” . Fibre for the jumpers was spun in Australia. but the jumpers were woven in Vietnam and imported into Australia. Advise ACCC.
Issue: Has Waverley Woollen Mills breached the Australian Consumer Law?
• Section 18 ( “misleading or delusory conduct” )
• Eveready Australia Pty Ltd v Gillette Australia Pty Ltd OR Taco Company of Aust Inc v Taco Bell Pty Ltd ( “objective test” ) • Section 29 ( 1 ) ( K ) ( “false or deceptive representation refering the topographic point of beginning of the goods” ) • Netcomm ( Aust ) V Dataplex Pty Ltd ( p 616 of text edition )
• Explain what “place of origin” agencies with mention to the treatment at the underside of p 615 top of p 616 of the text edition • Explain why the label “product of australia” was misdirecting as to the topographic point of beginning of the jumpers. • Apply the nonsubjective trial to explicate why the woolen jumpers were misdirecting under subdivision 18. In peculiar place the mark market and why a sensible individual would be misled about the label “Product of Australia” .
Issue: What are the redresss?
• Section 232 ( injunction ) ; Section 246 ( disciplinary advertisement ; direction to set about preparation ) ; Section 151 ( mulct ) ; Section 218 ( tribunal enforceable projects )
• Explain that the redresss can be covered in tribunal enforceable projects or ordered by the Court. • Explain what an injunction and disciplinary advertisement would make • Explain the maximal punishment of a mulct for WWM and why the ACCC can prosecute a mulct.
WWM has made a false representation refering the label of the woolen jumper which enables the ACCC to prosecute a assortment of redresss.
New Roofs Ltd. a company which renovates tiled roofs for houses. employed Jack as their salesman. Jack attended the place of Colin Farrell to advance New Roofs Ltd’s roof redevelopments. Colin was a 75 twelvemonth old disablement pensionary. enduring from terrible arthritis and sightlessness in one oculus due to his war service in Vietnam. Colin’s disablements prevented him from composing. and he found it hard to read. Jack was cognizant of Colin’s medical conditions. Jack filled in the roof redevelopment contract on behalf of Colin. Jack did non urge that Colin acquire independent advice. Jack’s behavior towards Colin was overbearing as he wished to do the sale so that he would win “Salesperson of the Month” .
Issue: Did New Roofs Ltd engage in conscienceless behavior?
• Section 21 Australian Consumer Law
• ACCC V Lux Pty Ltd
• Explain why subdivision 21 applies and non subdivision 20
• Explain what the behavior was and why it was conscienceless with regard to the conscienceless factors in peculiar:
o Bargaining strengths of provider and consumer:
o Understanding of any paperss associating to the supply of services:
o Whether undue influence or force per unit area exerted or unjust tactics used against the consumer:
Issue: What are the redresss?
Law: Section 232 ( injunction ) ; Section 243 ( other orders )
• Explain what an injunction would make in this instance
• Explain when Colin would desire to invalidate or change the contract and what the consequence of invalidating the contract would be or instead changing the contract • Explain when Colin would desire to obtain a refund for money paid to New Roofs Ltd
New Roofs Ltd engaged in conscienceless behavior which entitles Colin to assorted redresss including elimination of the contract and refund of any money paid for the roof redevelopments.
Question 4 ( SHORT ANSWER )
Cheap-as-chips Pty Ltd sold braces of socks labelled “Pure Cotton” for $ 1. 99 each. The socks. in fact. were composed of merely 77. 9 % cotton. the balance of the sock being made from polyester.
Answer: Breach s. 29 ( 1 ) ( a ) – sing the composing of the sock. as Cheap-as- french friess Pty Ltd. a company has commercially supplied ( sold ) the goods and has falsely represented that the goods are of a peculiar composing. The socks are said to be “Pure cotton” being 100 % cotton. whereas the socks are merely composed of 77. 9 % cotton. Besides a breach of s. 18 as the company in selling the socks has advertised them as “pure cotton” so that the ordinary sensible consumer ( Taco Bell Case ) would believe the socks are manufactured of 100 % cotton.
Question 5 ( SHORT ANSWER )
Rand Ltd sold reckoners with a booklet saying that reckoners carried a “one-year warranty” . In existent fact the guarantee period was merely 90 yearss.
Answer: Breach s. 29 ( 1 ) ( m ) as Rand Ltd. a corporation has in selling the goods made a false representation refering the being of the guarantee. Rand Ltd represented that there was a 12 month guarantee. when there was non. The guarantee merely exists for 90 yearss. Again. besides consider breach of s. 18 as the ordinary sensible consumer ( Taco Bell Case ) would see that that the guarantee period was of greater continuance than it really was.
Question 6 ( SHORT ANSWER )
Barbara wanted to clean her private road by taking soil and oil discolorations. She obtained a merchandise called “Eradicate” manufactured by No Stains Ltd from her local hardware shop. The instructions on the Eradicate bottle did non warn against exposing the merchandise to direct sunshine. Barbara poured the merchandise over her private road. Exposure to the sunshine caused a chemical reaction making an acidic surface over the private road. Barbara was injured when her pess were severely burned.
Answer: No Stains Ltd has breached subdivision 138 ACL by fabricating a faulty merchandise doing hurt to Barbara. The defect is the failure to supply any instructions or warnings on the merchandise sing exposure to sunlight would amount to a safety defect ( s 9 ACL ) . The maker should hold known that merchandise would be used indoors and out-of-doorss for cleansing intents ( instance: Glendale Chemical Products Pty Ltd v ACCC ) .