Australia has statutory protections to protect ‘consumers’ from misrepresentations by ‘suppliers’ in Schedule 2 of the Competition and Consumer Act 2010 (Cth), colloquially referred to as the ‘Australian Consumer Law’ (the ‘ACL’).
As you might be able to see already, there are a number of prerequisites that must be satisfied to be able to have recourse to these statutory protections:
Firstly, the person seeking the protection must be a ‘consumer’:
They must have paid less than $40,000.00 for the goods/services; or
The goods/services were for personal, domestic or household use; or
The goods were either a vehicle or trailer for principal use in transporting goods on public roads (eg utes, trucks etc.).
If, however, the person bought the goods for the purposes of re-selling them or using the goods in the course of a process of production or manufacture, they are NOT a ‘consumer’ and CANNOT claim protection under the ACL.
"Most people spend more time and
energy going around problems than in trying to solve them"
– Henry Ford
Secondly, the transaction must be ‘in trade or commerce’. This phrase has been interpreted broadly by the Courts and the best way to understand the limitation is that private, as opposed to business, transactions do NOT fall within this umbrella.
Buying a second-hand car from a dealer, therefore, would have protection of the ACL. Buying the same car from a private seller, however, would not.
The broadest of the statutory protections, misleading conduct (Section 18), can potentially be triggered even if nothing is expressly said, if the implication of the silence/conduct in the particular circumstances may be misleading to the other. Obviously, this has to be analysed on a case-by-case basis.
Further, it is possible for multiple parties to be caught out on this breach. For instance, if the vendor of a business makes a misleading statement to their broker and the broker repeats it to induce the seller to buy, both vendor and agent may be liable.
Section 29 of the ACL is quite comprehensive in the protection of consumers from false representations as to goods and services. Contravention of this section is also a criminal offence and is of ‘strict liability’. Strict Liability offences mean that it is possible to be in breach of the provision without meaning to.
Therefore, if a supplier says that a certain product is of a sufficient standard to be able to perform a certain job and it is not and does not, they may well be in breach of Section 29.
If you’ve been the victim of a sale or supply of goods or services that did not match the description of what was sold or supplied, you may be able to seek compensation under the ACL.
The information contained here is a highly simplified glimpse of this highly complex area of law. If you’re unsure whether you have any rights, give us a call and we can point you in the right direction!
Malkin Lawyers is a progressive boutique law firm located in Melbourne's South Eastern Suburb of Berwick, Victoria. Established in 2007 we have been servicing the legal needs of both individuals and business in the local community, statewide and nationally.