Contract Law
What legal options are available for Annie to get her money back?
Discuss any grounds on which Annie could take legal action to recover the money she has paid for the discs.
Issue: What legal options are available for Annie to get her money back?
Rule: In order to protect the rights of the consumer the Australian Government has established Australian Competition and Consumer Commission which looks after the rights and laws of the consumer as well as protects them from being cheated by the companies. Laws related to wrong that can happen with a consumer are included in this as well as remedies to different damages are also guided by ACCC[1].
Application: In the given case scenario it can be clearly seen that the customer (Anne), has become a victim of misleading or fraudulent advertisement. She entered into the contract because of the advertisement that read to her that discount is being provided, but, this was not true and Anne was charged five times the amount that was mentioned in the advertisement. This is clearly a breach of contract and the shopkeeper is here at fault as they did not paid attention to what the advertisement read. Also, the claim regarding the disc that it contains Beyoncé’s songs proved to be wrong as the disc contained only one original song of Beyoncé and rest were sung by other singers. So, Anne has been a victim of misleading as well as fraudulent claims which also charged her the five times of the amount which she expected to pay[2].
According to the Australian Consumer Law, if a consumer buys a product and it fails to serve the purpose or the intention for which it was bought, then the consumer has all the rights to claim for refund, or replacement or repair. In this case Anne purchased the discs that were supposed to include songs of Beyoncé but the discs failed in this purpose. Hence, it is the consumer right of Anne to ask for replacement or for refund of the payment that has been made by her under the influence of misleading advertisement[3]. Also, the Australian Consumer Law has mentioned that when a person buys any products or services they come with automatic guarantees that they will serve their purpose and if not so, then the consumer has the right to sue the shopkeeper for their fraudulent act. According to the law the consumer can directly claim to the manufacturer for the compensation if the product does not match with the description mentioned[4].
Australian Consumer Law
Anne in this case is clearly liable to ask for compensation as she has been misled by the shopkeepers or the distributing agencies advertisement, it is their fault and hence, she has all the rights to claim for compensation for the loss that has been borne by her[5]. In order to resolve the problem the first place that should be visited or contacted by Anne is the shop from where she purchased the discs. As it can be seen in the case that she did not get the appropriate response or help from the shop there are other institutions as well that helps the consumer in redressing their issues. Consumers can apply to their state consumer protection agencies, Industry Ombudsman, The ACCC, or for legal advice, etc.[6]
Conclusion: In this case it can be seen that Anne tried to contact with the shopkeeper but they said that it was not their mistake and it was the fault of the distribution agency who gave them the wrong advertisement. But, Anne at the time when she purchased the advertisement clearly meant that the discs were being sold at discounted rates. So, technically it’s not Anne’s fault and hence, she has all the right to claim for refund. Though, the shopkeeper transferred all the blame on the distribution agency that it was their fault, but clearly the shopkeeper is at fault that they did not checked the advertisement and placed them on their window. Hence, Anne can clearly state all these points in her complaint and can claim for the refund. Also the discs bought by her did not contain the original songs sung by Beyoncé, which was claimed by the advertisement. So, if the shopkeeper is not ready to pay her the claim she has all the right to sue the shopkeeper along with the distribution agency for undertaking fraudulent activities along with publishing misleading advertisements.
Issue: What defences Desert Island Discs have in case legal actions are taken
Rule: The defences that can be used by the Desert Island Discs includes the sign that was displayed by them which meant that the products being sold cannot be returned; also the advertising was wrong and was misleading because of the fault of the distribution agency. Application: Desert Island Discs can clearly state that they are not liable to return the product as they have clearly mentioned at the time of the purchase through a sign board which read as, “you can choose for your pleasure for ever” which means that the products cannot be returned. When it comes to the misleading advertisement Desert Island Discs can claim that the advertisement being displayed at the window has nothing to do with them as they have not written that advertisement it was written by the distribution agency that rectified their error the next day. The claim regarding the discs that it did not contain all the songs sung by Beyoncé, is clearly the mistake or fault of the manufacturer hence, the consumer should file a complaint against the manufacturer. This is so because, what is contained in the disc is not known by the Desert Island Disc also the organization claims that the consumers should check the disc before purchasing it. Hence, all these points can be mentioned by Desert Island Disc in their defence against the compliant of the customer. Conclusion: These points showcase that Desert Island is not at fault of misleading or selling items to the customers that do not contain what is mentioned in the description and hence, the are not at fault and can save themselves from this case.
Discuss whether Dodo is responsible for these debts.
