Key concepts

1. Person Section 131 CCA provides that the conduct of a corporation is applicable to contraventions of Chapters
2, 3 and 4 of Schedule 2 of the CCA. Therefore, when the element of a 'person' appears in the sections under
these chapters, it can also refer to a corporation.
2. Supply + Acquire s 2(1)ACL
(a) in relation to goods – supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase (not
auction)
(b) in relation to services – provide, grant or confer; and, when used as a noun, has a corresponding meaning,
and supplied and supplier have corresponding meanings. (accept)
Supply/acquire: s 11
Agreeing to supply/acquire [S11(b)], supply/acquisition of goods/services together with other property or
services [(s11(c)/s11(d)]
3. Trade or commerce s 2(1)
(a) trade or commerce within Australia; or
(b) trade or commerce between Australia and places outside Australia; include any business or professional
activity (whether for profit or not)
4. goods s 2(1)
Services s2(1)
E v Australian Red Cross Society blood transfusion = services
5. Consumer s3
A person is taken to have acquired goods/services as a consumer if, and only if:
(i) the price of the goods/services did not exceed $40,000; or
(ii) where the price exceeded that amount – the goods/services were of a kind ordinarily acquired for personal,
domestic or household use or consumption, or the goods consisted of a vehicle or trailer acquired for use
principally in the transport of goods on public roads;
And the person did not acquire the goods, or hold them self out as acquiring the goods, for the purpose of re-
supply; or for the purpose of using them up or transforming them, in trade or commerce, in the course of a
process of production or manufacture, or of repairing or treating other goods or fixtures on land.
Crawford v Mayne Nickless Ltd A commercial purposes, but the cost of alarm system was less than 40,000
Carpet Call P/L v Chan Purchase of commercial quality carpet for a nightclub, > 40000 held: carpet is ordinarily
acquired for household use. It doesn’t lose that character just because of some commercial quality. Still a supply
to a consumer.
Bunnings Pty Ltd v Laminex Group Ltd Purchase of insulation products for warehouses；ordinarily use of item:
essential character test

Statutory guarantees
ACL Part 3-2 – Consumer Transactions
Division 1 – Consumer Guarantees
Guarantees relating to goods Part 3-2 Division 1
1. Title If a person (the supplier) supplies goods to a consumer, there is a guarantee that the supplier will have a
right to dispose of the property in the goods when that property is to pass to the consumer: s51(1)
This guarantee does not apply to …
– a supply of limited title: s 51(2)
– a supply by way of hire or lease: s 51(3)
Undisturbed possession If:
(a) a person (the supplier) supplies goods to a consumer; and
(b) the supply is not a supply of limited title;
there is a guarantee that the consumer has the right to undisturbed possession of the goods: s 52(1)
Free from encumbrances s53(1)(a)(b)(c)
a person (the supplier) supplies goods to a consumer; and the supply is not a supply of limited title;
there is a guarantee that the goods are free from any security, charge or encumbrance
(i) that was not disclosed to the consumer, in writing, before the consumer agreed to the supply; or
(ii) that was not created by or with the express consent of the consumer; and
(d) the goods will remain free from such a security, charge or encumbrance until the time when the property in
the goods passes to the consumer
2. Correspondence with description
If: (a) a person supplies, in trade or commerce, goods by description to a consumer; + Five key concepts
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods correspond with the description: s 56(1)
3. Fitness for purpose
If: there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which
the supplier represents that they are reasonably fit: s55(1)
A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are
commonly supplied) for which the goods are being acquired by the consumer and that:
(a) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were
conducted or made; or
(b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the
person referred to in paragraph (a)(ii): s55(2)
s55 does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for
the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or
the manufacturer, as the case may be: s 55(3)
4. Acceptable quality
If there is a guarantee that the goods are of acceptable quality: s 54(1)
Goods are of acceptable quality if they are as: [must satisfy all 5 to be acceptable]
(a) fit for all the purposes for which goods of that kind are commonly supplied; and
(b) acceptable in appearance and finish; and
(c) free from defects; and (d) safe; and (e) durable (does it last?);
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden
defects of the goods), would regard as acceptable having regard to the matters in subsection (3): s54(2)
The matters for the purposes of subsection (2) are:
(a) the nature of the goods; and
(b) the price of the goods (if relevant) [look if the price is low i.e: $2 item ]; and
(c) any statements made about the goods on any packaging or label on the goods; and
(d) any representation made about the goods by the supplier or manufacturer of the goods; and
(e) any other relevant circumstances relating to the supply of the goods: s54(3)
the goods are taken to be of acceptable quality: s54(4)
If: (a) goods supplied to a consumer are not of acceptable quality; and
(b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s
attention before the consumer agreed to the supply;
s54(5) written notice displayed with the goods
*Goods do not fail to be of acceptable quality if:
(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take
reasonable steps to prevent them from becoming of unacceptable quality; and
(b) they are damaged by abnormal use: s54(6)
*Goods do not fail to be of acceptable quality if:
(a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods;
 and
(b) the examination ought reasonably to have revealed that the goods were not of acceptable quality: s54(7)
5. Supply by sample or model s57(1) [Textile supplies/prototypes/trade fares/cars (demo unit)]
(a) a person supplies, in trade or commerce, goods to a consumer by reference to a sample or demonstration
model; and
(b) the supply does not occur by way of sale by auction; and
there is a guarantee that:
(c) the goods correspond with the sample or demonstration model in quality, state or condition; and
(d) if the goods are supplied by reference to a sample – the consumer will have a reasonable opportunity to
compare the goods with the sample; and
(e) the goods are free from any defect that: (i) would not be apparent on reasonable examination of the sample
or demonstration model (50-60%); and (ii) would cause the goods not to be of acceptable quality (not, good)
6. Repairs and spare parts
If: person supplies, in trade/commerce/ goods to a consumer, and supply does not happen via auction the
manufacturer takes reasonable action to ensure that facilities for the repair of the goods s 58(1)
7. Express warranties
If: , there is a guarantee that the manufacturer/supplier of the goods will comply with any express warranty given
or made by the manufacturer/supplier in relation to the goods s 59(1)/(2)

