Building Law: Australian Consumer Law

Building Law: Australian Consumer Law

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Building Law: Australian Consumer Law

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Building Law: Australian Consumer Law

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The Australian consumer law has been enacted to ensure fair trading and consumer protection in Australia. The ACL become effective in Australia from January 1 2011. The ACL is the result of corporation between the state governments and the commonwealth for the establishment of a common and strong consumer law framework within the country. The sale of land in Australia is covered under the provisions of the ACL to the extent that the purchaser has entered into the contract for utilizing the land for a domestic or household purpose. There have been various cases reported in Australia where fraud and misrepresentation has been involved in the sale of land transaction. Another major problem which is faced by the consumer in contracts related to the sale of land are unfair terms. The ACL has laid down various provisions to protect the consumers against the misrepresentation and unfair terms in relation to consumer contracts. The structure which has been provided by the ACL in relation to misrepresentation and unfair terms and its effects on the sale of land transactions are discussed in this paper.  The concepts would be discussed through the use of appropriate section of the ACL as provided by Schedule 2 of the Australian Competition and Consumer Act 2010 along with specific cases related to consumer contracts regarding sale of land in Australia.
Section 18 of the ACL states that persons while doing a transaction related to trade and commerce must not base their conduct on any form of misleading or deceptive practices in addition they must also not indulge in practices which they think may deceive or mislead the consumers. A wide range of activities in businesses are covered under the section which includes advertisements, commercial negotiations and contractual agreements. The identification of a conduct as misleading or deceptive is based on the question of fact, which means that it is determined by using the situation surrounding the case. In the same way the section is also applicable on the transactions related to the sale of land. The specific section which deals with misrepresentation related to property transaction in Australia is governed by section 30 of the ACL.
The section provides that in trade and commerce an individual must not with regards to the grant or sale or possible grant or sale of a property or with respect to promoting a property through the use of any means such as grant or sale of property indulge in an act of misrepresentation. An act of misrepresentation may arise out of making a misleading or false representation that a person has an approval, sponsorship or a affiliation in connection to the land, the nature of the land, the place where the land is situated, the features of the land, provisions related to lawful use of the land and the accessories and facilities attached to the land.  The section further reads through its note that the person breaching the section would be imposed with a pecuniary penalty as determined by the court. No other provisions as provided by part 2-1 of the act with respect to acquisition, supply or probable acquisition or supply of an interest is land is affected through the application of this section. along with pecuniary penalties the contravention of the section may also initiate remedial orders, civil proceedings for damages and injections.
The provisions of the ACL are ONLY applicable on those transactions which do not exceed the value of 40000 or those which have been entered into only for household or domestic purpose. Thus when the question related to the same of land arises only those contracts are governed by the ACL which have been entered into for the household or domestic purposes.
As provided by section 18 it is not compulsory that the actions of a person have to actual mislead or deceive another but even if the conduct is likely to do so it is considered as a contravention of the section.
The question which has to be addressed now is that what actions may be deemed to be false or misleading. The courts through various cases have provided guidelines to determine what may be considered as false or misleading. In the famous case of Given v Pryor (1979) 39 FLR 437 the judges ruled that the concept of misrepresentation is not only limiter to statements which are verbal but also extend to gestures, plans, demeanor, pictures, written , oral or implied actions, maps and other conducts. Moreover, not disclosing a relevant fact where such action most probably would cause harm to the other would also be considered as misrepresentation.
In Given v CV Holland (Holdings) Pty Ltd (1977) 29 FLR 212. The court ruled that representation is defined as an action which is not in accordance to the original facts. Thus no intention to make actual misrepresentation is required on the part of a person providing contrary facts. Even if there is belief that such representation is actual true they would be liable for penalties.
