Australian Consumer Law Case Analysis

This assignment delves into the intricacies of the Australian Consumer Law (ACL), analyzing its provisions and applications through relevant case studies. It examines core concepts such as misleading conduct, unfair contract terms, and consumer guarantees. The analysis further explores the ACL's impact on advertising practices and the enforcement mechanisms available to protect consumer rights.

Running Head: Law 1
Law

Law 2
Answer 1
Part A
Issue: whether Mary and Lianne enter into any contract while communicating through E-mails?
Law: it must be noted that valid contract includes agreement, and for agreement it is necessary
that both offer and acceptance exists. Consideration and intention to create legal relations are
also the important elements of valid contract.
Offer is the communication between two parties under which one party promise the other party
to do something or not do something if such other party does something or refuse to do
something. Any particular form is not stated by law for the purpose of making an offer, which
means offer can be made either orally, in writing or by conduct also.
It must be noted that there is difference between invitation to deal and offer which can be
understood through case law Carlill v Carbolic Smoke Ball Co, Court of Appeal [1893] 1 QB
256; [1892] EWCA Civ 1 (ACL, n.d.).
However, it is possible to terminate the offer through revocation but such termination can only
be done before the acceptance, which means offer cannot be revoked if it is already accepted by
the offeree.
Other important element of valid contract is acceptance, and it is considered as statement through
offer given by offeror is agreeing by the offeree. It must be noted that offer can only accepted by
the person to whom it is directed and not by any other person.
Things are different, if parties enter into contract through E-mails. However, basic elements of
valid E-mail contracts are also offer and acceptance. It is necessary at the time of entering into
contract through E-mails parties must intended to create legal relations. Contracts through E-mail

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are determined by the provisions of Electronic Transactions Act 1999. Section 14 of the Act,
defines the time of receipt of electronic mail. As per this section time of receipt is considered that
time at which E-mail actually enters in the information system of the person who gives the offer.
Acceptance of offer is considered at the time when E-mail of acceptance enters in the mailbox of
the offeror.
Application: in this case, Mary and Lianne exchanges numbers of E-mails and Lianne send mail
of acceptance to Mary and after 30 minutes of acceptance mail Liannne change her mind and
send mail to cancel the deal. However, contract exists between the parties because time of receipt
under section 14 of Electronic Transactions Act 1999 is the time when E-mail actually enters in
the mailbox of offeror. In this mail send by Lianne to Mary is entered in the mailbox of Mary but
because of electronic disturbance Mary reads the mail after 5 hours. In this time of acceptance is
considered as that time on which mail enters the mail box. Therefore, there is valid acceptance.
As stated above, in E-mail contracts also both offer and acceptance are considered important
elements. Court decided in case Stellard Pty Ltd & Anor v North Queensland Fuel Pty Ltd, that
contract exists between the parties even though such contract entered through E-mails.
Therefore contract exists between Mary and Lianne because both offer an acceptance is present
and as per general rule it is not possible to revoke the contract after acceptance.
Conclusion: valid offer and acceptance is present in the contract which means contract exists
between Mary and Lianne.

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Part B
Issue: if Mary breaches the provisions of the contract, then rights and remedies available to
Lianne for breach of contract?
Law: consumer guarantees are provided by the Australian Consumer Law, and these guarantees
ensures safety and protection of the consumers in Australia. It must be noted that person who
supplied goods and services to any consumer while engaged in trade and commerce then such
person must compiled with the statutory consumer guarantees (Austlii, n.d.).
According to section 60 of the Competition and Consumer Act 2010- Schedule 2 trader provide
guarantee to the consumer that he perform his functions with due care and skill. In other words,
when services are provided to the consumer in trade or commerce then supplier is under
obligation to provide such care with skill and care (Competition and Consumer act, 2010).
Section 61 of the Act states, consumer has right to receive such product and service which is fit
for the particular purpose. In other words, when any goods and services are provided to the
consuming during the ordinary course of trade and commerce, then it is duty of trader to provide
the guarantee that goods and services are fit for purpose which is stated by the consumer before
entering into transactions (Competition and Consumer act, 2010).
In case consumer specifically states the expected result from goods and services provided by the
trader before entering into the contract, then trader is under obligation to provide similar result
from the services supplied and goods delivered to the consumer. If trader fails to fulfill its
obligation under this section then consumer has right to seek remedies provided by the ACL.
ACL provides following remedies if failure on the part of the trader is major:

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 Contract related to the service provided by the supplier can be terminated by the
consumer.
 Consumer can demand refund of the services which are not consumed by consumer.
 Consumer has right to enforce the contract and claim for compensation from the supplier
if any difference occurred in the actual services provided by the trader and desired result
which is already stated by the consumer before entering into contract.
Application: in this case, Lianne specifically demand for Malaysian cuisine and more space for
dance floor, but at the time of part Mary provide Russian Cuisine and dance floor is very
congested. In this Mary breach the statutory guarantees stated under section 60 and 61 of the Act
by providing her services with due care and skills and also by not providing services for which
Lianne paid.
This can be understood through case law Norman Enterprises Pty Ltd t/as
Leimo Australia v Deng [2013] QCATA 047. In this case court stated that trader fails to compile
with express warranties in the case.
After considering above facts, it is clear that failure to meet the desired results of services
provided can be determined as major failure. Therefore, Lianne has right to seek remedies from
Court but it is not possible for her to terminate the contract because services provided by Mary
are already consumed.
Conclusion: Mary breach the provisions of the Act which can be considered as breach of
statutory guarantees provided to Lianne by ACL. Therefore, Lainne can seek remedy agist the
Mary and she can claim for compensation.

