Misleading and Deceptive Advertising: A Violation of Consumer Laws

According to the Australian Consumer Law (ACL), a contract was established between Mary and Lianne for $9,500. As per Section 3 of ACL, Lianne is considered a consumer as the value of the contract is less than $40,000. Lianne had specified requirements for the party, including Malaysian-themed food and drink, live Joget and Zapin music, and a room for dancing. However, Mary failed to meet these expectations by supplying Russian-style food instead of Malaysian cuisine and an extremely cramped boat with no space for dancing. As per Section 54-56 of ACL, Mary is responsible for honoring the consumer guarantees and providing goods that match the description. Additionally, Mary made false and misleading representations about arranging a professional and stylish party, which is in violation of Section 18 of ACL. Therefore, Lianne can sue Mary under ACL for violating sections 18, 29, 54-56.

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Cover Sheet
Name of the student
Student ID
Word count

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Contents
Solution 1....................................................................................................................................................3
A..................................................................................................................................................................3
Issues.......................................................................................................................................................3
Relevant law............................................................................................................................................3
Application of law...................................................................................................................................5
Conclusion...............................................................................................................................................7
B..................................................................................................................................................................7
Issue........................................................................................................................................................7
Relevant law............................................................................................................................................7
Application..............................................................................................................................................7
Conclusion...............................................................................................................................................8
Solution 2....................................................................................................................................................8
Bibliography..............................................................................................................................................11

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Solution 1
A.
Issues
Whether there is a valid contract amid Lianne and Mary?
Relevant law
The law of contract is one of the most essential legal frameworks that are required to establish a
contractual relationship amid the parties.
A contract is a document which is the outcome of mutual exchange of promises by two or more
parties. The two parties that are involved are offeror and the offeree. When these two parties
fulfill the basic essentials of a contract, then, there is a legally valid contract that is established
amid the parties. It is thus important to understand the main elements that together constitute a
contract.1
An offer is the foremost ingredient in any contract formation. An offer is nothing but a
communication which is made amid an offeror and an offeree wherein a promise is desired by an
offeror from an offeree to do or abstain from doing anything2. An offer must move from an
offeror and must be reach to an offeree to make it effective in law. An offer must be clear. In
Carlill v Carbolic Smoke Ball Company3, it was held that an offer can be made by an offeror to
one single person or class of persons or to the world at large.4
Many a times an offer is made for a specific time period and an opportunity is given to the
offeree to accept the offer within such time. If the offeree does not accept the offer within such
time, then, the offer is said to be revoked because of lapse of time and is held in Manchester
Diocesan Council for Education v Commercial and General Investments Ltd5.6
But, an offer is made a times is confused with an invitation to treat. In an invitation to treat, there
is no offer that is made by any person. But, with the help of advertisements, through auction,
tenders, etc, the desired person intends to receive offers from people in general. In such cases the
1 Peter Gillies, Concise Contract Law (Federation Press, 1988).
2 Australian Woollen Mills Pty. Ltd. v. The Commonwealth [1954].
3 Carlill v Carbolic Smoke Ball Company [1892].
4 Peter Gillies, n1.
5 Manchester Diocesan Council for Education v Commercial and General Investments Ltd [1969] .
6 Michael Furmston, G.J. Tolhurst, Contract Formation: Law and Practice (OUP Oxford, 25-Mar-2010).

