Cartel Provisions and Liability under Competition and Consumer Act

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Question one
The issue in question is if 'one-off' private sale of land by a person who does not commonly sells
properties and is not a real estate agent, can be considered as a transaction that has taken place in
context of 'trade or commerce' as needed under ACL.
In context of misleading or deceptive conduct that has been described in section 18 of the ACL,
it has been provided that in trade/commerce, an individual ought not to be caught up in conduct
that is misleading/deceptive. This question recently came before the court in Williams v Pisano1.
In this case, a property was traded for $3.35 million by Mr. and Mrs. Pisano and the buyers were
Mr. Williams and his wife. Soon after, the buyer had moved into the property, problems started
to emerge. Similarly, there was a major water penetration into the property after the rainy
weather. Under these circumstances, the buyers decided to sue the seller for a breach of s18.
ACL It has been provided by this section that a person should not, in trade or commerce, be
involved in conduct that can be described as misleading or may mislead or deceive.
It was accepted by the seller is that representations made regarding the quality and standard of
renovation can be described as misleading or deceptive. However, it was argued by the seller that
the conduct had not taken place in context of 'trade or commerce'. As a result, the buyer cannot
be held entitled for the protection provided by s18, ACL.2 It was not accepted by the court of
first instances, the Supreme Court of NSW. This Court stated that the sellers were accountable
under s18, ACL. An appeal was made by the sellers. The Court of Appeal approved the
1 Williams v Pisano [2015] NSWCA 117
2 Barrick v Qantas Flight Catering Ltd (2007) 163 IR 207

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submissions made by the sellers. Therefore, this Court stated that the conduct of the sellers had
not taken place in context of trade or commerce. As a result, the protection provided was if
anything was not available to the buyers and the buyer cannot succeed under section 18.
In this context, the court stated that under general conditions, a person selling his home, through
private treaty or auction or if such person conducts personal negotiations or with the help of a
real estate agent, and cannot be considered to have undertaken these activities in trade or
commerce or in context of commerce.3 Regardless of the fact that an estate agent has been used
or, if the agent had advertised the house, by arranging advertisements and brochures, or if the
agent had sold the property by auction or if merely by negotiations, generally the sale will be a
sale by the seller of the dwelling and not a transaction that has taken place in context of business.
Regarding the ACL, the requirement of 'trade or commerce' is fulfilled by the actions that have
taken place in commercial setting as compared to private setting. For example, it can be the
private sale that has taken place between the parties who are generally not in the business of
selling that particular thing.4 Other matters that need to be considered in this regard are the
director of the parties involved, the motivation behind the transaction and the role of the relevant
person in the transaction for the purpose of deciding this issue.5
The sale of residential property generally takes place between a private individual who had lived
in the home for some time span and a personal purchaser, who also means to live in the house for
some duration.6 Under these circumstances, it cannot be stated that the buyer or the seller had
3 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
4 Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389
5 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd (2013) FCAFC
90
6 Wilson, D., 2014, ‘Consumer Information’ in Kate Tokeley (ed), Consumer Law in New
Zealand LexisNexis, 128

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entered the sale in order to advance a commercial purpose or business. Therefore, such sales are
generally not considered as the transactions that have taken place in 'trade or commerce'.
On the other hand, the situation would be diverse if the property is being sold by a developer as a
part of the development. In this case, the fact that the same is being made, while advancing the
business of the developer makes such sale A transaction that has occurred in ‘trade or
commerce'.
After going through the above mentioned the discussion, and also the relevant case law,. It can
be stated that generally of 'one off' private sale by a person who is not a real estate agent and
does not commonly sells properties, cannot be considered as having taken place in context of
trade or commerce as required by the Australian consumer Law. The same can also be stated in
case of private sale of a business, a good or a sale that has taken place on the Internet.