Analysis of Noosa Pty ltd - Case Study Example

Consumer Law Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Name Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Course Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Lecture Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 30th November, 2012. Issue This is an issue touching on the Consumer Contract Law1 and it involves a question of if or not a consumer has protection on the right of accommodation. The consumer in question had supposedly booked a holiday accommodation with the Noosa Pty limited. The client had completed his part in the agreement and had fully paid as requested in the contract that was to be entered. Noosa Pty ltd that was to offer the accommodation however did not honor its part of the contract by failing to obey the terms of the contract. The client had specified on the type of the room to be offered by the service provider twelve months in advance. A situation of double entry occurs and when the client goes to collect the keys in the Noosa Office, he/she is informed that there has been a double booking error and that the room was no longer available. The service provider offers the client an alternative holiday home that is not appealing to the client and gives the holiday home in question to a second booker. This case is set to determine whether the client who was the original booker of that holiday home has the right to take a legal action against the service provider who in this case is the Noosa Pty Ltd. Rule This case is in accordance with section 18 of the Consumer law of Australia and is further supported by section 52 of the Fair Practice act. It gives the consumer the provisions in charge of the regulation of unfair trade practices. In the ruling of this case, there has been deceptive and misleading conduct that has been in practice by the accommodation provider. Thereby under section 18 of the Australian Consumer Law (ACL)2, that states that not a single person who engages in trade activities has the right to take part in commercial trading practices that are likely to mislead the clients. There lacks a clear definition of what should be termed as deceptive or misleading conduct in the Australian Courts. It is however taken that deceptive conduct is a behavior or an alleged conduct that can lead a person to an error. Misleading conversely may mean creating false claims or giving the wrong information to someone else who relies on it allegedly. Some situations sees the trader with no intention of giving a client information that is misleading though they acted in an honest and reasonable way but ultimately, it is viewed to be deceptive conduct owing to ignorance of certain features. The rule of deceptive and misleading conduct can be put into many classes and in the verdict of this case, silence can be seen as the major course of the deceiving conduct in this case. There is the issue of failure to disclose some information to the client in advance and it is seen to be intentional particularly in situations where the client has to rely on it. In this case, the service provider can be said to be involved in unjust contract terms in the situation that the room agreed upon is not the room provided to the client. In this current case under study, there was a contract reached between the client and the service provider in this case Noosa Pty Ltd. Despite the fact that there was booking and payment of the holiday room by the client, Noosa Pty did not follow one of the condition; making it available when the client was in need of it and acted in ignorance in not paying attention as to whether the room had been booked earlier before allocating it to another client (Paterson, 2011). In the case, silence is seen in that the service provider failed to disclose relevant information to the client and by so doing, it may led to harm on the part of the client. In this case silence can be seen as a crime like any other since it is a situation of not disclosing pertinent information (Webb, 2000). On the other hand, there is a context under which silence can be measured. There is the mere silence that comprises circumstances where there are particular matters or information that exists but is not being disclosed. According to Corones, (2011), the silence that may be attributable to misleading conduct can be seen in situations where there is a relationship between parties in a contract that expects them to have a duty to reveal relevant information, and when 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. Application Noosa Pty ltd can be said to be inattentive and ignorant of this, at the same time they have deceptive and misleading conduct in the perspective that they not concentrate to the bookings that of their hotel hence a client is entitled to take legal action against them. This can be said to fall under section 18 of the Consumer Law3, where a client can sue the service provider for basing on deceptive and misleading conduct. It is clear that the client also is entitled to suing them on condition that he/she 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 this is according to Goldring, Maher, McKeough and Goldring, 1993. In this case the second booker would be the one to leave the room for the first booker and the second booker will move into another room. If the original client is transferred, it would mean that the fulfillment and the comfort that the client would have received in the newly allocated room would not be the same as the one that they enjoy if they had been given the room they had initially booked. There is the issue of sales talk puffery and it is seen to be a misleading conduct if the statement given is competent of leading into error and in situations where the client may attach importance to the words this is evident in the case of Mr. Figgins v Centrepoint Freeholds4. Statements of future goals, assurance, forecasting or opinions may be misleading. In this case the service provider assures the client that he/she will get the holiday room only for the client to be informed on the double entry error when correcting the key at the service provider’s office. This is against Section 51A(1) Trade Practices Act/Section 37 Fair Trading Act5 that states that where a corporation makes a representation about a future matter and the corporation does not have reasonable grounds for making the representation, the representation is deemed misleading. Section 51A (2) state that the one representing has the responsibility of showing that there were sensible basis. Silence is misleading where, having regard to all the facts and circumstances, there is a reasonable expectation that, if a particular matter existed and actual knowledge of the fact is possessed, it would be disclosed, this is evident in the case of Demagogue Pty Ltd v Ramensky6. Section 53 Trade Practices Act/Section 40 Fair Trading Act7 prohibits the making of false representations in connection with the supply of goods or services. Also as in the case of Demagogue v Ramensky8, silence can mean a misleading conduct. The service provider did not inform the client of the other booker prior to the client’s reporting day, this silence can be deemed misleading. Conclusion There are maintained remedies by the Australian Consumer Law 9 for any deceptive misleading conduct. The remedy is supported by section 52 of the TPA and all State and Territory fair trading Acts (FTAs)10. This is the mistake of the proprietor thus he/she can be liable for contriving the contract because the double booking was resulting from his neglectful act. The client did suffer harm as a result of the service provider not being dedicated on these bookings. In the penalty or remedies that are to be set, civil punishment or criminal sanctions are not applicable under section 18.This due to the fact that, this section focuses more on businesses where there can be instances of misleading conduct on the part of the client. The Australian Consumer Law 11 has set remedies such as; there can be direct negotiations with the service provider on alternative solution of being given the initial booking place that the client had ordered and the second client should be the one to take the alternative room. Another cure should be that which can be negotiated in writing. The client would write a letter to the management about the ignorance and lack of proper booking strategy in the company basing his/her complaint on silence until notification in the last minute. The client would also have claimed for compensation owing to the fact that even if he was given an optional room, it would not have the same fulfillment as the alternative room that he/she would be given. The client can also seek for the court’s intervention in a situation where the customer can demand for a reimbursement. References Australian Consumer Law (ACL) Demagogue v Ramensky (1992) 39 FCR 31, 32 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. Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23, 56 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