BTF1010 Study Guide - Final Guide: Precontract, Legal Personality, Norm (Social)
6 Jun 2018
School
Department
Course
Professor
Consumer Protection
- Applies to the sale of goods, services and land
- Occurs pre-contract
- Conduct: 2(2)(a): A reference to engaging in conduct shall be read as a reference to do or refusing to
do any act
Misleading/deceptive conduct (s 18)
• Remedies are superior to common law
• It establishes it is a social norm of conduct: possible but difficult to exclude liability
• Induced to enter contract
• Exclusion clauses can’t be used in ACL
• Silence: the “act” in 2(2)(a) is a oral/written statement. Literal truth may be misleading, failure to
disclosed changed circumstances. Case: Costa Vraca Pty Ltd v Berrigan Weed & Pest Control
• Has a person: natural and legal person
• In trade or commerce: business-related conduct, not private
• Engaged in conduct: includes words, actions or silence/inaction
• That is misleading/deceptive or likely to mislead/deceive: “lead into error”
• Case: Australian Competition and Consumer Commission v TPG Internet Pty Ltd
• Case: Henjo v Collins Marrickville
Remedies for breach of s 18: Damages s 236 (1)
Case: Wakefield Trucks v Lach Transport
Unconscionable conduct (s 20, 21, 22)
Unconscionable conduct within the meaning of the written law (s 20)
• Case: ACCC v CG Berbatis Holdings Pty Ltd
Unconscionable conduct in connection with goods or services (s 21 (1))
• Case: ACCC v Lux Pty Ltd
Unconscionable conduct and small business (ss 21 and 22)
Enforcements and remedies
Damages (s 236): to compensate for loss or damage caused by a breach of the ACL
• May recover the amount of loss or damage by the misleading conduct
Document Summary
Applies to the sale of goods, services and land. Conduct: 2(2)(a): a reference to engaging in conduct shall be read as a reference to do or refusing to do any act. Misleading/deceptive conduct (s 18: remedies are superior to common law. It establishes it is a social norm of conduct: possible but difficult to exclude liability. Induced to enter contract: exclusion clauses can"t be used in acl, silence: the act in 2(2)(a) is a oral/written statement. Literal truth may be misleading, failure to disclosed changed circumstances. Case: costa vraca pty ltd v berrigan weed & pest control: has a person: natural and legal person. Remedies for breach of s 18: damages s 236 (1) Unconscionable conduct within the meaning of the written law (s 20: case: accc v cg berbatis holdings pty ltd. Unconscionable conduct in connection with goods or services (s 21 (1): case: accc v lux pty ltd. Unconscionable conduct and small business (ss 21 and 22)