Guarantees relating to services

1. Due care and skill If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that
the services will be rendered with due care and skill: s 60
2. Fitness for purpose If: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which
the services are being acquired by the consumer;
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that
purpose s 61(1)
Achievement of desired result 5 key concepts IF:
A person supplies, in trade or commerce, services to a consumer + consumer makes known, expressly or by
implication to: supplier or a person by whom any prior negations or arrangements in relation to the acquisition
of the services were conducted.
there is a guarantee that the services, and any products resulting from the services, will be of such a nature, and
quality, state or condition, that they might reasonably be expected to achieve that result: s 61(2)
Exceptions: Section 61 does not apply …
– if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to
rely on, the skill or judgment of the supplier: s61(3)
– to a supply of services of a professional nature by a qualified architect or engineer: s61(4)
3. Reasonable time for supply
If: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b)the time within which the services are to be supplied:
(i) is not fixed by the contract for the supply of the services; or
(ii) is not to be determined in a manner agreed to by the consumer and supplier;
there is a guarantee that the services will be supplied within a reasonable time: s 62
Exempt services: Transportation issues/storage of goods, and insurance not under ALC
Supply of services
Gharibian v Propix Pty Ltd injured while tobogganing, those material must be reasonably fit for the purpose for
which they are supplied- - public recreational items should not operate on reliance that the public will control
the item if it doesn’t work.
 Guarantees not to be excluded part 3-2
A term of a contract is void to the extent that the term purports to exclude, restrict or modify, or has the effect
of excluding, restricting or modifying:
(a) the application of all or any of the provisions of Part 3-2 Division 1; or
(b) the exercise of a right conferred by such a provision
(c) any liability of a person for a failure to comply with a guarantee that applies under Part 3-2 Division 1 to a
supply of goods or services: s64(1)
s139A CCA Terms cannot limit liability for the supply of recreational services
s64A Supplier can limit liability in certain circumstances
–in the case of goods: the replacement or repair of the goods, or the supply of equivalent goods, or the cost of
such replacement, repair or supply; or
–in the case of services: supplying the services again, or the cost of having the services supplied again: s64A(1)(2)

Remedies relating to guarantee: Part 5-4

Division 1 – Action against Suppliers
Subdivision A – Action against Suppliers of Goods
Subdivision B – Action against Suppliers of Services
Division 2 – Action for Damages against Manufacturers
1. A consumer has a right to act if a supplier of goods/services fails to comply with a guarantee: s259(1) / s267(1)
2. Such a failure can be major or not major. When will it be a major failure? s260 / s268
3. If the failure is not major – the consumer may require the supplier to remedy the failure within a reasonable
time:
s 259(2) / s 267(2)
Ways in which this may occur: s 261
4. If the failure is major – the consumer may reject the goods / terminate the contract for supply of services:
s259(3) / s267(3)
* Circumstances in which consumers are not entitled to reject goods: s 262
*Consequences of rejecting goods: s 263
*Consequences of terminating a contract for supply of services: s 269
5. The consumer may also recover damages from the supplier: s 259(4) / s 267(4)
*The supplier is entitled to be indemnified by the manufacturer: s 274；
6. In limited circumstances, a consumer may recover damages from the manufacturer: s 271
7. What damages may be recovered s272: money, loss to self or property, strict liability for manufacturer to show
not at fault, compensation w/o having to go into negligence

Misrepresentation, passing off

1. Four elements of an actionable misrepresentation
Element 1 A statement of fact
 A statement of fact or law
Public Trustee v Taylor: misrepresentations of law will entitle the Representee to relief
 Which is untrue
False statement must be made silence does not always constitute a misrepresentation
 It cannot be a statement of future intention
Exception: Where the intention was never actually held
Edgington v Fitzmaurice (Prospectus stated that money raised would be used for building purpose, money was
never intended to be used for building) never had intention (exception)
 It cannot be a statement of opinion
Bissett v Wilkinson (in his judgment, the property carries 2000 sheep. - Found to be an honest expression of
opinion)—mere opinion is not misrep
Exceptions
1.Where the opinion was not actually held, or no reasonable person could have held it
2.Where the opinion amounted to an implied statement of fact
Smith v Land and House Property Corp=misrepresentation
3. Where the facts were not equally known to the parties and the opinion was given by one who should have
known the facts or was in a far stronger position to ascertain those facts
Esso Petroleum Co Ltd v Mardon (E induced M to lease a service station by assuring him that the annual
throughput would be 200,000 gallons. But in fact, it never exceeded 70000 gallons)—Held: E held themselves
out as having a special knowledge and skill = a misrepresentation
Element 2 A false statement must be made
Generally: Silence does not generally constitute misrep
Exceptions:
1.Where the parties are in a fiduciary relationship
Lowther v Lord Lowther (Principal asked agent to sell a painting for him. --the agent is under a duty to disclose
all material facts to the principle) silence = misrepresentation
2.Contracts of the utmost good faith
London General Omnibus Co v Holloway (L employed one of H’s relatives. L asked H to guarantee the good
conduct of the relative, under a ‘fidelity bond’. L knew that the relative had a history of dishonesty but they did
not mention it to H)
silence= misrep
3. Where silence would distort an existing representation (half-truth situation what a party doesn’t say made
what they said false)
Krakowski v Eurolynx Properties Ltd (the vendor didn’t reveal a 2nd agreement) =misrepr
4. Where statements that were true or thought to be true at the time they were made subsequently become or
turn out to be untrue. (representors are expected to take steps to correct the situation. If they don’t, misrep)
With v O’Flanagan (Vendor of medical practice represented that it generated a certain annual income. Statement
true 4 months earlier. Vendor ill, unable to operate the practice. Statement had become untrue to his knowledge,
had not corrected it) =misrep
Element 3: was intended to induce the contract.
Representor must have intended the statement to be relied on by the representee
Peek v Gurney (Prospectus, which contained misrepresentations, was only intended for certain recipients. The P
was not within that group who the information was intended)- P had no cause of action, no misrep
Element 4: did in fact induce the contract
The representee must have in fact relied on the statement. Hence a person will not have been induced to enter
into a contract had they:
 if they were not aware of it
Re Northumberland and Durham District Banking
No evidence B was aware= no misrep
 if they did not rely on it
Holmes v Jones (mistake, corrected, couldn’t say relied on the original misrepre)=no misrep
 If they knew it was untrue
Redgrave v Hurd (overstated its earnings, the mere fact that they could have known is irrelevant) =misrep
The representation need not be the sole reason for entering into the contract; if it is one of the reasons, that
is sufficient-- Edgington v Fitzmaurice

