Building Law: Consumer Law, Misrepresentation and Contract Terms

This report provides an in-depth analysis of building law, specifically focusing on the Australian Consumer Law (ACL) and its implications for developers and consumers in the real estate sector. The report examines the ACL's role in regulating the sale and purchase of land, emphasizing the importance of fair trading practices. It delves into the concepts of misrepresentation and unfair contract terms, highlighting how these are defined and prohibited under the ACL. The analysis covers various forms of misrepresentation, including misleading or deceptive conduct, false claims, and omissions of critical information. It also explores the consequences of misrepresentation, including penalties and legal precedents. Furthermore, the report examines unfair contract terms, outlining the standards and regulations that protect consumers from imbalanced agreements. It discusses the criteria used to identify unfair terms and provides examples of such terms within the context of building contracts. The report uses case studies to illustrate key concepts and provide practical insights into the application of consumer law in the building industry.

Running head: BUILDING LAW
Building Law
Name of the Student
Name of the University
Author Note

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Table of Contents
Assessment......................................................................................................................................1
Task:................................................................................................................................................1
Discussion....................................................................................................................................1
A. Misrepresentation:................................................................................................................3
B. Unfair Contract Terms:.........................................................................................................7
Reference.......................................................................................................................................10

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Assessment
Task:
Discussion
The Consumer Law has been introduced for the fair trading and provides protection for the
consumer. It has enforcement of the laws in the Australian Government and the States and
Territories where they monitor the Legislative and Governance Forum according to the
implication of Australian Law. The sale or grant of interest in land also controls the Australian
Consumer Law through all over the States. The supply or delivery of the financial products or
services also covers under the Australian Consumer Law (Consumerlaw.gov.au, 2017).
The Australian Consumer Law has important impacts in the developers selling land
because it controls the selling and purchasing the land. On the transaction of real estate the
Australian Consumer Law has uses their own law of applications which helps to identify the
issues in the trade or commerce. The misleading or the deceptive conducts is one of the pat in the
Australian Consumer law which applied for the trade or commerce. The application of law of the
deceptive conducts also works on the unfair contract terms where the consumer contract has
recognized as void in the practice of the trade or commerce purposes.
The ACL also provide protection and safety for the consumer goods and product-related
services. Therefore the enforcement of information standards is another part which also formed
by the ACL. It is actually regulates the consumers for the sale or grant or any interest regarding
the acquisition of personal, domestic or household use or consumption.

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It also regulates consumer guarantees for the sale and goods which includes:
 The right to sell and deliver the goods of the supplier.
 The possession which require for the delivery of the goods of the consumer.
 The goods should be free from every undisclosed securities or charges.
 The delivered goods should be safe from ay disputes and must acceptable in the
appearance and finis.
 The delivered goods should be according to the description as per the seller.
 The manufacturer must have proper facilities for repairing the goods.
However for the building industry there are varieties of regulation in ACL for associated with
the every issue in the building purposes. Under the Australian Consumer law the consumer
contract has been made where the contract provides the information regarding the selling and
buying of the land for the personal, domestic or household.
The Australian Consumer Law set the standards of the contract where a contract has been
developed between the developer and an individual for selling any land or goods where a
particular standards has been set unless the develop has the right to go to the court (Corones
Christensen and Howell 2016). Normally any sale contract always introduced according to the
standards of contract. According to the standards of contract of Australian Consumer Law when
the developer set the agreements or contract the selling agent records every negotiations
regarding the selling and purchasing of the land. However the ACL helps to ensure that the
consumer can negotiate with the terms when they are selling or purchasing the lands. According
to the standards of the contract in ACL defines the both misrepresentation and unfair contract
terms (Consumerlaw.gov.au, 2017).

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A. Misrepresentation:
The misleading or deceptive conducts or misrepresentation in the trade and commercial has
been prohibited from the beginning of the Australian Consumer Law. The section 18 of the
Australian Consumer Law provides the legislation where the misleading or deceptive conducts
are prohibited. The consumers and the developers both can use the legislations of the sec-18 of
the consumer law to comply with the business ad every legal proceeding regarding the building
business (Corones Christensen and Howell 2016). The selling agents and business developers are
bound to make it sure that the consumers must have knowledge about the practice of the
misrepresentation according to the Australian Consumer Law. The developers and the gents must
prohibits their staffs from the engaging in the behavior of misleads or deceives. The
misrepresentation includes different types of prohibitions according to the Australian Consumer
Law (Consumerlaw.gov.au, 2017). Those are:
 When the developer or the selling agent misleads the client intentionally
 When the developer or the selling agent intentionally encourage the consumers for a
wrong conclusion
 When developer or the selling agent provides the information which is factually
correct but represents false impression
 When the developer or the selling agent knows the correct information but never
correct the misunderstandings.
 When the developer or the selling agent not updates every information regarding the
rules of the Australian Consumer Law.
 When the developer or the selling agent intentionally not inputs any information
regarding the contract with the consumers.