The judges in the case of Latella v LJ Hooker Ltd (1985) 5 FCR 146 ruled that in order to make a claim for misrepresentation it is not necessary that such claim only has to be brought by the person to whom the misrepresentation is made but, the only thing which is require is that such conduct has been engaged in and as a consequence losses have been incurred by another.
The case which has been chosen for discussion under part of the paper is the case of Australian Equity Investors, An Arizona Ltd Partnership v Colliers International (NSW) Pty Ltd (No 4) [2011] FCA 442.  The question which was to be addressed by the court was that the achievement of gross realization with respect to the development of land would be considered as a misleading or deceptive conduct under the provisions of section 52 of the Trade Practices Act 1974 (Cth) (which is now section 30 of the ACL) . Another question which the court had to determine was that whether the representation which was made was false related to price for the land in relation to the breach of the section 53A of the TPA (which is now section 30 of the ACL).
 It was held by the court that the first respondent engaged in a conduct which could likely deceive or mislead the applicant by make a representation with respect to a gross realization which could be achieved and breached  the provisions of section 52 of the TPA. In addition the court also ruled that the respondent breached section 53A by providing false representation in relation to the price payable for the property.
It was further ordered by the court that the respondent was to pay the cost of appeal incurred by the applicant. In addition a fine of $100,000 was imposed on the respondent. The court also provided leave to the applicant to file a notice of motion to seek further security in relation to the cost.
The court in relation to this case referred to the case of  Australian Competition and Consumer Commission v Gary Peer & Associates Pty Ltd (2005) 142 FCR 506 in which it was found by the court that a person who had been provided authority to act as a vendor provided a misleading price guide towards the auction of the premises. The court found the action in breach of section 53A of the TPA.
Unfair Terms
The prevention upon the inclusion of unfair contract terms in relation to a standard form of consumer contract also has the potential to extend to transactions which are related to the sale of land. Consumer contracts as defined in the ACL also cover contracts which are entered upon to affect a grant or sale of an interest which exists in a land to a person predominantly or wholly for domestic or household use.  Thus as opposed to the purchase of land for the purpose of investigation, the purpose of land for residential purpose would come under the scope of consumer contracts and could have a term which may be declared as unfair. In addition it has to be noted that the provisions f unfair terms are only applicable to consumer contract which are fixed from contract. This part of the paper discusses the structure of unfair terms provisions in relation to the ACL and the effect of such provisions on sale of land transactions (Griggs 2011).
The ACL has taken into account application to legal practitioners and their clients related with property contracts which includes leasing or sale of land to individuals. The three main issues which determine whether a a contract would come under the scope of unfair terms are that whether the contract is a consumer contract,  is the consumer contract is a standard form of contract and whether the contract contains any unfair terms (Kolivos and Kuperman 2012).
The initial issue is to determine whether a sale of land contract is a consumer contract or not. According to the ACL a consumer contract is a contract for the grant or sale of a interest in land, to a person who is acquiring such land predominantly or wholly for  household, personal or domestic use. Through the notes it has also been added that the scope of the definition extends to a lawful or equitable benefit in land or any power, right or privilege in connection or over the land. It also includes purchase of “off the plan” and completed developments. Rights related to occupancy with respect to a company title which includes land ownership are also covered by the definition.
If it has been found that the contract is within the scope of consumer contract it has to be further analyzed that whether such contract is a standard term contract or not. Matters which has to be considered  by the court in relation to determining a standard form or contract may be what the court finds relevant in accordance to the circumstances of the case however the court has to take into account certain factors such as:
Negotiation powers: This means that whether the bargaining power in a contract is vested wholly or predominantly in only one party.
Preparation of contract: whether the contract was prepared by one party without indulging in any discussion with the other.
Accept it or leave it: whether one party was offered the contract in such a way as to either accept it or reject it with no scope of any negotiation.
Particular characteristics: Whether the provisions consider the particular features of another party in relation to a particular transaction along with any other matter which is prescribed by the existing law.
Once it has been analyzed by the courts that the contract for the particular land is a “Standard Form of Consumer Contract” the provisions of unfair terms would be applicable. What are unfair terms are provided by Section 24 of the ACL.