2.Categories of misrepresentation
1) fraudulent misrepresentation
A statement made knowing it to be false; or without belief in its truth; or recklessly, careless whether it be true
or false
Derry v Peek (prospectus contained false statements, but directors honestly believed it was true) =no fraudulent
misrep Gould v Vaggelas - they had made the statements knowing that it was false.
Remedies: (misrep , not a term, no breach)
- Rescission of the contract
- Damages in the tort of deceit
2). innocent misrepresentation
A statement made in the honest but mistaken belief that it is correct
Redgrave v Hurd (misrepresented earnings of legal practice, judge found that no false representation because
no representation was made; innocent) Whittington v Seale-Hayne (Lessor misrepresented that premises were
in a sanitary condition; no additional damages for loss because wasn’t fraudulent)
Remedies: Rescission of the contract
3). negligent misrepresentation
A careless statement made in circumstances where the representor owes a duty of care to the representee.
Hedley Byrne and Co v Heller and Partners
H and P owed HB a duty of care. Disclaimer, not liable
Shaddock and Associates Pty Ltd v Parramatta
failed to mention a road-widening proposal affecting the land=negligent misrep
*A need for a ‘special relationship’ that establishes a duty of care is when the person is trusting on another
person to give good information on which they are going to rely on.
When one party knows or ought to know that the advice they are giving is going to be relied upon this establishes
a special relationship in which a duty of care is owed.
Remedies:
Usually damages in the tort of negligence. Recession is a possibility if it does not damage an innocent 3rd party.
Limitations on rescission:
1) Restitution in integrum - need to restore party to original positions- if not, cannot rescind the contract
2) Affirmation
3) Lapse of a reasonable time
4) Third party involvement
5) Executed contracts (innocent misrep only. Rescission may be rejected if contract has been executed)
Seddon v North Eastern Salt Co Ltd

Passing off
1. Three elements:
 the existence of some reputation or goodwill vested in the plaintiff’s business
 a misrepresentation or deception as to a connection between the D’s business and the P’S business
 and consequential damage suffered or likely to be suffered by the plaintiff
2. Remedies
--Damages–Account of profits–Injunction
BM Auto Sales Pty Ltd v Budget Rent A Car System (injunction)
Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd (no passing off)
Twentieth Century Fox Film Corp v South Australian Brewing Co Ltd (passing off)

Misleading or deceptive conduct Part 2-1

ALC does not apply to the supply of financial services/financial products s131A CCA
A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead
or deceive s18(1) ACL
don’t have to be a consumer to use s18
 Elements of s 18
 Person: Corporation or person (s131 CCA corporation = person) (139B(2)(a) worker working on behalf counts)
 Trade or commerce means: s 2(1)
Concrete Constructions (NSW) Pty Ltd v Nelson (does not extend to purely internal communications between
employees, s18 does not apply)
Re Ku-ring-gai Co-operative: the terms “trade” and “commerce” are ordinary terms which describe all the mutual
communing’s, the negotiations verbal and by correspondence, the bargain, the transport and the delivery which
comprise commercial arrangements
 Engage in conduct s 2(2)(a) [what is actually being done]
Henjo Investments Pty Ltd v Collins Marrickville: Misleading or deceptive conduct generally consists of
representations, whether express or by silence. half-truth principle could apply here.
 Misleading or deceptive
**Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd-- The defendant’s furniture was almost identical to the
plaintiff’s. no breach of s 18 because D always labelled furniture - prospected purchases wouldn’t been misled
into thinking that D’s furniture was P’s furniture, because price was high and consumers will do due diligence
Literally true can be misleading and deceptive at the same time.
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd---there was enough
information for people to work out the difference, no misleading or deceptive conduct.
Taco Company of Australia Inc v Taco Bell Pty Ltd—
also passing off; some people would be misled that bondi(aus) is a part of US chain Australian company
succeeded; got an injunction
4 Steps from Taco + campomar Case: [to determine if conduct is misleading or deceptive]
1) Identify the relevant section (or sections) of the public (which may be the public at large) by reference to
whom the question of whether conduct is, or is likely to be, misleading or deceptive falls to be tested.
2) The matter is to be considered by reference to all who come within it, including the astute and the gullible,
the intelligent and the not so intelligent, well-educated and poorly educated, men and women of various ages
pursuing a variety of vocations.
--court to focus on “ordinary or reasonable” members of relevant sections of the public, and decline
assumptions by persons whose reactions are extreme or fanciful Campomar Sociedad Limitada v Nike
International Ltd
--ask whether an ordinary or reasonable individual from that section of the public which is most likely to be
misled, .au Domain Administration Ltd v Domain Names Australia –
----Combine: ask whether an ordinary or reasonable individual from that section of the public is most likely to
be misled, yet whose reactions to the relevant conduct are not extreme or fanciful, would be misled or deceived.
3) evidence that some person has in fact formed an erroneous conclusion is admissible and may be persuasive
but is not essential. Evidence by objective test. Look at: what can lead someone into error or mistake, look at
whole conduct.
4) need to check if the misconception has been induced by the D’s Conduct:
--It is not sufficient if the conduct simply causes confusion or uncertainty McWilliam’s Wines Pty Ltd v
McDonald’s System of Australia Pty Ltd--McW advertised wine as Big Mac. would not be misled into thinking
wine is a product is McDonald’s product because was advertised in wine catalogue
Likely to mislead or deceive
Conduct is likely to mislead if there is a real or not remote chance or possibility regardless of whether it is less or
more than 50%--Global Sportsman Pty Ltd v Mirror Newspapers Ltd
Opinionis genuinely held or had reasonable foundation at the time it was made does not prevent from being
misleading or deceptive Harvyn Pty Ltd v Webster
Intention is generally irrelevant to a breach of s18.
Silence must be intentional. However, if there was an intention to mislead, the court may more easily infer that
the conduct was misleading. au. Domain
Opinion does not qualify unless exceptions
RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd-- The brokers concluded that much of FAI’s insurance
cover was illusory. -- no reasonable grounds for their opinions
Representations as to future matters
If: (a)a person makes a representation with respect to any future matter; and (b) the person does not have
reasonable grounds for making the representation; the representation is taken to be misleading: -- s 4(1) ACL
Wheeler Grace & Pierucci Pty Ltd v Wright there was no reasonable grounds for the statement.
Silence *Demagogue Pty Ltd v Ramensky-- R purchased a home unit from D. Nothing on the plans suggested that
there was anything unusual about the driveway. ---D knew this but didn’t not tell R and decision was
that D’s silence amounted to being misleading and deceptive –
this case is important because it laid down the reasonable expectations test - have to ask – does the circumstance
give rise to the reasonable expectation that disclosure will be made? - Looking at it from the perspective of the
party to whom the disclosure is being made (buyer).
*Miller & Associates Insurance Broking Pl v BMW Australia Finance Ltd-- M did not disclose to B that the policy
was neither assignable nor cancellable. No expectation, no breach

