Source of legal rights

Torts

Contract:Express Terms

Statute:Consumer Guarantees

Terms

Term or representation? Objective test of intention “reasonable man”

Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41

Indicative factors include1. Importance of statement2. Time between statement and

contract3. Special knowledge or skill or

access to truth of one party4. Inclusion of statement in any

subsequent document Ellul &Ellul v Oakes (1972) 3 SASR 377

What kind of term?A term may be either: a Condition

Essential termBreach – entitlement to terminate/or damages

a WarrantyAncillary termBreach – damages, but no termination

an Innominate term Intermediate termBreach – termination if sufficiently serious

Test: how essential was the promise?“The question whether a term in a contract is a condition or a warranty, i.e. an essential or a non-essential promise, depends upon the intention of the parties as appearing in or from the contract. The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict, or a substantial, performance of the promise, as the case may be, and that this ought to have been apparent to the promisor…. Jordan CJ in Tramways Advertising v Luna Park

Tramways Advertising Pty Ltd v

Luna Park (NSW)

Ltd (1938) NSWLR 633

Associated Newspapers Limited v Bancks (1951) 83 CLR 322

WarrantyBettini v Gye (1876) 1QBD 183 per Blackburn J

said at 188:

“[a condition is] a stipulation [which] goes to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract a thing different in substance from what the defendant has stipulated for.”

Australian Consumer Law

Revise: How to read a statuteE.g. Competition and Consumer Act 2010

(Cth) – s18

Misleading or deceptive conduct              (1)  A person shall not, in trade or

commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

            

Elements of a section:PersonIn trade or commerceEngage in conductMisleading or deceptive

Defined by legislation (definitions section) or by courts (case law.)

LegislationCompetition and Consumer Act 2010

(Cth)Schedule 2 - Australian Consumer Law

Application schemeCommonwealth Act – only applies to corporationsWhy?

Part 3-2: Consumer GuaranteesDivision 1—Consumer guarantees Subdivision A—Guarantees relating to the supply of goods 51 Guarantee as to title 52 Guarantee as to undisturbed possession 53 Guarantee as to undisclosed securities etc. 54 Guarantee as to acceptable quality 55 Guarantee as to fitness for any disclosed

purpose etc. 56 Guarantee relating to the supply of goods by

description 57 Guarantees relating to the supply of goods by

sample or demonstration model 58 Guarantee as to repairs and spare parts 59 Guarantee as to express warranties

Common elementsa person supplies, in trade or

commerce, goods to a consumerCommon Elements:

Person/corporationSupplyTrade or commerceGoodsConsumer

S2:trade or commercetrade or commerce means:                     (a)  trade or commerce within

Australia; or                     (b)  trade or commerce between

Australia and places outside Australia;and includes any business or professional

activity (whether or not carried on for profit).

And case law

S2: goodsgoods includes:                     (a)  ships, aircraft and other vehicles;

and                     (b)  animals, including fish; and                     (c)  minerals, trees and crops, whether

on, under or attached to land or not; and                     (d)  gas and electricity; and                     (e)  computer software; and                      (f)  second‑hand goods; and                     (g)  any component part of, or accessory

to, goods.

S3: consumer     (1)  A person is taken to have acquired particular goods as a

consumer if, and only if:                     (a)  the amount paid or payable for the goods, as worked

out under subsections (4) to (9), did not exceed:                              (i)  $40,000; or                             (ii)  if a greater amount is prescribed for the

purposes of this paragraph—that greater amount; or                     (b)  the goods were of a kind ordinarily acquired for

personal, domestic or household use or consumption; or                     (c)  the goods consisted of a vehicle or trailer acquired

for use principally in the transport of goods on public roads.      (2)  However, subsection (1) does not apply if the person acquired

the goods, or held himself or herself out as acquiring the goods:                     (a)  for the purpose of re‑supply; or                     (b)  for the purpose of using them up or transforming

them, in trade or commerce:                              (i)  in the course of a process of production or

manufacture; or                             (ii)  in the course of repairing or treating other

goods or fixtures on land.