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 When the developer or the selling agent has making false, exaggerated or inaccurate
claims in the contract of selling without the knowledge of the client.
 When the developer or the selling agent stay silent about any disputes on their
building material which affect the consumers then it also treated as misrepresentation
by them (Corones Christensen and Howell 2016).
The misrepresentation is recognizing as a common law of actions where the false or
misleading representations in property transactions is one of the recognize part in the Australian
Law. The developers and the every individual are the part of the purchasing or selling the
property along with these obligations. The developer, agents and individual both of them are
works under these obligations (Corones Christensen and Howell 2016). When the
misrepresentation is occur at the time of dealing of the sell and purchase the property the sec- 30
of the Australian Consumer Law stated the legislations of prohibits false or misleading conduct
in connection with the sale, or possible sale. The statutory position of the misrepresentation of
the land purchasing has several impacts which are connected with the sale, or possible sale, of an
interest in land (Consumerlaw.gov.au, 2017). Those are:
 The misconducts sale, or possible sale, of an interest in land is connected when
according to the sponsorship, affiliation or approvals of the statement which is
depend on the person who is making the decision.
 According to the nature of the land also depends and applies the law on the
statutory position of the misrepresentation.
 The amount or capital or price has been paying on that particular land.
 The geographical location of the land also decides the statutory position of any
contact (Corones Christensen and Howell 2016).

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 The owner of the land or the person who belongs to the land or who is capable to
use the land by lawfully also depends on the statutory position of the agreements.
 The existence of the land where it has rights to make the availability regarding
the use of the land.
However the misrepresentation can be defines in various ways where it shows the
existence and establishment such facts can be verbal or written. The misrepresentation only
covers those parts where the statement has been stated. It there is any reliance establishes
regarding the representation or the detriments are suffered due to the result of the reliance. In the
case of Miletich v Murchie (2012) it has been found that the misrepresentation has been
established by the verbal representation in accordance with the misleading advertising material.
In this case the court has been determined that the disclaimer never release the liability according
to the material of the contract (Corones Christensen and Howell 2016). Therefore it is the duty of
the purchaser to depend only for the representation according to the circumstances. In another
case, Australian Competition and Consumer Commission vs. Metricon Homes Qld Pty Ltd
[2012] the misrepresentation has been stated in an advertising material. Therefore in the
misrepresentation the Build Time Guarantees when are not able to provide the advertised costs.
Though not only the developers but also the agents are bound identify the misrepresentation
while they involved in the selling and buying. When any false statement or intentional
misstatement has stated for a person in the contract then it will recognize as misrepresentation
(Consumerlaw.gov.au, 2017). The sec- 18(1) defines that the no one who is engage in the trade
or any commerce business never allow to represents any statements which is inappropriate and
established a misleading or deceptive conducts in the business (Corones Christensen and Howell
2016).

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According to the Australian Consumer Law the sec- 151 defines the amount of penalty
for misrepresentation conducts which amount could be $1,100,000 for a body corporate and
$220,000 for individuals (Corones Christensen and Howell 2016).
The ACL has its own significance for the application of the legislation for the developers
to sell and purchase the land or property to the consumers. However the developers and agents
are using the legislation while they are applying the legislation in the property contracts for
making the fair deal (Corones Christensen and Howell 2016). The ACL applies the legislations
to establish a fair reason where they make the consumer contract for the sale or grant of an
interest in land according to the position of the land which covers the ownership of the property.
The contract of sale has operated under a strata title and land sold “off-the-plan according to the
standards of the contract (Consumerlaw.gov.au, 2017).
In another case of Gough & Anor v South Sky Investments Pty Ltd [2011] of the
Australian where the Supreme Court of Queensland stated a decision where the importance of
the transaction in written contract has been found. In this case the court has found that the
purchaser of the land has taken legal actions against the seller or vendor for delivering them a
completely different apartment which has no significance according to the written contract
(Consumerlaw.gov.au, 2017).
Therefore according to the Australian Consumer Law the seller has breach the agreement.
According to the agreement the seller should deliver the accurate product to the purchaser but he
failed to deliver the product. It is one of the examples of the misrepresentations (Corones
Christensen and Howell 2016).