Misleading or deceptive conduct

Everything must depend on an appropriately detailed examination of the specific circumstances of the case--
Butcher v Lachlan Elder Realty Pty Ltd
ACCC v Australian Medical Institute Pl He was saying he used it and it helped him so much but actually he hadn’t
used it TV STARS CONFESSION
ACCC V TPG Internet Pty Ltd: consumers likely to be misled by ad claiming price $29.99 when its $59.99
Cadbury Schweppes Pl v Darrell Lea Chocolate Shops Pl-- held that the ordinary reasonable person would not
think that if it was wrapped in purple they were buying Cadbury chocolate, Cadbury also used other colours.
Butcher v Lachlan Elder Realty Pl--A party does not contravene s18 when they pass on erroneous information in
circumstances where it is apparent that the party is not the source of the information and disclaims any belief in
its truth or falsity and is merely passing on the information for what it is worth.
S 19 exempts publications by ‘information providers’ from the scope of s 18.
Bond v Barry –Held: publishers defence covered freelance journalist (TPA) and said the s 19 held a broad
interpretation – including freelance journalist.
Google Inc v ACCC: ordinary and reasonable user would have understood that the sponsored links were
advertisements made and paid for by the advertisers and that the representations made in them were
not endorsed or adopted by Google. [3rd party publishers saved from advert that make representation]
The s 251 defence applies to publishers of advertisements where it is shown that the publisher received the
advertisement for publication in the ordinary course of business and did not know, and had no reason to suspect,
that its publication would amount to a contravention of the ACL.
S 209 sets out requirements for publication of advertisements in ordinary course of business:
1.business it is to publish or arrange for the publication of advertisements
2.recieved the advertisement for publication in the ordinary course of business
3.did not know, and had no reason to suspect, that its publication would amount to a contravention of such a
provision.

Enforcement and remedies—breach of s18

Undertakings: s218
Substantiation notices: s219: authorised officer may serve an infringement notice on any person that he or she
has reason to believe has committed a prescribed offence against this Act
Public warning notices: s223
Injunctions: s232
Damages: s236
Compensation and other orders: s237
Orders to redress loss or damage suffered by non-party consumers: s 239
Other orders: s243
Non-punitive orders: s246

Unfair practices Part 3-1

S 29 – False or misleading representations about goods or services equivalent to s 151, s 50
S 29 A person must not, in trade or commerce, in connection with the supply or possible supply of goods or
services or in connection with the promotion by any means of the supply or use of goods or services:
(a)make a false or misleading representation that goods are of a particular standard, quality, value, grade,
composition, style or model or have had a particular history or particular previous use
(b) make a false or misleading representation that services are of a particular standard, quality, value or grade
Standard of goods Hartnell v Sharp Corp of Australia Pl --S advertised that its microwave ovens were tested and
approved by the Standards Association of Australia, which was false [rep that standard was high standard]
Quality of goods Given v CV Holland (Holdings) Pl --The odometer of a second-hand vehicle showed 23,700 miles.
In fact, the car had travelled 69,000 miles, was worse than stated
Model ACCC v Nissan Motor Co (Australia) Pl-- Newspaper advertisements car featured a picture of a different
(c) make a false or mislead representation that goods are new
Henderson v Bowden Ford Pl a superseded model, not new
(d) make a false or misleading representation that a particular person has agreed to acquire goods or services (a
right of payment is asserted for goods allegedly order by sb who recently died)
(e) make a false or misleading representation that purports to be a testimonial by any person relating to goods
or services
(f) make a false or misleading representation concerning: (i)a testimonial by any person; or (ii) a representation
that purports to be such a testimonial; relating to goods or services
(g) make a false or misleading representation that goods or services have sponsorship, approval, performance
characteristics, accessories, uses or benefits—
approval Hartnell v Sharp Corp of Australia P/L: Sharp was fined for falsely representing that every Sharp
microwave oven was tested and approved by the Standards Association of Australia.
sponsorship Twentieth Century Fox Film Corp v South Australian Brewery Co Ltd: SAB was using “Duff Beer” and
claimed that it had nothing to do with TCF, but did nothing to disassociate, thus held to be misleading rep
(h) make a false or misleading representation that the person making the representation has a sponsorship,
approval or affiliation
affiliation Talmax Pty Ltd v Telstra Corp Ltd: Falsely used Telstra logo on swimming cap, pretending to rep them
(i) make a false or misleading representation with respect to the price of goods or services
ACCC v Dell Computer Pl: D advert failed to mention compulsory delivery charges in advert, only price mentioned
(j) concerning the availability of facilities for the repair of goods or spare parts for goods (protect farmers, truck
drivers)
(k) make a false or misleading representation concerning the place of origin of goods [certified, or has grading]
ACCC v GIA Pl-- G removed tags saying, ‘Made in China’ from imported shirts, breach
(l) make a false or misleading representation concerning the need for any goods or services Given v Snuffa Pl--S
stated there is legal requirement to have an extinguisher to each exit
(m) make a false or misleading representation concerning the existence, exclusion or effect of any condition,
warranty, guarantee, right or remedy (including a guarantee under Part 3-2 Division 1)
TPC v Fiona’s Clothes Horse: displayed ‘No Refunds’ signs (illegal under statute)
(n) make a false or misleading representation concerning a requirement to pay for a contractual right that:
(i) is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy (including a
guarantee under Part 3-2 Division 1 [s56, s57, s55, s61, s60]); and
 (ii) a person has under a law of the Commonwealth, a State or a Territory (other than an unwritten law)