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Answer 2
Introduction:
Now days, advertisement of products and services can be considered as most important mode for
the companies to promote and sell their goods and services. It must be noted that companies
published advertisements on radio, television, newspapers, etc. Therefore, it becomes necessary
for companies to follow all rules and regulations stated by Act for this purpose.
Rules and regulations related to advertisement and selling practices are introduced by the
Australian Consumer law for the purpose of protecting and ensuring the interest of consumers.
These practices also ensure fair dealings with consumers and prevent the business organizations
to be involved in unfair dealings. Australian consumer law is the part of Competition and
Consumer Act 2010.
This paper describes the provisions related to the laws advertising and selling practices for the
purpose of ensuring fair dealings with the clients. Lastly, brief conclusion is stated which
concludes this paper.
Provisions of Act:
Business organizations rapidly involved in the advertising and selling practices and organizations
also involved in these practices through online mode also. In other words,, companies promoting
and selling their products in online environment also which includes different modes such as E-
mail, online sites, apps, social media, etc. in case business indulge in these practices through

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online mode then also business are obliged to fulfill the rules and obligations stated for this
purpose under the Act. Business organizations enjoy same rights and obligations even though
they advertise their products through online mode.
Rules and regulations related to advertising and selling are defined by Chapter 2 and 3 of the
Act. It must be noted that these chapters’ deals with the commercial matters related to the trade
and commerce if such matter provide wrong information to the other party. In other words, if any
matter related to trade and commerce reflect false representation and idea about the actual
situation then chapter 2 and 3 deals with it. However, it also includes the matters which are
related to business advertisement (ACCC, n.d.).
Misleading conduct & false representation:
Generally, business organizations conduct fair dealings with their consumers and these dealings
are transparent in nature, but some organizations are also there which involve in misleading and
deceptive conduct which results in unfair dealings and loss on the part of the consumer.
For this purpose, section 18 and 29 of the ACL defines the provisions related to misleading and
deceptive conduct and false representation. These sections restrict the business organizations to
conduct any deal with their consumer which is unfair in nature and mislead the consumers
(Competition and Consumer Act, 2010). In other words, section 18 of the ACL prohibits the
business to engage in any such conduct which mislead and deceive any other person or likely to
mislead or deceive the consumers who are dealing with the business. It must be noted that
business organizations can involve in unfair dealings through various modes such as
advertisement, personal communication, etc. (Competition and Consumer Act, 2010).

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Court decided many cases in this context which make the term misleading and deceptive clearly.
These cases state the actual meaning of the misleading and deceptive conduct. Usually, mislead
is the term on which Court emphasized and it must be noted that this term is broader in nature
because consumers who falls under the definition of mislead automatically falls under the
context of deceive. Therefore, conduct which is misleading in nature involves following factors:
 Organizations make false representation and claims by publishing an advertisement and
consumers on the basis of thee claim enter into transaction with the business.
 Advertisement published by organizations make false impression and provides
information to the consumers, and also fails to provide the important information related
to business and organization.
It must be noted that in some cases it is very easy for tribunals to identify the conduct which
misleads and deceive others, but any conduct which actually not mislead but likely to mislead is
very difficult to identify. It becomes difficult for organizations to consider whether subject
matter of the issue provides wrong information to the consumers, and for this purpose court
consider all the circumstances of the case (Battersby, 2013).
Rules and regulations related to conduct of business organization promote the fair dealings in
trade and commerce and ensure that organizations act in good faith. This can be understood
through case Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60, (2004) 218 CLR 592. In
this case, Court stated that defendant acted in good faith which means there is no misleading
conduct on the part of defendant.
Therefore, it is clear that if business fails to act in good faith then it is considered as misleading
and deceptive conduct.

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Conclusion:
Both the sections of ACL that is section 18 and 29 deals with the advertising and selling
practices in Australia, and these sections prohibits the business organizations to engaged in any
such conduct which mislead and deceive another person. These sections also promote the fair
dealings and ensure that organization must not engage in any unfair dealing with consumers.

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References:
ACCC. Advertising and selling guide. Viewed at: https://www.accc.gov.au/accc-book/printer-
friendly/29527. Accessed on 22nd September 2017.
ACL. Agreement. Viewed at: https://www.australiancontractlaw.com/law/formation-
agreement.html. Accessed on 22nd September 2017.
Austlii, Paterson, Jeannie Marie --- "The New Consumer Guarantee Law and the Reasons for
Replacing the Regime of Statutory Implied Terms in Consumer Transactions" [2011]
MelbULawRw 8; (2011) 35(1) Melbourne University Law Review 252. Viewed at:
http://www.austlii.edu.au/au/journals/MelbULawRw/2011/8.html. Accessed on 22nd September
2017.
Battersby, M. (2013). Advertising and the ACL: Fine print couldn't save TPG Internet in the
High Court. Viewed at: https://www.claytonutz.com/knowledge/2013/december/advertising-and-
the-acl-fine-print-couldn-t-save-tpg-internet-in-the-high-court. Accessed on 22nd September
2017.
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60, (2004) 218 CLR 592.
Carlill v Carbolic Smoke Ball Co, Court of Appeal [1893] 1 QB 256; [1892] EWCA Civ 1.
Competition and Consumer Act 2010- Schedule 2- section 18.
Competition and Consumer Act 2010- Schedule 2- section 29.
Competition and Consumer Act 2010- Schedule 2- section 60.
Competition and Consumer Act 2010- Schedule 2- section 61.
Electronic Transactions Act 1999- Section 14.
Norman Enterprises Pty Ltd t/as Leimo Australia v Deng [2013] QCATA 047.
Stellard Pty Ltd & Anor v North Queensland Fuel Pty Ltd [2015] QSC 119 (14/11998) Martin J
15 May 2015.