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200292 - Paper on Impact of Australian Consumer Law

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Western Sydney University

   

Building Law (200292)

   

Added on  2020-02-24

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200292 - Paper on Impact of Australian Consumer Law assignment, The Australian Consumer Law or the ACL is the statute that deals with the issue related to trade or commerce and governs fair consumer protection for all the businesses and individuals in the country. The statute requires every individual be it a businessperson that sells products or services to individuals or be it a consumer that purchases such products or services, to be aware of their rights and obligations under the ACL. With respect to the developer’s contracts in relation to the individuals who are not investors, the ACL may have a substantial impact upon the same. 

200292 - Paper on Impact of Australian Consumer Law

   

Western Sydney University

   

Building Law (200292)

   Added on 2020-02-24

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Running head: BUILDING LAWBuilding LawName of the StudentName of the UniversityAuthor Note
200292 - Paper on Impact of Australian Consumer Law_1
1BUILDING LAWThe Australian Consumer law or the ACL is the statute that deals with the issue related totrade or commerce and governs fair consumer protection for all the businesses and individuals inthe country. The statute requires every individual be it a businessperson that sells products orservices to individuals or be it a consumer that purchases such products or services, to be awareof their rights and obligations under the ACL. With respect to the developer’s contracts inrelation to the individuals who are not investors, the ACL may have a substantial impact uponthe same. The statute prevents the seller, businesspersons or the developers to exhibit any formof deceptive or misleading conduct in relation to the buyers or the other parties to the contractand must not incorporate any clauses that amounts to unfair terms. According to the ACL, a consumer contract may be defined as a contract where a sale oran interest in land is granted to any individual either predominantly or wholly for personalhousehold or domestic purpose. The intent of the purchaser of such land or the interest of land isessential to assess whether a sale contract or a contract for grant of interest is a consumercontract under the ACL. In case the land purchased is not purported to be used for domestic orpersonal purpose, the Australian Consumer Law shall not govern the contract. In the Supreme Court of West Australia in OPR WA Pty Ltd v Marron [2016]1, the courtfound that if a land is used for business purpose it shall not be considered as consumer contractunder the Australian Consumer Law. A sale contract is a consumer contract under the ACL if itis held for domestic or personal consumer as stipulated under Schedule 2 of the Competitionand Consumer Act 2010. The ACL imposes certain restrictions on the sellers and at the sametime, provides consumer guarantee to the buyers regarding the manner in which they shouldperform business operation. 1[2016] WASC 395.
200292 - Paper on Impact of Australian Consumer Law_2
2BUILDING LAWThe restrictions that are imposed upon the seller include prohibition of application ofunfair terms and bait advertisements, use of deceptive or misleading conduct. The paperdiscusses about the impact of the Australian Consumer Law with respect to unfair contract termsand misrepresentation on the sale of land. Unfair Contract termThe Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 (theACL)2 was enacted for regulating the unfair terms in standard form consumer contracts. Thestatute has significant impact on developers’ contracts with respect to individuals. The statutecontains provisions for unfair terms according to which any unfair terms used in the standardform of contracts shall be considered as void and unenforceable. The Contracts for sale enteredinto between the developer as seller and the individual as buyer is deemed as standard form ofcontracts unless the parties establishes otherwise. The following terms is considered as unfair terms under the ACL:terms that causes significant imbalance in the rights and obligations of the parties;terms that would affect the purchaser, both financially or otherwise, if the purchaserrelies on such terms;terms that are not necessary to safeguard the legitimate interests of the developer; Further, for the purpose of determining whether any particular term is essential for protectingthe interests of the developer, it is important that the developer provides evidence about themarket in which they operate. The developer is also required to provide evidence related to thefiscal factors that are imposed by the financiers. Adequate evidences are also required in terms of2 Trade Practices Amendment (Australian Consumer Law) Bill (No.2) 2010
200292 - Paper on Impact of Australian Consumer Law_3
3BUILDING LAWplanning schemes and other regulations of the councils that are responsible in providing thedeveloper with a level of flexibility. The statute requires the developers to make sure that theclauses incorporated in their contracts are such that it provides discretion to the extent necessaryfor delivering finished products to the consumers. The developers must further ensure that thecontracts does not include anything or it does not provide any additional freedom that wouldamount to unfair contractual terms under the newly introduced statutory provisions of theAustralian Consumer Law.The new statutory provisions incorporated with respect to prohibition of unfair contract termsto be used in contracts require the parties to a contract to make transparent contracts. The sale ofland contract consumers are often required to sign standard contracts, hence, the provisionsrelating to unfair contract terms require the consumers to enter into contracts that contains clearclauses so that it becomes easier for them to address any risks associated with the contract. Theprovision shall prohibit the developers from incorporating any terms that would affect thelegitimate interests of the consumers. Further, the provisions of the unfair terms shall becomeapplicable on new standard form small business contracts that either have been entered in to bythe parties or have been renewed by them since 12 November 2016. According to Schedule 1, section 2 of the Australian Competition and Consumer Act2010 (Cth), the interest of land is defined to be equal to the legal estate of land3. It also includesright, shares of a company owning the land, a power, or privilege, held with respect to a land,including further, the occupancy right in the land or a building erected on it.3 Australian Competition and Consumer Act 2010 (Cth).
200292 - Paper on Impact of Australian Consumer Law_4

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