Answer 1
1. Advise each of the parties of their rights in Contract law.
2. Advice Brian if he has any rights under Australian Consumer Law against High Five Systems and Boast Australia
Contract law extends to include all the laws as well as regulations that aim towards the fulfilment of certain promises. The Australian Contract law is regulated by the “common law” and aims to protect the consumers (ACL, 2018).
In the case of Jacob, if we consider form the point of view of Jacob than according to the advertisement, he had made a deal with the organization that is the High Five Systems by placing an order on the phone. Jacob is under assumption that he had booked a set for himself. At the time of the phone call Rhonda one of the salesperson of High Five Systems was trying to say something to Jacob but he disconnected the phone. So, the first action that should have been taken by Rhonda was to call back and make him understand what she was trying to say him at that time. Here, it can be seen that it is clear case of negligence and lack of responsibility. Here the mistake is of the salesperson as she did not made clear about the policies and procedures of the High Five System and also did not booked one set for Jacob. Jacob was right from his point of view as according to the advertisement which read as to call or walk in to place order; Jacob called and booked his set. But, Rhonda was trying to give some further explanations to her which means that the advertisements was not concise and did not included all the points of consideration. So, this can be seen as a misleading conduct on the part of the High Five System (AGCCL, 2016).[2] The Misleading or Deceptive conduct is mentioned in the S. 18 of the Australian Consumer Law which is represented in the Schedule 2 of the Competition and Consumer Act 2010. Earlier it was included in the S. 52 of Trade Practices Act (CORNWALL-JONES, 2000).[3] The advertisement of High Five Systems was not clear and was misleading this can be said on the basis of the phone call. Jacob according to the advertisement called and booked one set for him, but there was still further explanation which was remaining by the salesperson which she was trying to say to Jacob. Hence, Jacob can move the consumer law in his case on the grounds that the advertisement of the contract was misleading (ACL, 2018).
Misleading conduct
In the case of Iris it can be clearly stated that this case is of negligence. The High Five System is liable here in this case as they did not attend the phone call as well as also failed to check the voice messages. Though, according to the Exclusion clause of Australian Contract Law, the organizations will not be liable for the negligence of their employees. Hence in this case High Five System can easily run from the charges of breach of contract. And another thing is that any sales or purchase did not take place between the customer and the company. According to the Exclusion clause if any damage has been borne by the consumer because of the negligence of the employees of the organization than the company is liable to pay for the damages of less than $500. But, in this case any monetary transaction has not taken place and hence, this is not applicable in this case (ACL, 2018).[5] Iris cannot claim anything from the High Five Systems on the ground of negligence by one of its employees. Though it can be clearly said that the employee of High Five System is at fault but because of missing of any contract between the two the victim cannot claim for anything from the organization.
Lay-by Agreements according to the Australian Competition and Consumer Commission is that agreements which lets the consumers buy the products by paying the amount in two or more instalments before taking that particular product to home (ACCC, 2018).[6] In the case of Hamid he called High Five Systems to place an order on the basis of lay by agreement. He was told by the salesperson that she was not sure that whether the organization enters into lay by agreements or not and she assured him that she will contact him after consulting her boss. The boss was available the next day and informed her that lay by agreements are not undertaken at High Five systems. The salesperson contacted with Hamid and informed him about this clause of the company, but Hamid was ready to purchase the set by paying cash in once. But, till then the other salesperson had already sold all the sets to some other customer. This is clearly a case of lack of communication as well as irresponsibility and lack of urgency. The salesperson failed to contact with the boss on the same day, also the other salesperson sold all the sets to some other customer without knowing that whether any other bookings has been done or not or is there any pending decisions. Hamid can clearly lodge a complaint against this as this action has been taken because of the fault in the High Five System. The employees were not quick enough to provide the consumer with the right information as well as Hamid was first in order to place order for the set. Hence, accordingly the company should have kept the set aside for Hamid and should have sold after the final decision taken by both the parties that is Hamid as well as High Five Systems. If Hamid have paid a certain amount to the company than he could have claimed against the organization but, in this case no monetary transaction took place and hence any action related to compensation cannot be taken (ACCC, 2018).
Negligence
Ranbir ordered for all the three sets and as the package was about to deliver he cancelled all the orders by calling at the company. According to the Australian Competition and Consumer Commission the customer can cancel for a service asked within a reasonable time. Hence here Ranbir can cancel the service unless the organization has provided a specific time limit for the cancellation of the order. If the organizations policies are clear about the cancellation of the projects than there are chances that the organization would not receive back the dispatched order (ACCC, 2018).[8]
The terms of the contract were clearly defined by the High Five Systems that “No warranties or guarantees are made in relation to the efficiency of the operation of the sound systems and suitability for purpose.” This pulls the manufacturer in the picture as any defect in the sets will be questioned by the manufacturer directly as the selling company had clearly mentioned that it is not their responsibility if the sound system set will not work efficiently. In case of Brian if he wants to file a case under unfair terms than it cannot apply to his case. This is so because, according to the laws of unfair terms its rules and legislation applies to only standard form of contracts under which goods or services that are purchased by the consumer are used for personal or household uses (Australian Contract Law, 2018).[9] But, in case of Brian he has purchased the sets for educational institution which does not comes under personal use whereas it falls under business activity. Hence, Brian is not liable to file a case under Unfair Terms.