Resolution of the Problem
Issue: Dudo’s responsibility for payment
Rules: The property law of Australia is dealt by the Law Council of Australia. In the given case it is the responsibility of both the joint owners of the property to repay the loan amount and other charges. This is so because according to the laws both the partners are equally liable for paying the debts if they have used a co-owned property for mortgage[7]. While entering into a co-ownership of land it is very important to make clear the share of individual partners as well as the responsibility of sharing the loan repayment between them. This was missing in this case and hence, Dodo is facing such problems[8].
Application: As a co –owner no doubt Dodo has to repay the loan amount, but Pina forged Dodo’s signature which is illegal and hence, Dodo can sue Pina for that. According to the Section 144.1 of the Criminal Code 1995 forgery is a criminal activity and there is a maximum penalty of 10 years of imprisonment to the person found guilty[9]. Dodo no doubt has to clear off the loans repayments as well as the demolition charges, but Dodo can ask for some time as well as can move the legal court in order to punish Pina and also to make him pay off his share of the loan repayment and demolition charges being demanded by the Council. Dodo can ensure that he moves the concerned regulatory and makes sure that anything can be worked in his favour. The real estate agents at the time of the property dealing provides with all the necessary information related to complaint lodging etc. hence, this should be followed by Dodo[10]. Dodo can also appeal to the bank to make sure that Pina also pays his share of repayment. As the bank was unaware of the forgery being undertaken by Pina here is nothing that Dodo can do against them, he can only request the bank to make a clear demarcation among the share of both the partners[11]. According to the laws of the Banks both the parties are equally liable to pay off the loan amount and hence, this can be used by Dodo to sue Pina and make him pay his share of the loan amount[12].
Conclusion: So, it can be clearly inferred that Dodo is liable for the payments but, he is not the only one who is liable Pina is equally involved in this and hence, has to share the loan repayment amount along with Dodo. If this is not happening then Dodo has all the rights to sue Pina in the court first for forging his signatures and second for not paying off the loan amount which is his responsibility as well. This is so because they both are co-owners of the property and hence, this bides them to pay off the loan together.
References
ACCC, ‘About us’ (Australian Competition and Consumer Commission, 2018) <https://www.accc.gov.au/about-us> accessed 16 May 2018
ACCC, ‘False or misleading claims’ (Australian Competition and Consumer Commission, 2018) <https://www.accc.gov.au/consumers/misleading-claims-advertising/false-or-misleading-claims> accessed 16 May 2018
ACCC, ‘Compensation for damages & loss’ (Australian Competition and Consumer Commission, 2018) <https://www.accc.gov.au/consumers/consumer-rights-guarantees/compensation-for-damages-loss> accessed 16 May 2018
ACCC, ‘Consumer guarantees’ in Australian Competition and Consumer Commission, 2018, <https://www.accc.gov.au/consumers/consumer-rights-guarantees/consumer-guarantees> accessed 16 May 2018
ACCC, ‘Repair, replace, refund’ (Australian Competition and Consumer Commission, 2018) <https://www.accc.gov.au/consumers/consumer-rights-guarantees/repair-replace-refund> accessed 16 May 2018
ACCC, ‘Where to go for consumer help’ (Australian Competition and Consumer Commission, 2018) <https://www.accc.gov.au/consumers/consumer-protection/where-to-go-for-consumer-help> accessed 16 May 2018.
Consumer Affairs Victoria, ‘Complaint handling and dispute resolution – estate agent obligations’ (Consumer.vic.gov.au, 2018) <https://www.consumer.vic.gov.au/licensing-and-registration/estate-agents/running-your-business/complaint-handling-and-dispute-resolution> accessed 16 May 2018.
Find Law Australia, ‘Forgery’ (Findlaw.com.au, 2018) <https://www.findlaw.com.au/articles/5039/forgery.aspx> accessed 16 May 2018.
Roberson G, ‘If a signature was forged, could the bank still enforce the loan agreement?’ (Stacks Law Firm, 2018) <https://www.stacklaw.com.au/wcw/which-case-won-could-a-bank-enforce-a-loan-agreement-where-one-of-the-signatures-was-forged/> accessed 16 May 2018
MacDonnells Law, ‘Can a Bank Enforce a Loan Agreement where one Director’s Signature was Allegedly Forged?’ (MacDonnells Law, 2018) <https://macdonnells.com.au/can-bank-enforce-loan-agreement-one-directors-signature-allegedly-forged/> accessed 16 May 2018
Makaan, ‘Property Co-Ownership| How to Avoid Disputes’ (Makaan.com, 2018) <https://www.makaan.com/iq/legal-taxes-laws/how-to-avoid-future-co-ownership-complications-over-a-property> accessed 16 May 2018
Sriram, K, ‘Co-borrower and liability’ (The Economic Times, 2018) <https://economictimes.indiatimes.com/co-borrower-and-liability/articleshow/297518.cms> accessed 16 May 2018
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