Law4702 Competition And Consumer Law Assessment Answers

Answers:

Issue

Weather Das can claim compensation against the parking lot for his stolen car.

Rule.

In the case of L’Estange v Graucob (1923) 2KB 394 it was held by the court that any person who signs a document is legally bound to it.

In the case of Olley v Marlborough Court Ltd (1949) 1 KB 532 it was held by the court that the term of the contract which is brought to the notice of the party after the contract has been formed is not valid. If the term was not notified to the other party during the time when the contract was formed such term cannot be legally binding. In addition it was provided by the court that where the liability of one party does not allow it to include exclusion clause in relation to such liability the clause is not valid.

In the case of Interphoto Picture Library v Stiletto Visual Programmes Ltd (1988) 2 WLR 615 it was decided by the court that if there is an unusual condition which is sought to be imposed on a party to the contract that term has to be brought clearly to the attention of such party. If such term has not been brought to the attention of the party clearly the term cannot be effective and is therefore invalid.

In the case of Thornton v Shoe Lane Parking Ltd (1971) 2 QB 163 it was provided by the court that an exclusion clause cannot be Incorporated into a contract after the contract has already been formed without providing reasonable notice to the other party.

In the case of Causer v Browne (1952) VLR 1 it was provided by the court that the exclusion clause was not valid because the other  party did not know that there were additional conditions into the contract, reasonable steps were not taken by the shopkeeper to bring the additional turn to the notice of the party, the other party did not know that they were receiving more than just a voucher and there was no evidence which would suggest that for cleaning purposes terms were incorporated in such way.

Application

In this case dash Mark Park his car in the parking lot of the defendant. There was a contract between the two parties according to which the Car park was supposed to take care of Mark’s car for a consideration in form of the parking fee paid by Mark.

However Mark found that his car missing due to the negligence on the part of the Car park as they handed the key to one of the customers who was having problem in locating his own car keys. According to the rules discussed above an exclusion clause has to be brought to the notice of the party before the contract is formed. In this case no initiative was taken by the Car park to make Mark  aware of an exclusion clause which stated that the Car park will not be responsible for any loss caused to the cars. It was pointed out by the Car park that the exclusion clause was printed in front of a hotel. However such Hotel was never visited by Mark therefore the exclusion clause was not seen by him. As the contract was formed when the car was parked by Mark in the Car park and presence of the exclusion clause was not clearly communicated to him by the Car Park the terms are not valid. In addition the purpose of a Car park is to take care of the cars parked in it. Therefore the parking lot cannot evade a liability for negligence by the inclusion of the exclusion clause.

Conclusion

As the exclusion process was not brought to the notice of Mark when the contract was formed between him and the parking lot they exclusion clause is not valid. In addition exclusion clause would have also not been valid as it is not allowed to a liability for negligence by the incorporation of such clause.

Part A

Issue

The issue in this case is determining whether Tony has made an advertisement in accordance to the Australian Consumer Law.

Rule

Section 18 of the Australian consumer law as provided by schedule 2 of the Australian Competition and Consumer Commission Act 2001, states that “a person during trade and comer must not indulge in a conduct which is deceptive and misleading or is likely to mislead and deceive”.

In the case of ACCC v Telstra Corporation Limited (2007) 244 ALR 470 it was held by the curt that advertisement can also lead to a misleading and deceptive conduct if they are not true.

In the case of Glaxosmithkline Consumer Healthcare Ltd. Vs. Abbott Healthcare Pvt. Ltd. and Ors.;2009(40) PTC 437  it was provided by the court that although comparing products is allowed in Australia the comparison must provide all necessary details about the product to make it a fair comparison.

In the case of Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 it was ruled by the court that not only the customers but also the competitors can be sued under section 18

Application

In the given circumstances the advertisement which had been made by tony was not true and did not provide accurate information to the consumers. Therefore as per the principles of section 18 and the case of Telstra it would be considered as a misleading and deceptive conduct

According to the principles of Glaxosmithkline case tony did not make a fair comparison between the services provided by the other hotels and his hotel as he failed to provide that the other hotels also provided similar services therefore his conduct is misleading and effective.

As per the principle of the Gillette Australia case the competitor hotels and the consumers can both sue tony for the misleading and deceptive conduct

Conclusion

The advertisement made by tony is not in accordance to the ACL.

Part B

Issue

The issue in this case is to determine whether Tony’s plan in relation to offering holiday to the old would succeed or not.

Rule

Section 18 of the Australian consumer law given by schedule 2 of the Australian Competition and Consumer Commission Act 2001 states that “a person during trade and comer must not indulge in a conduct which is deceptive and misleading or is likely to mislead and deceive”.

The requirements for the breach of this section are that

A person has indulged in a conduct

The conduct is in trade or commerce

The conduct is deceptive or misleading or may mislead or deceive

Trade and commerce according to section 2 of the legislation means an economic activity within Australia and a business dealing between a place in Australia and a place outside Australia.

According to section 20 of the Act a person must not indulge in an unconscionable conduct in trade or commerce. A conduct is unconscionable if a person takes advantage unfairly as he has a strong bargaining position in relation to a person at disadvantage. Consumers may be at a disadvantage if they have low income, non-English background, illness, disability, homeless, old, very young, indigenous or having remote area.

Application

In this case the plan made by Tony involves getting into a contract with people who have difficulties in reading and writing. He induced such people to get into a contract through showing the pictures of his hotel and boat to book a holiday. The residents who had signed the contract worth $16000 has disability and were on wheel chare which would prevent them from going to the trip. Therefore as discussed in the rules above Tony’s action have breached section 20 of the ACL.

Conclusion

Tony’s plan cannot succeed as he is not allowed to do so under section 20 of the ACL.

References

ACCC v Telstra Corporation Limited (2007) 244 ALR 470

Australian Competition and Consumer Commission Act 2001

Causer v Browne (1952) VLR 1

Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629

Glaxosmithkline Consumer Healthcare Ltd. Vs. Abbott Healthcare Pvt. Ltd. and Ors.;2009(40) PTC 437 

Interphoto Picture Library v Stiletto Visual Programmes Ltd (1988) 2 WLR 615

L’Estange v Graucob (1923) 2KB 394

Olley v Marlborough Court Ltd (1949) 1 KB 532

Thornton v Shoe Lane Parking Ltd (1971) 2 QB 163