The Use of Section 18 of the Australian Consumer Law to Bring an Action against Accommodation Noosa - Case Study Example

Running head: Consumer Law Consumer Law Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Name Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Course Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Lecture Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 26th November, 2012. Issue The issue is about booking a holiday home in advance where there has been confusion of double booking but the owner of Accommodation Noosa Pty Ltd gets concerned and gives an alternative holiday home. This essay will focus on section 18 of the Australian Consumer Law (ACL) 1contract where there will be a ruling and application of the case above and any recommendation that can be remedies to the case. In this case, silence is seen to be the main misleading and deceptive conduct because the owner of the hotel Accommodation Noosa never made it known in advance to the supposed customer that there was double booking and in any case, since he was the initial client, he would have the privilege of taking the holiday room first. In the essay, the general rule that is subject to prohibition on misleading conduct is section 18 of the Australian Consumer Law 2that was formerly section 52 of the Trade Practice Act 19743.Using this Act to judge the case under study, silence is seen to contribute to professional misconduct. Rule According to Section 18 of the Australian Consumer Law4, part 2-1 relates to misleading and deceptive conduct where no person involved in a contract is supposed to engage in deceptive conduct whether in delivery of services or goods. It is also in the same legislation where it is stated that in a situation whereby a party contravenes either directly or indirectly on terms agreed and conditions and another party does not follow to the latter is eligible to commit a misleading and deceptive conduct. In the case under study, there was a contract reached between the client and the proprietor of Accommodation Noosa but though there was booking and payment of the holiday room, the owner did not follow the condition of making it available when the client needed it and he was ignorant not paying attention if the same room had been booked before allocating it to another client (Paterson, 2011). In the case, silence is viewed as not disclosing relevant information to the client and by not disclosing, it may lead to harm on the part of the client. In this case silence can be termed to be a crime like any other if it is a situation of not disclosing relevant information (Webb, 2000). On the other hand, silence has measures and the context in which it can be measured. Mere silence can include circumstances where there are particular matters or information that exists but is not being disclosed. Silence may be attributable to misleading conduct in situations where: There exists a relationship between parties in a contract that expects them to have a duty to reveal relevant information. There are circumstances where either party has a responsibility over the other under reasonable expectation to rely on some information that if given, can change the terms of contract (Corones, 2011). Application Accommodation Noosa can be said to be negligent and ignorant and at the same time have misleading and deceptive conduct for not paying attention to the bookings that are taking place in their hotel hence a client is eligible to suing them. Under section 18 of the Consumer Law5, a client can sue them basing on misleading and deceptive conduct. The client also has a right to sue them on condition that they had paid in advance hence they knew that there was a person who had originally booked the room and there would be no instance when the room would be transferred to someone else (Goldring, Maher, McKeough and Goldring, 1993). This would therefore make the second booker be the one to be transferred to another room. Transferring the original client would mean that the satisfaction and the luxury that the client would have gotten would not be the same as the one that they would have enjoyed if they had been given the initial booked place. Double booking is seen as the mistake from the accommodation providers and this situation is applicable in other cases such as in the case of Butcher v Lachlan Elder Realty Pty Ltd6, where there was an advertisement that contained two disclaimers where a real estate agent was not sure of a certain source of information and the advertising which went to the public was said to be misleading. In the above case, it was held that the information that was relayed to the public was misleading hence the agent was held liable. Silence was also found in the case of Lam v Ausintel Investments Australia Pt Limited7where the court ruled out that the parties were dealing at an arms length meaning that there was no relationship but in commercial terms. In this contract terms, all information was rendered to be useful in the negotiation and failure not to disclose any information that would be relevant for the contract to mature would be termed to be deceptive conduct on either party. In the case, being silent with some information on either party satisfied that they were guilty of deceptive misconduct. In the case, it was expected that there would be reasonable expectation of any information on the bookings that had been taken by the client but on the side of the accommodation provider, he did not inform him in advance as that information would have been of importance to the client. Reasonable expectation is seen in the case of Hai Quan Global Smash Repairs v Ledabow Pty Ltd8 where the applicants purchased a panel beating and spray painting business from the defendant. During the pre-contractual negotiations, the defendant informed the applicants that the company engaged in some work for two other companies but failed to inform them that for them to still remain under contract; they had to re apply for the contract to retain the work. With no such information being given to them, they believed that the contract was still in existence and the work would continue as mentioned earlier. The company was liable because they claimed that the defendants had not provided the relevant information which led to breach of contract as stated in section 52 of the TPA hence misleading conduct on the part of the service provider. Conclusion The Australian Consumer Law 9maintains punishment for any misleading and deceptive conduct and is supported by section 52 of the TPA and all State and Territory fair trading Acts (FTAs)10.Since it is the mistake of the proprietor, he can be liable for contriving the contract because the double booking was as a result of his negligent act. The client suffered harm as a result of the owner not being keen on the bookings. In the punishment or remedies that are to be given, civil penalties or criminal sanctions do not apply under section 18.This is because this section focuses more on businesses where there can be instances of misleading conduct on the part of the client. The Australian Consumer Law 11has remedies such as there can be direct negotiations with the hotel management on an alternative solutions of being given the initial booking place that the client had ordered and in their negotiation, the second client should be the one who should take the alternative booking. Another remedy that can be negotiated is writing as complaint letter to the management stating of the unfair terms that the hotel engaged in while being allocated a holiday room. The client can also sue for damages because the cost of the alternative room would not offer the same quality of comfort that the client would have if they had been given the initial room that they had booked for. The client can also seek for the courts to intervene in a situation where the client can demand for a refund. The court can defend the plaintiff because in consumer law, a client has the right to decide on the choice of what they want hence they have a right to be compensated or refunded if the services that they are given do not in any way satisfy them or conform to their wish. References Australian Consumer Law (ACL) Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60. Corones, S. G. (2011). The Australian consumer law / S. G. Corones. Pyrmont, N.S.W. : Lawbook Co. Goldring, J., Maher, L. W., McKeough, J. J., & Goldring, J. (1993). Consumer protection law / John Goldring, Laurence W. Maher, Jill McKeough. Sydney: Federation Press. Hai Quan Global Smash Repairs v Ledabow Pty Ltd (2004) ATPR 42-025. Lam v Ausintel Investments Australia Pt Limited (1989) 97 FLR 458. Paterson, J. (2011). The new consumers guarantee law and the reasons for replacing the regime of statutory implied terms in consumer transactions. Melbourne University Law Review, 35(1), 252. Trade Practice Act 1974. Webb, E. (2000). Consumer protection law / Eileen Webb. Chatswood, N.S.W.: Butterworths. Read More