Enforcement and remedies of breach s 50

s 18 remedy+ Pecuniary penalties: s224 (monetary compensation to be paid to commonwealth)
Adverse publicity orders: s247 (place an advertisement on how misrep has been made)
Disqualification orders: s248 (disqualify a person from managing corporations)
Infringement notices: s134A CCA
Also note that a breach of s151 is a criminal offence

Issues with contractual consent

Duress; Undue influence; Unconscionability; Mistake
Duress
Illegitimate pressure exerted by one party to coerce another to contract on particular terms
Where duress is established, the contract will be voidable by the person coerced
Elements
Pressure amounting to compulsion of will, illegitimacy of pressure exerted.
Illegitimate pressure
Unlawful threats: did threat influence ability to enter into contract?
Lawful threats: threat can be lawful but can render it illegitimate (but not always)
Crescendo Management Pty Ltd v Westpac Banking: Outline elements: did pressure induced victim into entering
the contract, did person enter into contract because of pressure, will be pressure if amount to unlawful threat
or unconscionable conduct.
Impaired consent: Duress will negate any consent, as there is no free consent. Compulsion of will change of mind
Look if there is causation (BUT FOR) look also: if plaintiff protest, seek independent advice, move quickly to set
aside, had alternatives

Common Law
1)duress to the person--Actual or threatened violence to, or actual or threatened deprivation of liberty of, a
person or their close associates duress
Barton v Armstrong --Held that contracts were voidable by B for duress (Main authority on duress to person) If
A was coercing B to enter a contract with C; would the doctrine apply? – Yes, if A was acting on C’s behalf or A
was C’s agent.
Scolio Pty Ltd v Cote held: contract was not made under duress because the amount was owing and C was given
time to repay, deprivation of liberty
2)Duress to goods Unlawfully seizing, detaining, damaging or destroying another’s goods, or threatening to do
so
Hawker Pacific Pl v Helicopter Charter Pl. Held: duress, voidable, had no other alternative but to submit to the
pressure, HP refused to release the heli unless signed by HC, HC had important contract pending.
3)Economic duress Threats against a party’s economic interests- usual situation is that 2 parties in an existing
contractual relationship and one party applies duress to get the other party to pay more.
North Ocean Shipping Co Ltd v Hyundai Construction [leading case]
Held: economic duress, voidable in theory, but not in practice because the lapse of time (demanding more money
because USD devalued by 10%.)
Universe Tankships Inc of Monrovia v International Transport Workers Federation (The union blacklisted a
particular ship. The financial consequences were catastrophic for shipowner) Held voidable by ship owner for
duress.
Crescendo Management Pty Ltd v Westpac Banking (W refused to release the proceeds of sale unless C
guaranteed their debts) Held: Illegitimate pressure must be present otherwise no claim possible.
proper approach to economic duress is 1) whether the applied pressure induced the person to enter the contract
2) whether that pressure went beyond what the law is prepared to countenance as legitimate
Westpac Banking Corp v Cockerill pressure exerted resulted in the victim’s will being overborne so much so that
he or she is said to be incapable of acting as a free and independent party (threat to bankrupt C)
ANZ Banking Group Ltd v Karam Any pressure applied by the bank was illegitimate. The financial situation of the
company was not the bank’s doing. Held: bank didn’t have to make any further loans to them. Didn’t have to do
it without securing its position. There was duress.
Atlas Express Ltd v Kafco A made it clear that there would be no further deliveries until K agreed to a higher rate)
Held: illegitimate pressure
Statute
ACL duress remedy = s29 unfair practise s18 remedy+… part 3-1 div 5
S 50(1) A person must not use physical force, undue harassment or coercion
(a) Supply or possible supply of goods or services
(b) Payment for goods or services
(c) Sale or grant or possible sale or grant of an interest in land
(d) Payment for an interest in land
ACCC v McCaskey (debt recovery agent made phone calls to the complainant. Phone calls were abrupt,
authoritative, forceful and demanding) undue harassment, breach of s 50(1)
ACCC v Maritime Union of Australia coercion
Harassment：persistent disturbance or torment
Undue: goes beyond the normal limits
“Coercion”: force or compulsion or threats of force or compulsion negating choice or freedom to act. A person
may be coerced by another to do something or refrain from doing something (mooring gang felt threatened and
refused to cross picket line), that is to say the former is constrained or restrained from doing something or made
to do something by force or threat of force or other compulsion.
ACCC v Davis breach of s 50, physical force, pinned person to ground while vehicle was removed. company
engaged in undue harassment and coercion

Undue influence equitable doctrine

Remedy: voidable, rescission (limitations)
A ‘dominant’ party uses the influence they have over another party (the ‘servient’ party) to obtain a benefit that
would not otherwise be available
Where undue influence is established, the contract will be voidable by the party influenced
Types of undue influence
1.Presumed undue influence
a. Special relationships parent and child; guardian and ward; solicitor and client; trustee and beneficiary; doctor
and patient religious adviser and devotee (assumed to be trust and confidence parties)
Allcard v Skinner Held: the relationship btw A and S was a special relationship which gave rise to presumption of
undue influence. A’s delay disentitled her to any remedy. S was spiritual advisor to A (Vow of poverty)
McCulloch v Fern Presumption (wife donated on joint account) arises and the onus is on F to rebut, but failed,
undue
Westmelton Pl v Archer and Schulman solicitor-client, special relationship. Presumption arises, onus on solicitor
to rebut, succeed. They had done so fairly and honestly and had not abused their influence with their well
informed and sophisticated client.
b. Other relationships involving a high degree of trust and confidence (need to establish)
the onus of proof is on the dominant party to show that they did not abuse their influence over the other party
to obtain the benefit
Johnson v Buttress Held: yes, that there was a relationship of trust and confidence btw B and J- onus on J to rebut
but failed. Property was recoverable by J. (B illiterate, of less than average intelligence and had no business
ability) [important that he heavily relied upon J]
Tufton v Sperni (T bought a house from S, paying approximately twice its true value) There is a relationship of
trust and confidence they were from same religious group, presumption arose, S couldn’t rebut. The sale was
set aside.
Lloyd’s Bank v Bundy: there was a relationship btw B and the bank manager of L of trust and confidence.
Guarantee set aside.
Rebutting presumption
Dominant party must prove that sub party had independent legal advice outside of dominant party influence.
Westmelton (Vic) Pty Ltd v Archer and Schulman: a solicitor who did not advise the clients to seek legal advice
before declaring the contract.
2.Actual undue influence In the absence of a relationship of trust and confidence, the aggrieved party must prove
actual undue influence (via proof of actual coercion or domination)
Johnson v Buttress: factors: illiterate, of less than average intelligence and had no business ability
Public Service Employees Credit Union Co-op Ltd v Campion coerced by the threats to report son to authority if
payment wasn’t made. (lawful legitimate threat)
Farmers’ Co-operative Executors & Trustees Ltd v Perks (Mrs P transferred her share in the farm to Mr P. But Mr
P had a history of abusing Mrs P mentally and physically) Transfer set aside, undue influence control and
domination of his wife