For a term to be declared as unfair in relation to a sale of land contract three provisions have to be satisfied. Firstly there would be a significant imbalance with respect to the parties’ rights and obligations in relation to such contract. secondly, the inclusion of the term is not necessary for providing protection to the rights of a party who has included such term and is provided benefits through it. Lastly, any amount if detriment would be caused to one party if such term is added and relied upon by the parties (Lawson 2011).
When the court are provided with a question to determine an unfair term they have to take into account all the provisions of the contract that is the contract as a whole. The need of transparency is related to presentation, availability, legality and the use of plan language in relation to the term. Examples Non-exhaustive in nature have been provided by the ACL in relation to unfair terms. The following acts which  party can do unilaterally may account to unfair terms. The limitation or avoidance related to the performance of contract, termination of contract, variation in relation to the terms of the contract, renewal or non renewal of the contract, variation of the upfront price where the other party does not have right to terminate and the variation of the features of the benefits in land to be granted or sold through the contract (Webb 2016).
In addition specific provisions have been provided by the ACL setting out exclusion of a term from being declared as unfair. The provisions state that terms setting out price payable upfront in relation to the contract but not considerations which depends of contingencies are not unfair. For instance the price to be deposited or the selling price of the land would be considered as a upfront price but not the payable interest on defaults. The terms setting out the terms of the contract are also not considered as unfair terms. These terms include the description of the land being sold, leased or granted. However, the same provisions would not be applicable on “off the plan” sales which could be varied in terms of completion. Any provisions which would allow the builder to change the property to be sold would be considered as unfair terms. Lastly the terms where it is expressly provided by existing legal provisions to be added are also not considered as unfair terms.
A term which is declared as an unfair term is void and is removed from the contract for the sale of land. However, if after the removal of the unfair term the contract can be continued than the contract is still regarded as legally binding. The other consequences which may be applicable on the breach of ACL provisions are a civil pecuniary penalty which includes $1.1 Million fines for Corporations and $220000 for natural persons. Unfair terms may also result in disqualification orders preventing managers from managing the corporation. Infringement and substantiation notices may also be provided for such terms. Notices to issue warnings to the public in relation to the conduct of the corporations may also be issues if these provisions are breached. Lastly, court may order the wrongdoer to compensate the aggrieved party for any losses incurred by them (Corones 2011).
The property businesses and the individuals engaging in the sale of property must balance with other provisions which provided them unilateral and discretionary rights. For instance limiting permitted changes to small variation and ensuring further disclosures.  They must also make sure that well structured and clear documentation is initiated. The documents have to outline the legitimate interest of the purchasers. The businesses must also keep records of business rationale in relation to verdicts including key terms which might be subjected to challenges latter (Competition 2011).
Since the ACL has been initiated from January 1, the ASIC has been able to successfully procure penalties in a few cases. One of such cases is the case of ACCC v Bytecard Pty Ltd 2013 where the new ACL provisions related to unfair terms had been analyzed by the court. In this case the ASIC was able to procure penalties from the company for the inclusion of unfair terms.
ACCC v Bytecard Pty Ltd 2013
Australian Competition and Consumer Act 2010
Australian Competition and Consumer Commission v Gary Peer & Associates Pty Ltd (2005) 142 FCR
Competition, A., 2011. Green marketing and the Australian Consumer Law. Commonwealth of Australia.
Corones, S.G., 2011. The Australian Consumer Law. Thomson Reuters Lawbook Co.
Covell, W., Lupton, K. and Forder, J., 2012. Covell and Lupton: Principles of Remedies.
DIETRICH, J., 2015. Liability arising from contract and under the australian consumer law.
Given v CV Holland (Holdings) Pty Ltd (1977) 29 FLR 212
Griggs, L.D., 2011. Australian Consumer Law-An overview, unfair contracts, consumer guarantees and remedies. In Australian Consumer Law (pp. 1-9).
Kolivos, E. and Kuperman, A., 2012. Consumer law: Web of lies-legal implications of astroturfing. Keeping good companies, 64(1), p.38.
Latella v LJ Hooker Ltd (1985) 5 FCR 146
Latimer, P., 2012. Australian Business Law 2012. CCH Australia Limited.
Lawson, R.G., 2011. Exclusion clauses and unfair contract terms. Sweet & Maxwell.
Webb, E., 2016. Unfair terms and small businesses. Australian consumer law, 31(1).

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