Tute 8 Unsolicited Consumer Agreements PDF

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Tute 8: Unsolicited Consumer Agreements  

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What is the conduct complained of: Sally doesn’t want the edu package anymore and she wants to return it and get a refund but SI is refusing to return the money. Why is this of concern? She has a credit card debt of 4000$ and if she doesn’t pay her instalments she’s likely to be faced with default fees and low credit card ratings affecting her financial situation in the future. Who is the legal entity alleged to have engaged in the conduct: SI pty ltd What’s Sally’s difficulty legally speaking: she entered into contract on 2nd of march and received the things on the 7th. There are 5 ways in which a contract can be discharged/ended: …, performance, frustration, breach, operation of law. On the 7th as soon as Sally received the package the contract was discharged through performance. so now they owe each other nothing. So how can Sally get 4000 back now? Equity will intervene in terms of unconscionable conduct, undue influence and now ACL. Statute can intervene to declare certain terms unfair despite the 2 parties agreeing to it. When you have a commercial relationship bet 2 parties, the fundamental legal relationship is governed by common law contract law. However these laws are augmented and changed by equity and also through statute. Application of the unsolicited consumers regime to Sally’s contract. Start with s 69 of the acl – we have to satisfy each element. S 70 creates another presumption in favour of Sally – if Sally says it is an unsolicited consumer agreements, then it is unless the other party rebuts it. Whether Sally succeeds depends on if SI can rebut it through the 4 elements. S 3 – meaning of consumer- Sally would be considered to have acquired the edu package as a consumer if g and s cost less than $40,000. Doesn’t matter that she is purchasing it to make income or if it was for the purpose of a business. S 69: certainly in trade and commerce. Bears a commercial character (concrete construction) Dealer definition: s 71: a dealer a person who in t and c enters into negs with consumer – evan here is the dealer even though hes not the supplier of g and s and SI is. S 77: liability of suppliers for contravention by dealers. Diff with s 139b(ii) of cca. This section imposes liability whereas the other one just imposes conduct. S 71 automatically makes distinction bet a dealer who is not a supplier of g and s. so s 77 says this supplier will be liable for the dealer no matter who the dealer is. – this has to do with the strange structure of door to door and telemarketing sales. Supplier will also be taken to have contravened the section – no matter how far removed the supplier is. How can the supplier ensure that the dealer is doing the right thing: even if the dealer goes rogue, supplier will still be liable (s 77 creates absolute liability- strict liability). Supplier probably has remedies in contract law and may also have negligence actions against the dealer. The supplier would seek an indemnity against the dealer. Back to s 69: consumer did not invite the dealer to come to that place, or to make a telephone call. SI might attempt to say that she impliedly invited the dealer to make

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the telephone call such that by returning the call, she solicited the call because she was the motivated buyer. S 69 1A (b) gets around that argument. D: ascertainable at the time and it is more than $100. From here, think about what it is that Sally wants: her $4000 back. Is there some provision in ucra that would give sally her money back? S 83 effect of termination – rescission in terms of contract law means that the contract is terminated by mutual consent and gets the parties back to the position they were initially in. s 84 then says if this has happened then the supplier must immediately upon notification return any consideration given by the consumer. Sally has to demonstrate that she terminated in accordance with s 82(3) and look for termination period. Sally under this section has the right to terminate under 3 options whichever comes earlier. 1. There’s a blanket 10 day termination period even if you’ve used it even if paid for it etc. what was the date on which the agreement was made? 2nd march. When was sally given agreement document? 7th march. Sally can therefore terminate the agreement between 2nd and end of 10th business day after 7th march. Business day means a day that isn’t weekend or public holiday. Thursday 21st March. End of business day is actually not 5 pm (trading hours) but end of the day. There’s no legislation that talks about it but all the cases always accept the 24 hr period. So end of 10th business day would be 11:59pm 21st March. This is because telemarketing can occur round the clock, because most people at work until, etc. cooling off period is the 10 days. 11:59 is based on the consumer’s time in cases of different time zones. And 3rd one: the day after 7th is Friday 8th march- 3 months from Friday 8th march- 8 June. 6 months  after 8 September. 4th: such other period as the agreement provides. Does clause 16A supersede all these other periods? No because it says whichever of the periods is the longest. What about the argument that you’ve used the goods and you’ve waited too long: a right of termination may be exercised despite affirmation of the agreement by the consumer and even though the agreement has been fully executed. S 82 (2). So Sally’s outside the defined period. S 73 times when they can be called. Lets assume Evan called at 4:30 and Sally returned call at 6:30 pm. Subsection 2: in accordance with consent. Can SI argue that she gave consent by returning call so subsection 1 doesn’t apply? Purpose of that provision is to protect consumers at certain times from being hassled but also recognises that consumers might be interested in the products and so that requirement is waived if consumer consents. S 73, 74 and 75 doesn’t apply to telemarketing Call on in relation to negotiating an unsolicited consumer agreement does not include telephone call – def section. S 73 dealer must not ‘call on’, s 74 a dealer who ‘calls on’. However def of call on excludes telephone call. Note: on the bottom- telemarketing in aus is governed by 2 pieces of leg. In aus we have a hybrid regulatory system the act, standard and to the extent to which ACL is not inconsistent with those 2, it too does apply. Do the other legislation – telecommunications industry standard and other act give remedies to Sally- no. this means that s 73 74 and 75 will not apply to telemarketing

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calls. If that’s the case, Sally can’t access that termination period. That leaves us with the 6 month termination period (the 3rd of the 4th termination periods). If Evan has breached s 76 and SI has breached any part of s 86, then under 82(3)(2) then termination period starts on 2nd march and ends at end of 6 months from 8th march (day after day which Sally received) S 76 must be given all this info- we don’t know on these facts but lets assume that she was. S 86 most crucial one for Sally – prohibition on supplies. Sally got the docs on thurs 7th. 10 busn days after that is midnight 21st – SI should not have supplied docs or accepted payment until 21st. SI accepted payment on 2nd. 2 major forms of consideration for a contract- executed and executory consideration (promise to pay). So just concluding contract doesn’t necessarily mean payment has been accepted. How do we know SI accepted? Because just under a week later she has a receipt and she has the goods before the 10 day period. So 6 month period applies she terminated 3rd June which is well within that period. Therefore Sally gets her money back. S 85 they can pick it up – she can return? Or tell them to pick up. If they don’t pick it up after 30 days they become property of Sally...