Unconscionability and unfair terms

Unconscionability (Equitable doctrine)
CL: Elements [Amadio] + [Blomley] = special disadvantage
(i) the weaker party is under a special disability versus the stronger party;
(ii) the stronger party is aware of or should reasonably aware that special disability and
(iii) the stronger party unfairly takes advantage of that special disability in order to procure the weaker
party’s consent to the agreement, and onus is on stronger party to show that transaction was fair.
A contract obtained by unconscionable conduct is voidable by the weaker party.
Commercial Bank of Australia Ltd v Amadio (With a limited command of English and little formal education or
business experience, they signed a guarantee to secure a loan to their son’s company). Held the bank had acted
unconscionably, the bank had given Amadio insufficient explanation and a lack of independent advice.
#The doctrine extends generally to circumstances in which ‘a party to a transaction was under a special disability
in dealing with the other party with the consequence that there was an absence of any reasonable degree of
equality between them’ and ‘that disability was sufficiently evident to the stronger party to make it prima facie
unfair or “unconscientious” that he procure, or accept, the weaker party’s assent to the impugned transaction
in the circumstances in which he procured or accepted it.’
Elements: P placed in special disadvantage, and D aware of special disadvantage and took advantage of it
Blomley v Ryan (R was an elderly alcoholic. sold land to B at a substantial undervaluation. B knew that R was very
intoxicated but exploited his disability.) transaction was set aside [unequal bargaining power] one party to a
transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience,
impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the
other party unconscientiously takes advantage of the opportunity thus placed in his hands.
#Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness,
illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary.
The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage
vis-à-vis the other.’ [disadvantage one party have over another, could be something else to consider]
Kakavas v Crown Melbourne: High-roller who had gambling problem, lost $20mil, relationship with Crown
satisfied Amadio criteria however must show action done is more than the ordinary cause of business, crown did
not take advantage of K; K was able to refrain from gambling if he chooses to do so
Louth v Diprose (D gave L money to buy a house. She has manipulated his infatuation) infatuation can be looked
as a special disability.
Bridgewater v Leahy (uncle attached to and dependent upon nephew. At the nephew’s suggestion, the uncle
transferred his farming property to the nephew at a substantial undervaluation). Uncle’s disability was his
blinding love/extreme emotional attachment to the nephew. Nephew has exploited that emotional dependence.
Statutory ACL Chapter2 Part 2-2 [unconscionability]
s20 A person (corporation) must not, in trade or commerce, engage in conduct that is unconscionable, within
the meaning of the unwritten law (case law) from time to time—s 20(1) [only applies to non-goods/services]
Apply Amardio [elements] test to determine if conduct is unconscionable. Kakavas applicable too.
Remedies:
Undertakings: s 218 Substantiation notices: s 219
Public warning notices: s 223 Pecuniary penalties: s 224
Injunctions: s 232 Damages: s 236 (Also see s 137B CCA)
Compensation and other orders: s 237
Orders to redress loss or damage suffered by non-party consumers: s 239 Other orders: s 243
Non-punitive orders: s246 Adverse publicity orders: s247
Disqualification orders: s248 Infringement notices: s134A CCA
Section 20 applied [anything that does not relates to goods and services]
ACCC v CG Berbatis Holdings no unconscionable conduct, example of hard bargaining, no special disability for
inequality in bargaining power or unconscientious exploitation of another’s inability, or diminished ability,
commercially experienced and could make their own decisions, had legal advice, further interest
ACCC v Karam: No special disadvantage, ignorance of financial affairs, pressure difficulties don’t amount to SD
ACCC v 4WD Systems: Moral fault or responsibility, mere unreasonable or unfairness may not be sufficient
ACCC v Samton Holdings Pty Ltd (The lessee failed to exercise the option in time. S offered to renew the lease for
an additional $70,000) no breach- said this situation had arisen due to the lease’s own fault
#the fact that somebody is in a position of special weakness because they have lost through their own fault rights
necessary to the operation of their business does not provide a basis upon which a claim for unconscionable
conduct can be built. [special disadvantage must be significant] i.e: age, illness, poverty, education, experience
S 21(1) A person must not, in trade or commerce, in connection with [elements for statutory UC]
(a) the supply or possible supply of goods or services to another person (other than a listed public
company), supplier-customer (consumer/small business
(b) the acquisition or possible acquisition of goods or services from a person (other than a listed public
company)
engage in conduct that is, in all the circumstances, unconscionable.
Pursuant to s 21(1) &(2),) s 22 applies to 20 and 21 [go through and pick relevant]
(a) the relative strengths of the bargaining positions of the supplier and the consumer; and
(b) whether the consumer was required to comply with conditions not reasonably necessary for the protection
of the legitimate interests of the supplier
(c) whether the consumer was able to understand any documents relating to the supply of goods or services;
and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against the
consumer or a person acting on behalf of the supplier in relation to the supply or possible supply of goods & S
(e) the amount for which, and the circumstances under which, the customer could have acquired identical or
equivalent goods or services from a person other than the supplier; and
(f) the extent to which the supplier’s conduct towards the customer was consistent with the supplier’s conduct
in similar transactions between the supplier and other like customers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier
would comply with that code; and
(i) the extent to which the supplier unreasonably failed to disclose to the customer:
(i) any intended conduct of the supplier that might affect the interests of the customer; and
 (ii) any risks to the customer arising from the supplier’s intended conduct (being risks that the supplier should
have foreseen would not be apparent to the customer); and
