CON | CPA

Question 1

Discuss the prohibitions of section 48 of the CPA (9)

Answer 1

A supplier must not-
1. Offer to supply, or enter into an agreement to supply, any goods or services:
a. At a price that is unfair, unreasonable or unjust; or
b. On terms that are unfair, unreasonable or unjust.
2. Market any goods or services, in a manner that is unfair, unreasonable or unjust; or
3. Require a consumer, or other person to whom goods are supplied at direction of the consumer:
a. To waive any rights
b. To assume any obligations; or
c. Waive any liability of the supplier.
On terms that are unfair, unreasonable or unjust, or impose any such term as a condition of entering int oa transaction.

Question 2

When will a term be unreasonable/unjust?

Answer 2

1. If it is excessively one-sided in favour of any person other than the consumer;
2. The terms of the transaction or agreement are so adverse to the consumer as to be inequitable
3. The consumer relied upon a false, misleading or deceptive representation to his detriment
4. The transactions or agreement was subject to a term or condition and
   a. The term, condition or notice is unfair, unreasonable, unjust or unconscionable; or
   b. The fact, nature and effect of the term, condition or notice was not drawn to the attention of the consumer in a manner that satisfied the applicable requirements of s49 [consensus]

Question 3

What are the prihibited transactions, agreements, terms or conditions ito s51?

Answer 3

1. Defeat the purposes and policy of the Act
2. Mislead or deceive the consumer, or
3. Subject the consumer to fraudulent conduct.

Question 4

What must the court consider ito s51?

Answer 4

1. The fair value of the goods or services in question;
2. The nature of the parties to that transaction or agreement
3. The conduct of the supplier and the consumer
4. Whether there was any negotiation between the supplier and consumer, and to what extent
5. The extent to which any documents relating to the transaction or agreement satisfied the reqs of s22