Please enable JavaScript.

Coggle requires JavaScript to display documents.

CONSUMER PROTECTION: Consumer guarantees, unfair terms, unconscionable…

- - - - ACL s 3(1): amount for goods or services is not more than $100,000 or
      - Goods and services are of a kind ordinarily acquired for personal, domestic or household use or consumption or
        
        Bunnings Group Ltd v Laminex Group Ltd
      - Goods are a vehicle acquired for use on public roads
      - ACL s 3 (2): not goods that are acquired for re-supply, using up production, or in the repair of other goods
  - - - Thomson v Excel
        
        Breach s 54: not acceptable quality -> not safe, durable or fit for use and met expectations of a reasonable consumer due to statements on the packaging
    - - Fit for all purposes for which goods of that kind are ordinarily acquired and
      - Acceptable in appearance and finish and
      - Free from defects and
      - Safe
      - Durable and
    - - The nature of the goods and
      - Their price and
      - Any statements made about the goods on their packaging or label and
      - Any representations made about the goods by the supplier or the manufacturer and
      - Any other relevant circumstances
      - E.g. a reasonable consumer will expect more from goods that are expensive, marketed to children, which have specific claims made about them etc.
    - - Merck Sharp & Dohme v Peterson
  - - - Liability can only be limited in this specific way, and only in cases where the consumer guarantees only apply because of the price test
  - - - ACL s 260: Criteria for major failure
        
        Goods would not have been acquired by a reasonable consumer if they knew nature and extent of failure or
        
        Goods are substantially unfit for common purpose and cannot be easily remedied within a reasonable time or
        
        Goods are unfit for a disclosed purpose and cannot be easily remedied to fit that purpose or
        
        Goods are not of acceptable quality because they are unsafe
      - Remedies
        
        ACL s 259(3): Can reject the goods (within a reasonable time) or recover compensation for a reduction in value
        
        ACL s 259(4): Can recover damages for reasonably foreseeable loss or damage unless the failure was caused by a problem after the goods left the supplier
    - - ACL ss 2259 (1) & (2): Consumer may require supplier to remedy the failure within a reasonable time (repair, replace, refund) and can reject the goods if they do not do so
- - - - ACL 24(1): the test for whether a term is to be considered unfair, as a matter of law
        
        would cause a significant imbalance in the parties' rights and obligations and
        
        it is not reasonably necessary to protect legitimate interests of the party who would be advantaged by the term and
        
        it would cause detriment (financial or otherwise) to a party if it were to be applied or relied upon
        
        ACCC v Uber Eats
        
        ACCC v JJ Richards & Sons Pty Ltd
      - ACL s 24(4): onus of proving protection of legitimate interest rests with the advantaged party
      - ACL s 24(2): must consider transparency of term and contract as a whole
      - ACL s 24 (3): term is transparent if in reasonably plain language, legible, presented clearly, and readily available
    - - ACL s 227 (2): courts are to consider such matters as they think relevant but must consider whether:
        
        another party was in effect required to accept or reject the contract in the form it was presented in
        
        one of the parties had all/most bargaining power
        
        the contract was prepared by one party before any discussion
        
        another party was given an effective opportunity to negotiate the contracts terms
        
        the terms take into account the specific characteristics of another party
    - - ACL s 23 (3): contract for the supply of goods or services or the sale of land to an individual who acquires them wholly or predominantly for personal, domestic or house use or consumption