(j) if there is a contract between the supplier and the customer for the supply of the goods or services:
(i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract
with the customer; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the supplier and the customer in complying with the terms and conditions of the contract;
and
(iv) any conduct that the supplier or the customer engaged in, in connection with their commercial relationship,
after they entered into the contract; and
(k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or
condition of a contract between the supplier and the customer for the supply of the goods or services; and
(l) the extent to which the supplier and the customer acted in good faith.
s 21(4):
(a) s21 is not limited by the unwritten law relating to unconscionable conduct; and
(b) s21 can apply to a system of conduct or pattern of behaviour, whether or not a particular individual is
identified as having been disadvantaged by the conduct or behaviour; and
(c) in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the
contract may include consideration of:
(i) the terms of the contract; and
(ii) the manner in which and the extent to which the contract is carried out; and is not limited to consideration
of the circumstances relating to the formation of the contract.
But note s 21(2)-(3):
-s 21 does not apply to conduct engaged in only because the person engaging in the conduct institutes legal
proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition …
-For the purpose of determining whether a person has contravened s 21(1) the court must not have regard to
any circumstances that were not reasonably foreseeable at the time of the alleged contravention …
ACCC v Lux Pty Ltd (door-to-door sales representative pressured a woman who was illiterate and had a limited
understanding of commercial matters, and who was alone in her house, into buying a vacuum cleaner). Sales
rep’s conduct= corporation’s conduct. Due to the unequal bargaining positions (1)(a), the woman had limited
ability to understand the terms (c), as well as the salesman’s pressure (d)
ACCC v Radio Rentals Ltd (RR entered several rental agreements with a man who had an intellectual disability.
the total renting costs were about 40% of the man’s pension) Held no breach because the man’s circumstance
was sad but the contract was the same that everybody else had to sign as well, no unfair practice, no evidence
that he had problems but did it.
#The word unconscionable [in s 21] … is not limited to traditional equitable … notions of unconscionability …
ACCC v Keshow breach of s21, lack of education, lack of commercial experience, with indigenous
ACCC v Simply No-Knead (Franchising) S acted conduct was unreasonable, unfair, bullying and thuggish. Breach
s 22
ACCC v Oceana Commercial Pty Ltd (Bank knew that the purchase price was above the property’s market value,
but did not tell them) Held no breach of s 22 because G were educated intelligent people, well able to know that
the price being sought for property might not be the same as its market value. They could easily protect their
interests if they had the relevant information. They could easily obtain that by just obtaining their own evaluation.
The fact that they didn’t do that didn’t amount to a special disability. Just their own fault. No breach.
Unfair terms Part 2-3 ACL
S 23 unfair terms of consumer contracts
(1) A term of a consumer contract is void if:
(a) the term is unfair; and
(b) the contract is a standard form contract.
(2) The contract continues to bind the parties if it is capable of operating without the unfair term.
(3) A consumer contract is a contract for:
(a) a supply of goods or services; or
(b) a sale or grant of an interest in land; to an individual whose acquisition of the goods, services or interest is
wholly or predominantly for personal, domestic or household use or consumption.
(c) whether another party was, in effect, required either to accept or reject the terms of the contract (other than
the terms referred to in section 26(1)) in the form in which they were presented;
(d) whether another party was given an effective opportunity to negotiate the terms of the contract that were
not the terms referred to in section 26(1);
(e) whether the terms of the contract (other than the terms referred to in section 26(1)) take into account the
specific characteristics of another party or the particular transaction;
(f) any other matter prescribed by the regulations.
S 27 Standard form contracts
(1) If a party to a proceeding alleges that a contract is a standard form contract, it is presumed to be a standard
form contract unless another party to the proceeding proves otherwise.
(2) In determining whether a contract is a standard form contract, a court may take into account such matters：
(a) whether one of the parties has all or most of the bargaining power relating to the transaction
(b) whether the contract was prepared by one party before any discussion relating to the transaction occurred
between the parties.
S 24 meaning of unfair
(1) A term of a consumer contract is unfair if:
(a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
(b) it is not reasonably necessary in order to protect the legitimate interests of the supplier
(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
(2) In determining whether a term of a consumer contract is unfair under subsection (1), a court must consider
(a) the extent to which the term is transparent;
(b) the contract as a whole.
(3) A term is transparent if the term is:
(a) expressed in reasonably plain language; and
(b) legible; and
(c) presented clearly; and
(d)readily available to any party affected by the term.
(4) For the purposes of subsection (1)(b), a term of a consumer contract is presumed not to be reasonably
necessary to protect the legitimate interests of the party who would be advantaged by the term, unless that
party proves otherwise.
S 25 examples of unfair terms
(1) Without limiting s 24, the following are examples of the kinds of terms of a consumer contract that may be
unfair: [see (a)-(n)].
Three examples of unfair terms under s 25(1):
(a) a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit
performance of the contract
(d) a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of
the contract
(k) a term that limits, or has the effect of limiting, one party’s right to sue another party
S 26 Terms that define main subject matter of consumer contracts etc are unaffected
(1) Section 23 does not apply to a term of a consumer contract to the extent, but only to the extent, that the
term:
(a) defines the main subject matter of the contract; or
(b) sets the upfront price payable under the contract; or
 (c) is a term required, or expressly permitted, by a law of the Commonwealth, a State or a Territory.