The fault or defect in the product in this case can be compensated through the manufacturer. This is so because according to the contract developed between Brian and High Five Systems, the High Five Systems had made clear in the very first place that there is no guarantee or warrantee on the products being sold. Brian has read this clause of the contract and still he wished to purchase the products which unluckily proved to be damaged. Hence, in this case Brian cannot hold the High Five system responsible, instead he can plead to manufacturer if something can happen and he can get the damaged ones replaced. Hence, in this case Brian cannot indulge into a petition against the High Five Systems as they are not liable for the damage caused (ICLG, 2017).[10] On the basis of the Australian Consumer Law, if any product has not been able to fulfil the purpose for which it was purchased then the consumers can claim for compensation from the manufacturer and manufacture is liable according to the Australian Consumer Law (Legal Vision, 2015).[11] Manufacturer can reimburse the seller and the seller can conclude the compensation by paying it to the final customer who has borne the loss (ACCC, 2018).[12]
Hence, it can be said that in the given case the High Five system has made several mistakes like, negligence, breach of contract, misconduct, lack of communication, lack of urgency, etc. The organization at the time of sales mentioned clearly in their clause that the organization does not give any guarantee or warrantee related to the products. Hence, in the end the consumer has to claim to the manufacturer for the damaged products. Though, High Five System can acts as a connecting agent between the two.
References
AJCCL, Australian Journal of Competition and Consumer Law (AJCCL) (Thomas Reuters, 2016) <https://sites.thomsonreuters.com.au/journals/files/2016/08/AJCCL-Vol-24-No-3-Contents.pdf>
ACCC, Cancelling A Service (2018) Australian Competition and Consumer Commission <https://www.accc.gov.au/consumers/consumer-rights-guarantees/cancelling-a-service>
ACCC, Consumers’ Rights & Obligations (2018) Australian Competition and Consumer Commission <https://www.accc.gov.au/business/treating-customers-fairly/consumers-rights-obligations>
ACCC, Lay-By Agreements (2018) Australian Competition and Consumer Commission <https://www.accc.gov.au/consumers/contracts-agreements/lay-by-agreements>
ACCC, Non-Delivery of Products & Services (2018) Australian Competition and Consumer Commission <https://www.accc.gov.au/consumers/sales-delivery/non-delivery-of-products-services>
ACL, Australian Contract and Consumer Law (2016) Australiancontractlaw.com <https://www.australiancontractlaw.com/>
ACL, Exclusion Clauses (2018) Australiancontractlaw.com <https://www.australiancontractlaw.com/law/scope-exclusion.html>
ACL, Misleading or Deceptive Conduct (2018) Australiancontractlaw.com <https://www.australiancontractlaw.com/law/misleading.html>
ACL, Unfair Terms (2018) Australiancontractlaw.com <https://www.australiancontractlaw.com/law/avoidance-unfair.html>
Cornwall-Jones, Jason, Breach Of Contract And Misleading Conduct: A Storm In A Teacup? (2018) AustLII <https://www.austlii.edu.au/au/journals/MULR/2000/10.html>
ICLG, Product Liability 2017 Australia (2018) Iclg.com <https://iclg.com/practice-areas/product-liability/product-liability-2017/australia>
Legal Vision, Is A Manufacturer Liable For Defective Goods? (2018) LegalVision <https://legalvision.com.au/is-a-manufacturer-liable-for-defective-goods/>
[1] ACL, Australian Contract and Consumer Law (2016) Australiancontractlaw.com <https://www.australiancontractlaw.com/>.
[2] AJCCL, Australian Journal of Competition and Consumer Law (AJCCL) (Thomas Reuters, 2016) <https://sites.thomsonreuters.com.au/journals/files/2016/08/AJCCL-Vol-24-No-3-Contents.pdf>.
[3] Jason Cornwall-Jones, Breach Of Contract And Misleading Conduct: A Storm In A Teacup? (2018) AustLII <https://www.austlii.edu.au/au/journals/MULR/2000/10.html>.
[4] ACL, Australian Contract And Consumer Law (2016) Australiancontractlaw.com <https://www.australiancontractlaw.com/>.
[5] ACL, Exclusion Clauses (2018) Australiancontractlaw.com <https://www.australiancontractlaw.com/law/scope-exclusion.html>.
[6] ACCC, Lay-By Agreements (2018) Australian Competition and Consumer Commission <https://www.accc.gov.au/consumers/contracts-agreements/lay-by-agreements>.
[7] ACCC, Non-Delivery Of Products & Services (2018) Australian Competition and Consumer Commission <https://www.accc.gov.au/consumers/sales-delivery/non-delivery-of-products-services>.
[8] ACCC, Cancelling A Service (2018) Australian Competition and Consumer Commission <https://www.accc.gov.au/consumers/consumer-rights-guarantees/cancelling-a-service>.
[9] ACL, Unfair Terms (2018) Australiancontractlaw.com <https://www.australiancontractlaw.com/law/avoidance-unfair.html>.
[10] ICLG, Product Liability 2017 Australia (2018) Iclg.com <https://iclg.com/practice-areas/product-liability/product-liability-2017/australia>.
[11] Legal Vision, Is A Manufacturer Liable For Defective Goods? (2018) LegalVision <https://legalvision.com.au/is-a-manufacturer-liable-for-defective-goods/>.
[12] ACCC, Consumers’ Rights & Obligations (2018) Australian Competition and Consumer Commission <https://www.accc.gov.au/business/treating-customers-fairly/consumers-rights-obligations>.
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