Case law‘of a kind ordinarily acquired for personal, domestic or household use or consumption’

Carpet Call Pty Ltd v Chan (1987) ATPR 41-025

56  Guarantee relating to the supply of goods by description

             (1)  If:                     (a)  a person supplies, in trade or

commerce, goods by description to a consumer; and                     (b)  the supply does not occur by way of

sale by auction;there is a guarantee that the goods correspond with the

description.             (2)  A supply of goods is not prevented from

being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer.

             (3)  If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply.

S56: elementsCommon elementsSupply by descriptionGuarantee of correspondence with

description

Case lawUK Sale of Goods ActS19(2) Sale of Goods Act 1923 (NSW)s71(1) Trade Practices Act 1974 (Cth)

Case Law

Ashington Piggeries v Christopher Hill [1971] 1AllER847

Grant v Australian Knitting Mills (1936) 54 CLR 49

Sale/Correspondence with description

Ashington Piggeries case:Viscount Dilhorne:

“Did the presence of DMNA merely affect the quality of the herring meal or did it make a difference in kind? If the former, then there was no failure to deliver in accordance with the description. If the latter, there was.”

55  Guarantee as to fitness for any disclosed purpose etc.             (1)  If:                     (a)  a person (the supplier) supplies, in trade or commerce,

goods to a consumer; and                     (b)  the supply does not occur by way of sale by auction;there is a guarantee that the goods are reasonably fit for any disclosed

purpose, and for any purpose for which the supplier represents that they are reasonably fit.

             (2)  A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:

                     (a)  the consumer makes known, expressly or by implication, to:

                              (i)  the supplier; or                             (ii)  a person by whom any prior negotiations or

arrangements in relation to the acquisition of the goods were conducted or made; or

                     (b)  the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).

             (3)  This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.

S55: elementsCommon elementsParticular purpose made known by

consumerConsumer relied on skill/judgement

of supplier

Case LawPurpose made known?Obvious purpose?

Underpants – Grant v Australian Knitting Mills

Reliance on seller’s judgement?

Ashington Piggeries v Christopher Hill

S54: Guarantee as to acceptable quality

             (1)  If:                     (a)  a person supplies, in trade or commerce, goods to

a consumer; and                     (b)  the supply does not occur by way of sale by

auction;there is a guarantee that the goods are of acceptable quality.             (2)  Goods are of acceptable quality if they are as:                     (a)  fit for all the purposes for which goods of that

kind are commonly supplied; and                     (b)  acceptable in appearance and finish; and                     (c)  free from defects; and                     (d)  safe; and                     (e)  durable;as a reasonable consumer fully acquainted with the state and

condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

            

  (3)  The matters for the purposes of subsection (2) are:                     (a)  the nature of the goods; and                     (b)  the price of the goods (if relevant); and                     (c)  any statements made about the goods

on any packaging or label on the goods; and                     (d)  any representation made about the

goods by the supplier or manufacturer of the goods; and

                     (e)  any other relevant circumstances relating to the supply of the goods.

             (4)  If:                     (a)  goods supplied to a consumer are not

of acceptable quality; and                     (b)  the only reason or reasons why they

are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply;the goods are taken to be of acceptable quality.

            

  (5)  If:                     (a)  goods are displayed for sale or hire; and                     (b)  the goods would not be of acceptable quality if

they were supplied to a consumer;the reason or reasons why they are not of acceptable quality are

taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.

             (6)  Goods do not fail to be of acceptable quality if:                     (a)  the consumer to whom they are supplied causes

them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and

                     (b)  they are damaged by abnormal use.             (7)  Goods do not fail to be of acceptable quality if:                     (a)  the consumer acquiring the goods examines

them before the consumer agrees to the supply of the goods; and

                     (b)  the examination ought reasonably to have revealed that the goods were not of acceptable quality.