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statements which are made to invite people are called invitation to treat7. Any person (offeror)
who is interested in such statements must make an offer to the inviter. The inviter must than
approve of the offer so make in order to make a valid agreement amid the parties.8
Now, once a valid offer is made by one person than the same must be approved by the offeree
without bringing any changes. Such approval in law is called an acceptance9. An acceptance
must reciprocate to the terms of the offer and if changes are brought while making an acceptance
then it is not a valid acceptance in law and is called counter offer10. A counter offer cancels the
original offer and must be treated as a new offer which when again accepted by the original
offeror results in acceptance in law.11
However, in the leading case of Stevenson, Jacques and Co v McLean12, it was held that a quote
or request of information is no acceptance and thus neither be construed as a counter offer in law.
Now, an offer and acceptance in law makes an agreement in law.
When an acceptance is made then it must reach the knowledge of the offeror to make it binding
and effective. When the acceptance is made then the general rule is that it must reach the
knowledge of the offeror to make it binding upon the parties13. But, in Adam v Lindsell14, it was
held that when an acceptance is made by post then the same is complete when the letter is posted
and not when the letter comes in the knowledge of the offeror.15
However, this postal rule is not applicable when an acceptance is made with the help of emails.
In the leading case of Entores Ltd v Miles Far East Corporation16, it was held that if an
7 Partridge v Crittenden [1968].
8 Paul Latimer, Australian Business Law 2012 (CCH Australia Limited, 2012)
9 Airways Corp of New Zealand v Geyserland Airways Ltd [1996].
10 Butler Machine Tool Co Ltd v Ex-Cell-O Corp Ltd [1977].
11 Stephen Todd, J. F. Burrows, Jeremy Finn, Contract Law in New Zealand (Kluwer Law International, 2011).
12 Stevenson, Jacques and Co v McLean (1880).
13 Latec Finance Pty Ltd v Knight [1969].
14 Adam v Lindsell [1818].
15 SIMONE W B HILL, Email contracts –When is the contract formed?, [2001] JlLawInfoSci 4.
16 Entores Ltd v Miles Far East Corporation [1955].

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acceptance is send through email then it is binding upon the parties only when the same comes
within the knowledge of the offeror. If the email is not read by the offeror then it is not binding17.
If the offeree wants to revoke the email of acceptance then it is necessary that he must send
revocation which must comes in the knowledge of the offeror prior the email of acceptance.
Apart from an offer and an acceptance, there must be presence of consideration, legal intention
and capacity of the parties to make a binding contract.
The law is no applied to the facts of the case.
Application of law
Lianne is intended to host a party and thus looking for a professional. On a website she reads an
advertisement published by Mary wherein she is offering her services from $500 for group of 5.
Now, since an advertisements published by Mary, thus, as per Partridge v Crittenden , it is as an
invitation and Mary must act like an offeree. If Lianne is interested in the advertisement then she
must make an offer to Mary.
On 10th June, an email is sent by Lianne to Mary wherein she submits that he requires her
services and thus she asks for a quote.
Thus, till now no offer is made by Lianne to Mary rather she is expecting a quote from Mary and
in the law of contract a quote is not regarding as an offer nor an acceptance18.
An email is sent by Mary in response to the query wherein Mary suggests that the party be held
on board a boat that will travel up and down the local river for a period of eight hours.
Thus, only a response is made and no offer is made by either parties.
Against the response of Mary, Lianne submitted that she liked the idea and further added few
more requirements.
After three hours, an email is sent by Mary wherein she quoted and amount of $10,000.
17 Nunin Holdings v Tullamarine Estates [1994] 1VR 74 at 83.
18 Stevenson, Jacques and Co v McLean

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It is submitted that as per the law in Stevenson, Jacques and Co v McLean a quotation is not an
offer in law. Thus, there is no offer that is made by Mary to Lianne, rather, Mary has advertised
the service and thus she is eligible to receive offers from Lianne.
Now, against the quote provided by Mary, Lianne offered her own quote of $ 9, 500.
This is the first time that an offer is made by Lianne to Mary against the invitation to offer that is
made by Mary through advertisement.
But, the offer so made by Lianne is accepted by Mary with variation as she requires 10% non-
refundable deposit and has provided a time of 7 days to accept the new variation.
Thus, by bring changes to the terms of offer a counter offer is made by Mary. This counter offer
is the new offer which must be accepted by Lianne within 7 days.19
However, Lianne responses to the offer of Mary on 20th June, that is after 10 days of making the
offer.
Hence the offer made by Mary to Lianne on 10th June is revoked because of lapse of time.20
Now, on 20th June, the new offer made by Mary is accepted by Lianne. However, since the offer
is already revoked thus there cannot be any acceptance.
Mary again made a new offer of $ 10,000 which was duly accepted by Lianne. But, after thirty
minutes Lianne revoked the acceptance and send the revocation through email.
The new acceptance and revocation by Lianne is received by Mary after five hours as her
computer was not working properly.
It is submitted that when the accepted was made by Lianne through email then the same is valid
only when it is in the knowledge of Mary. But, the same is not read by Mary. As per Entores Ltd,
postal rule is not applicable when an acceptance is sent by post.
Thus, it is presumed that Mary has read the email of revocation prior to the mail of acceptance
and thus there is no contract amid the two.
19 Butler Machine Tool Co Ltd v Ex-Cell-O Corp Ltd [1977].
20 Manchester Diocesan Council for Education v Commercial and General Investments Ltd [1969] .

