Consumers

Question 1

Definition of a consumer:

Answer 1

“Person who acquires goods and services from a supplier” - Fair Trading Act 1987 (NSW)

Question 2

Trade Practiced Amendment (Australian Consumer Law) Act 2010:

Answer 2

Introduced changed dealing with unfair contract terms, new civil penalties and redress options for ACCC and ASIC

Question 3

Outline objectives of consumer law:

Answer 3

• establish guidelines of acceptable and unacceptable conduct for buyers and sellers eg. False advertising
• imply terms into contracts to help safeguard consumer interests eg. Merchantable quality
• provide information that will benefit all parties in commercial transactions eg. T&Cs
• encourage alternative dispute resolution particularly through mediation and conciliation
• provide remedies in disagreements

Question 4

Types of contracts: (SEISBU)

Answer 4

• simple contracts (oral/written)
  • oral: hard to enforce as they have an ‘implied’ intent, often incurs in misunderstandings
  • written: clearly identifies parties to contract, contractual terms, signatures indicating intent
• expressed and implied contracts
  • expressed: intention stated explicitly
  • implied: terms are inferred
• contracts under seal: formal contract; must be in written, signed, sealed and delivered
• bilateral & unilateral
  • bilateral: ‘promise for a promise’
  • unilateral: ‘offer is made inviting acceptance by actual performance rather than promise

Question 5

Contracts Review Act 1980 (NSW)

Answer 5

Provides an avenue for persons wishing to challenge the nature of contracts

Question 6

Elements of a contract: (ioclgl)

Answer 6

• intention
• offer and acceptance
• consideration
• legal capacity
• genuine consent
• legality

Question 7

Legislations which codifies implicit terms which cannot be excluded in a seller’s liability

Answer 7

Fair Trading Act 1987 (NSW) & Competition and Consumer Act 2010 (Cth)

Question 8

ACCC v Skippy Australia Pty Ltd (2006):

Answer 8

Two types of Skippy Australia’s baby walkers and one type of cot failed to meet mandatory safety standards which had applied since 1998 and 2002 - as a result the company was fined $860 000 and the product was recalled - under Fair Trading Act 1987 and Competition and Consumer Act 2010 (Cth)

Question 9

Implied standards which cannot be excluded from a contract:

Answer 9

• sellers have a right to sell their good
• goods fit description
• goods are of merchantable quality
• goods are fit for purpose
• goods must conform to sample

Question 10

When will courts intervene in contracts:

Answer 10

• misrepresentation: induced into entering contract based on false statement made by the other party
• duress
• undue influence: parties are in a relationship where one party may exercise considerable influence over the other
• unconscionable conduct: party takes advantage over one who is intoxicated, poorly educated or unable to speak English

Question 11

Commercial Bank of Australia Ltd v. Amadio (1983):

Answer 11

Contract was void as the case demonstrated an ‘unconscientious use of a superior position or bargaining power to the detriment of a party who suffers from special disability’ - Justice Mason

Question 12

RDITCooling off periods and act

Answer 12

Abakan

Question 13

Outline the developing need for consumer protection:

Answer 13

Due to the continuously changing, sophisticated marketing strategies, growth of credit card transactions, globalisation and rapid advances in technology (ie online shopping), these have increased the need for consumer protection