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B. Unfair Contract Terms:
The Australian Consumer law defines the structures of the application of the unfair contract
terms in the consumer contract with the developers in the property contract. The unfair contract
terms define the standards where void contract terms has been establishes. The void contract
represents the unfair treatments only when the individual parties are require to have services or
products which are wholly or predominantly for personal or related with the household uses. For
the set of the standards of the contracts the Australian Consumer Law has introduced several
terms which represents the unfair contract terms. In the bargaining power the party or the
consumer has more power to negotiate the transactions (Corones Christensen and Howell 2016).
The contract preparation depends when the both of the party prepared for the negotiation
process. When the parties are bound to accept the terms of the contract to take it or leave it. The
parties have the opportunities to negotiate the contract which will be effective for the building
contract (Corones Christensen and Howell 2016). They also looks for the proper transactions
according to the contract. According to the Australian Consumer law legislations the matters
only prescribed according to the regulations (Consumerlaw.gov.au, 2017).
Therefore there are certain terms are represents the significance whether the terms are fair
or unfair in the consumer contracts. The Australian Consumer Law defines various examples
where the unfair terms have been described (Corones Christensen and Howell 2016). It may
include:
 To terminate or vary the consumer contract.
 The price will depend according to the capability of the buyer to terminate the contract
according to the contract law.

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 The characteristic or the implication of terms are also depends on the property which will
be sold to the buyer.
 The unilaterally interpretation on the contracts which may breach or not.
 The establishment of the meaning also depends on the unilaterally interpretation for the
unfair agreements.
 The terms also prepare the rights to make allegations to one party to another party.
When the terms of the contracts have been breached then it will also recognize as the
unfair terms of the contracts. For the determination of the unfair terms the Australian
Consumer Law has set the terms which are considered by the court (Corones Christensen and
Howell 2016). According to the transparency of the contract terms like the formation of the
contract whether it has been written in English with proper meaning and the structures of the
contracts. The contracts terms only represent the fair terms when the parties mutually
confirm the price in the contract. The fair terms also defines when it describes the subject
matter of the contract according to the requirements which are permitted or have accesses
according to the Australian Consumer Law (Consumerlaw.gov.au, 2017).
In the case of Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007)
the unfair terms has been conducted due to the breach if the contract terms. It has been found
that the parties always have some common intention where they understand the context of the
terms in the contract but failed to serve according to the terms. The unfair terms has been
conducted only for the breach of the terms (Corones Christensen and Howell 2016).
In the Qin v Smith (No. 2) [2013] case it has been found that breach of contract
justifying termination, and anticipatory breach according to the settlement of the purchaser and
the seller of the said property (Corones Christensen and Howell 2016).

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Nowadays, the developers are trying to minimize the challenges in the purchasing and
selling the lands regarding the use of the terms under the contracts. They all first try to check all
the terms regarding the balance and paying the attention on the unilateral rights to the seller. The
reviewing the terms and proceed according to the court rules where both party will have the riht
to negotiate the terms according to the relevant contractual context. They also review the terms
for maximizing the prospects of the process of the court where they need t provide proper
justification for the terms and considers every incorporating outlines and acknowledged the
matters. The developers also review the terms and operate according to the detriment of the other
party (Consumerlaw.gov.au, 2017). When a term has been considered in the favor of the seller,
there must have other presences of the legitimate interest for the identification f the contract.
Therefore the consideration is mandatory for the future disclosures according to the application
of the legislations and the rules of the Australian Consumer Law (Corones Christensen and
Howell 2016).

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Reference
Australian Competition and Consumer Commission v Metricon Homes Qld Pty Ltd [2012]
FCA 797 (Metricon)
Butler, D., Christensen, S., Willmott, L. and Dixon, B., 2013. Contract Law Case Book.
Consumerlaw.gov.au. (2017). Australian Consumer Law. [online] Available at:
http://consumerlaw.gov.au/ [Accessed 22 Aug. 2017].
Corones, S.G., Christensen, S.A. and Howell, N., 2016. Submission to Australian Consumer Law
Review Issues Paper.
Evans, P., 2017. The building and construction industry code of conduct (WA). Brief, 44(6),
p.22.
Gough & Anor v South Sky Investments Pty Ltd [2011] QSC 361
Koompahtoo Local Aboriginal Land Council v Sanpine
Latimer, P., 2016. Protecting Consumers from Unfair Contract Terms: Australian Comparisons.
McKendrick, E., 2014. Contract law: text, cases, and materials. Oxford University Press (UK).
Miletich v Murchie [2012] FCA 1013
Pearson, G., 2017. Further challenges for Australian consumer law. In Consumer Law and
Socioeconomic Development (pp. 287-305). Springer, Cham.
Pty Ltd (2007) 233 CLR 115