Mistake
Traditionally had to be a mistake of fact
mistake of law allowed, recoverable
David Securities Pty Ltd v Commonwealth Bank of Australia
mistaken motive: cannot recover
Bell v Lever Bros Ltd (L entered the compensation agreement with B bcz they thought it was the only way to
terminate B’s employment) Rejected, bcz L got the bargain—release of contract, does not matter that they could
achieve result in a different way.
Remedy in CL: If the mistake is of a fundamental nature, the contract will be void ab initio
In equity: If the mistake relates to an ancillary matter, the contract may be voidable, or rectification may be
ordered, or specific performance may be refused.
Rectification: Where the parties agree to one thing but mistakenly write another in a written contract, the court
may rectify the written contract to conform to the parties’ intention
Commerce Consolidated Pl v Johnstone should be rectified by
Types of mistake
(1) Common mistake Parties make the same mistake
A. Mistake as to some fundamental fact
a) Res Extincta (the thing has perished)
--usual situation: there is a mistake as to the existence of physical subject matter of the contract Scott v Coulson
(The person whose life was insured was already dead). Void
--also applies where fact underlying a contract didn’t exist Galloway v Galloway (believing that they were lawfully
married, entered into a deed of separation. Mr G’s first wife was still alive). Deed void because the base for the
deed has never existed
--Exception: Where the mistake arose because of the carelessness of one party
McRae v Commonwealth Disposals Commission (offered a tanker for sale, no tanker in fact) contract not void ;
so-called mistake just a reckless , carelessness of one party
b) Res sua (the thing was already his/hers)
Cooper v Phibbs (C contracted to lease fishery but he was the owner when entered the lease) Res Sua applies
and lease void.
B. Mistake as to quality/attribute of subject matter
*Leaf v International Galleries (L purchased the painting from I. Both parties believed that the artist was John
Constable but not) Held just a mistake about the quality or attribute of the contract, not a mistake of subject
matter itself. Innocent misrepresentation, only remedy was rescission and no damages but no remedy bcz of
lapse of time
(2) Mutual mistake
The parties misunderstand each other
–They are at cross-purposes
Hence, there is no real agreement– No meeting of minds
Raffles v Wichelhaus (two ships of that name, both sailing from Bombay) void for mutual mistake
(3) Unilateral mistake
-- One party only is mistaken, but the other knows or ought reasonably to be aware of the mistake
A. Mistake as to terms
Hartog v Colin and Shields (All prices mentioned were per piece but offer made to sell at a certain price per
pound) contract void. Buyer must have known seller meant the price to be per piece.
Taylor v Johnson (T knew that J had intended the price to be $15,000 per acre) contract voidable for unilateral
mistake
“a party who has entered into a written contract under a serious mistake about its contents in relation to a
fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that
circumstances exist”
B. Mistake as to identity
Boulton v Jones (Brocklehurst had sold the business to Boulton. J has only intended to deal with Brocklehurst
and Boulton knew that) no fraud. Void. Clear that J only intended to deal with Bro and Bou knew that.
Cundy v Lindsay (Rogue, mistaken party and third party) Held: L only intended to deal with the real company. L
recovered the goods from C.
King’s Norton Metal Co v Edridge, Merrett & Co Ltd the first transaction btw the rogue and K was not void for
unilateral mistake as to identity because K intended to deal with the writer of the letter whoever they were- K
could not recover the Wire from E.
Phillips v Brooks Ltd not void for unilateral mistake because P intended to sell the item to the person in front of
them whether or not they were Sir George or not, couldn’t recover the ring
Ingram v Little Ingram only intended to sell to PGM Hutchinson, contract void, recoverable
Lewis v Averay not void because L had not regard the identity of the party as a material matter, could not recover
the car
If face to face, presumption in law is that there is a contract, even though there is a fraudulent impersonation by
the buyer representing himself as a different man than he is.
Papas v Bianca Investments Pl not void, identity immaterial
Shogun Finance Ltd v Hudson the agreement was really with the person whose driver’s license was stolen and H
had to return the car. void
Non est factum (defence) [not my deed]
Mistake as to type of document being signed
Foster v Mackinnon (Poor eyesight and F told him it’s a guarantee) void
Petelin v Cullen (cannot read English, C led him believe) void
A party relying on non-Est factum must establish that:
(i) the document they signed is radically different to what they believed it to be;
(ii) the failure to read and understand the document was not due to carelessness on their part; and
(iii) they are within the class of persons entitled to rely on the defence.
‘The class of persons who can avail themselves of the defence is limited. It is available to those who are unable
to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is
also available to those who through no fault of their own are unable to have any understanding of the purport
of a particular document.’
-- Petelin v Cullen
Saunders v Anglia Building Society (an elderly woman unable to read because her glasses were broken; the
leasehold of her property to her nephew. In fact, to the nephew’s friend.) No radical difference what she signed
and the nature of what she believed to be. Couldn’t read. Within the class of people. No careless on her part.
Entitled to trust those who disclose to her. claim failed.

Implied contractual terms (common law)

1.Terms implied by fact/Business efficacy: (BP Refinery (Westernport) Pty Ltd v Shire of Hastings) + (Codelfa
Constructions Pty Ltd v State Rail Authority)
be reasonable and equitable;
be necessary to give business efficacy to the contract (so that no term will be implied if the contract is effective
without it);
be so obvious that it goes without saying; ‘
be capable of clear expression; and not contradict an express term.
2. Custom or trade usage
terms implied to give effect to customers or usages of a
particular trade/industry
Con-Stan rules (Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance)
Question of fact, custom/trade usage well known, cannot be contrary to express term, bound even if don’t know
3. Previous course of dealing
clearly identifiable, numerous and consistent (frequency of dealing), reasonably that the same terms should be
included, no conflict

4. Terms implied by law ACL (goods and services, guarantees, terms that are implied by law)
A. concepts:
Person: corporation
supply/acquire: s2(1)
trade or commerce: goods/services s2(1)
consumer: s3
not exceed $40,000
exceed, for personal, domestic use.
(Commercial quality immaterial)
B. Guarantees relating to goods
a. title/ undisturbed possession/free from encumbrances: s51
b. correspondence with description: s56 (not by auction)
c. fitness for purpose: s55
#not apply if did not rely on/unreasonable to rely
d. acceptable quality: s54
#attention specifically drawn
#examine, ought to have revealed
e. supply by sample or model
f. repairs and spare parts
g. express warranties
C. Guarantees relating to services
a. due care and skill: s60
b. fitness for purpose/ achievement of desired result
#exception: not rely on the skill and judgement s61(3)
supply service by architect/engineer s61(4)
c. reasonable time for supply: s61
#not apply to transportation/storage of goods
insurance s63
D. Guarantees not to be excluded: s64(1)
S139A CCA: cannot limit liability for supply of
recreational service
s64A: can limit in certain circumstance
E. Remedies
Right to take action if fails to comply: s259(1)/s267(1)
If major: s260/s268
Reject goods s259(3)/ terminate contract s267(3)
If not major: s259(2)/s267(2)