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Conclusion
It is assumed that the mail of revocation is read by Mary prior to the mail of acceptance sent by
Lianne, thus, there is no contractual relationship amid Lianne and Mary.
B.
Issue
Whether are there any rights of Lianne that can be imposed against Mary under the Australian
Consumer law?
Relevant law
The Australian Consumer law is the legislation that is enacted for the protection of consumers.
As per section 3 of ACL, a person is regarded as the consumer provided the goods that are
purchased by her is up to $ 40, 000 or if the goods are more than $ 40,000 than the same is
purchase for domestic purposes.21
In ACL, there are few guarantees that must be comply with by every supplier in order to avoid
any repercussion. The same are:
i. As per section 29 any false and misleading representation by the supplier are
prohibited in ACL22;
ii. Also, no supplier must mislead or deceive the consumer and is prohibited.
iii. As per section 54, the goods must be of acceptable quality23;
iv. As per Section 56, the goods must match the description24.
v. As per section 55, if the consumer has specified the purpose for which the goods are
to be used then the goods must fit for the purpose supplied25;
Application
It is submitted that a contract is established amid Mary and Lianne for $ 9,500. Since the worth
of the contract is less than $ 40,000 thus Lianne is the consumer under section 3 of ACL
21 Julian Bailey, Construction Law (CRC Press, 2016).
22 Competition and Consumer Commission v Bunavit Pty Ltd [2016].
23 Grant v Australian Knitting Mills (1935).
24 Beale v Taylor (1967).
25 David Jones v Willis (1934).

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Now, when the contract is established, then there are various requirements that are submitted by
Lianne, that is, the party must be:
i. a Malaysian themed party;
ii. including that country’s high quality ethnic food and drink,
iii. live Joget and Zapin styles of music.
iv. A room on board for dancing
However, when Lianne arrive with her friend the food that was supplied was Russian-style food
rather than Malaysian cuisine. Also, the boat was extremely cramped and it was a tight squeeze
to accommodate all the party guests. There was no room for dancing.
It is submitted that Mary is responsible to honor the consumer guarantees that are provided under
ACL.
Lianne has specified the descriptions for which the goods are to be used. But, the goods actually
supplied do not fit the purpose for which they are supplied. That, Mary is in violation of section
54-46 of ACL
Also, there are various representations that are made by Mary, that is,
i. that they will arrange a party that will be efficient, stylish and professional.
ii. Also that the party be held on board a boat that will travel up and down the local river
for a period of eight hours
Mary had made false and misleading misrepresentation and thus is in violation of section 29.
Also the acts of Mary were deceptive in nature so as to induce Lianne to establish a contract with
him. Thus, marry is in violation of section 18 of ACL.
Conclusion
Thus, Lianne can sue marry under ACL for violation of section 18, 29, 54-56 of ACL.
Solution 2
Advertisements published by businesses appear in various media such as television, radio, print,
or internet. In Australia, as elsewhere, advertisements are designed to have a certain impact or
effect on those who see, read or hear them. Thus, the business advertiser needs to be careful