Case Law‘fit for all the purposes for which

goods of that kind are commonly supplied’

Rasell v. Garden City Vinyl and Carpet Centre Pty Ltd (1991) ATPR 41-152

Carpet Call Pty Ltd v Chan (1987) ATPR 41-025

Flooring:Mavis was particularly interested in flooring as she had difficulties keeping her slate tiles clean. She searched for low maintenance flooring and after extensive shopping decided on single sheet vinyl flooring. She saw just the thing at Discount Lino Barn, close to Kylie’s home. Kylie indicated that she didn’t share her mother’s preference for vinyl flooring as it was cold underfoot and had suggested kitchen carpet. Kylie and Mavis spoke to Mike at Discount Lino Barn who suggested under-floor heating could address Kylie’s temperature issues. Kylie provided details of the under floor heating options while her mother left the conference room to offer slices of her coffee cake to the other staff….

She is also angry about the flooring she has had installed. Despite Kylie’s protests she went with the single sheet vinyl, and did not have under floor heating installed. The vinyl, while easier to clean than the slate, is marking and scuffing badly however. She has only had it down 6 months, and already there are a number of wear marks. Her cupcake classes – which she runs 5 times a week and more often in school holidays – are now so popular that she has at least 20 students per class. Because of her renovations she has room for them all around her lovely new island bench, but the vinyl around the island bench almost looks like a race track.

It is as if her students have worn a path around the bench – and in only 6 months. The vinyl was quite expensive – as she had heavy grade domestic installed – but Mavis is very unhappy. She hasn’t yet paid the bill for the vinyl as she has been arguing with the company. They are, according to Mavis, now getting nasty, and want their $45,000 immediately.

FridgeShe also advised that her mother was having problems with Whitegoods World from which she had bought her fridge. Kylie advised that her mother required a “French door” fridge with freezer drawers underneath to accommodate the large baking trays she used for her cakes. She had ordered the fridge she needed from Whitegoods World but had experienced delivery problems.

Her oven purchase was much more successful than her fridge which, on the very day it was due to be delivered – not only did not arrive, but the shop called her to advise that delivery was delayed for one month. Mavis said to the shop keeper: “Well that’s no good to me. I ordered that fridge for today. I need that fridge today. I told you when I needed the fridge. The only reason I ordered from you was that you told me I could have it today. If you can’t give it to me today, you can just keep your fridge!! I don’t want it anymore.” Mavis then rang Quick Fridge and ordered and received another fridge that afternoon– suitable for her requirements.

However, one month later, Whitegoods World delivered the fridge originally ordered and demanded payment. Mavis refused to accept the fridge or to pay, and advised them that the order had been cancelled. They are threatening to sue Mavis for the price of the fridge - $5,500.

OvenMavis returned to the conference room. She advised that she had had to make a large coffee cake that morning, even though her preference would have been to make cup-cakes. In fact, one of her legal problems was her cup-cake oven. Cake Cookers is a specialist retailer which sells products designed for those who like to cook cakes. It retails a number of specialist pans and other baking utensils – many imported from America and not readily available in Australia - as well as a special range of cake ovens.

They are located in Broome – and Mavis lives in NSW, but Cake Cookers sells throughout Australia by catalogue. Mavis wanted a special cake oven in her new kitchen. She saw an oven that looked perfect for her in their catalogue – the picture showed 8 slide out patty pan trays instead of oven trays – exactly what she wanted.

She rang the store and spoke to Cathy. She told Cathy all about her cupcakes, her favourite recipes, and her interest in the patty pan oven in their catalogue. Cathy told her that the patty pan oven had eight slide out patty pan holders – instead of oven racks – and that each patty pan holder would take one dozen patty pans. Even better, they came with self cleaning silicone inserts. Mavis was delighted about the self cleaning but concerned that each tray would only take one dozen patty pans. Although after discussion with Cathy, she was convinced that the overall capacity of the oven was appropriate, and so she placed an order….

Mavis advised that even if she had known about the cake order she would have had difficulty fulfilling it because of problems with her newly installed cake oven. When the oven arrived she saw that instead of Australian sized delicate patty pan holders, the cake trays were American size muffin holders – and two trays were even jumbo sized Texas muffin size holders. This is not what Mavis wanted at all.Mavis rang Cathy and told her the oven was not what she had wanted at all, and not suitable for the cakes in which she specialised. Cathy said she was sorry that Mavis was disappointed, but there is nothing that they can do about it now. Mavis wants to know if she still has to pay the $8,000 for the special cake oven.