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about statements made in its advertisements given that they are subject to legal rules developed
by the courts as well as by parliament.
Thus, there are several rules that are framed within Australia that guides the action of the
advertiser. If the advertiser does not follow such rules, then it is nothing but the violation of
regulations and enactments framed by the government of Australia. 26
Some of the legislation is:
i. Section 18 of the Australian Consumer Law (ACL) deals with advertisements that
are misleading and deceptive in conduct. Those advertisements that include offers
are considered to be misleading and deceptive in nature. Also, if claims are
included in the advertisement which are in small prints and are not readable then
also the same are considered to be breach of section 18 of ACL. Silence or failure
to disclose information is also a breach.
ii. Any kind of opinions or predictions that are portrayed by the advertisers in order
to deceive or misled the readers are also considered to be deceptive and
misleading in nature.
iii. As per section 29 of ACL, any false and misleading information provided by the
advertiser is prohibited under section. A representation is considered to be
misleading when:
a. It comprise of testimonial of the persons which are not true.
b. Any false claim regarding the style, quality, history or product or service;
c. The claim that repair facilities are available which in fact is not true in nature;
d. Any exclusions of the goods are also probated through an advertisement;
e. Any claim of the accessories, sponsorship, characteristic of the goods are
considered to be false and misleading if made through advertisements and are
fake;
f. To claim that goods are new which in fact is not true is a kind of false and
misleading act on the part of the advertiser;
26 NFPlaw, The law of your advertising and your community organization,2016 <
http://www.nfplaw.org.au/sites/default/files/media/The_laws_of_advertising_and_your_community_organisation.pdf>.

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g. Any offering of gifts, prizes, rebates or free items also false within the
category of false and misleading act on the part of the advertiser;
iv. Any false representation regarding the origin of the country is also prohibited and
no advertiser must make any kind of information which misinforms the
advertisers.
v. No advertiser is permitted to carry out any unconsiousable conduct and is
prohibited under section 20 of the ACL. An unconsiousable conduct incur when
the stronger party uses his position to bring an advantage for himself at the cost of
the weaker party27
vi. Bait advertisement are not allowed as per ACL;
vii. There are several advertising and marketing communication upon which AANA
Code of Ethics applies. Several kinds of advertising is included which includes
television, radio, billboards, and online content;
viii. Apart from above there are several other codes that are applicable on fair
advertisement. The same includes:
a. Australia Food and Grocery Council Responsible Children’s Marketing
Initiative of the Australian;
b. ABAC Responsible Alcohol Marketing Code
c. Therapeutic Goods Advertising Code 2015 ;
d. Weight Management Industry Code of Practice 2015;
e. Food and Beverage Industry.
Considering the above statements and the laws that are framed in support of the fair and genuine
advertisements, it is submitted that in Australia, the advertisement must be published in any
form but it must regulate with the legislations that are enacted In Australia otherwise there are
strict penalties that must be faced by the advertisers.
27 Commercial Bank of Australia Ltd v Amadio (1983) and ACCC v Lux [2013].

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Bibliography
Books/Articles/Journals
Bailey, Julian, Construction Law (CRC Press, 2016).
Furmston, Michael , Tolhurst, G.J. , Contract Formation: Law and Practice (OUP Oxford, 25-
Mar-2010)
Gillies, Peter, Concise Contract Law (Federation Press, 1988).
HILL, SIMONE W B, Email contracts –When is the contract formed?, [2001] JlLawInfoSci 4.
Latimer, Paul, Australian Business Law 2012 (CCH Australia Limited, 2012).
Todd, Stephen, Burrows, J. F. , Finn, Jeremy, Contract Law in New Zealand (Kluwer Law
International, 2011).
Case laws
Airways Corp of New Zealand v Geyserland Airways Ltd [1996].
Adam v Lindsell [1818].
ACCC v Lux [2013].
Australian Woollen Mills Pty. Ltd. v. The Commonwealth [1954].
Beale v Taylor (1967).
Butler Machine Tool Co Ltd v Ex-Cell-O Corp Ltd [1977].
Carlill v Carbolic Smoke Ball Company [1892].
Competition and Consumer Commission v Bunavit Pty Ltd [2016].
Commercial Bank of Australia Ltd v Amadio (1983)
David Jones v Willis (1934).
Entores Ltd v Miles Far East Corporation [1955].

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Grant v Australian Knitting Mills (1935).
Latec Finance Pty Ltd v Knight [1969].
Manchester Diocesan Council for Education v Commercial and General Investments Ltd
[1969] .
Nunin Holdings v Tullamarine Estates [1994] 1VR 74 at 83.
Partridge v Crittenden [1968].
Stevenson, Jacques and Co v McLean (1880).
Online Material
NFPlaw, The law of your advertising and your community organization,2016 <
http://www.nfplaw.org.au/sites/default/files/media/The_laws_of_advertising_and_your_commun
ity_organisation.pdf>.