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Legilsation Notes

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LEGISLATION


Offer

Section

A

person

must

not

in

trade

or

commerce,

engage

in

18
conduct

that

is

misleading

or

deceptive,

or

is

likely

to


mislead

or

deceive


Section

A

person

commits

an

offense

if:

a)

the

person,

in

trade

or

35
commerce,

advertises

goods

or

services

for

supply

at

a


Competition


specified

price;

and

b),

there

are

reasonable

grounds

for


and

Consumer


believing

that

the

person

will

not

be

able

to

offer

for


Act

(2010)

Cth


supply

those

goods

or

services

at

that

price

for

a

period


that

is,

and

in

quantities

that

are,

reasonable,

having


regard

to:

i)

the

nature

of

the

market

in

which

the

person


carries

on

business

and

ii)

the

nature

of

the

advertisement.

Acceptance

Section

Assertion

of

right

to

payment

for

unsolicited

goods

or

40
services


1)

A

person

must

not,

in

trade

or

commerce,

assert

a

right


to

payment

from

another

person

for

unsolicited

goods


unless

the

person

has

reasonable

cause

to

believe

that


there

is

a

right

to

the

payment.


Australian


Section

Liability

etc.

of

recipient

for

unsolicited

goods,


Consumer

Law

41
1)

If

a

person,

in

trade

or

commerce,

supplies

unsolicited


goods

to

another

person,

the

other

person

:


(a)

is

not

liable

to

make

any

payment

for

the

goods;

and


(b)

is

not

liable

for

loss

of

or

damage

to

the

goods,

other


than

loss

or

damage

resulting

from

the

other

person

doing


a

wilful

and

unlawful

act

in

relation

to

the

goods

during


the

recovery

period.


Electronic


Section

1.

If

the

addressee

of

an

electronic

communication

has


Transactions

24
designated

an

information

system

to

receive

electronic


Act

(Qld)


communications,

then,

unless

otherwise

agreed

...,

the


time

of

receipt

of

the

communication

is

the

time

when

it


enters

the

information

system.

Statute

of


Frauds

(1677)


Property

Law


Act

1974

UK

2. If

the

addressee

of

an

electronic

communication

has

not


designated

an

information

system

...

then

the

time

of


receipt

of

the

communication

is

the

time

when

it

comes

to


the

attention

of

the

addressee.


Contracts

must

be

in

writing

or

evidenced

in

writing

Section

Guarantees

must

be

in

writing

56
No

action

may

be

brought

upon

any

promise

to

guarantee


any

liability

of

another

unless

the

promise

upon

which


such

action

is

brought,

or

some

memorandum

or

note

of


the

promise,

is

in

writing

and

signed

by

the

party

to

be


charged,

or

by

some

other

person

by

the

party

lawfully

PAGE

23

authorised.


Section

No

action

may

be

brought

upon

any

contract

for

the

sale

or

59
other

disposition

of

land

or

any

interest

in

land

unless

the


contract

upon

which

such

action

is

brought,

or

some


memorandum

or

note

of

the

contract,

is

in

writing

and


signed

by

the

party

to

be

charged

or

by

some

person

by


the

party

lawfully

authorised


Capacity

and

Law

Reform

Act

Section

The

age

of

majority

is

18

years


Privity

1955 (Qld)

17


Sale

of

Goods

Section

Capacity

to

buy

and

sell

is

regulated

by

the

general

law


Act

1896

(Qld)

5
concerning

capacity

to

contract,

and

to

transfer

and


acquire

property.

2. However,

when

necessaries

are

sold

and

delivered

to

an


infant,

or

to

a

person

who

by

reason

of

mental

incapacity


or

drunkenness

is

incompetent

to

contract,

the

person


must

pay

a

reasonable

price

therefore.

3. In

this

section

-

necessaries

means

good

suitable

to


the

condition

in

life

of

such

infant

or

other

person,

and


to

his

or

her

actual

requirements

at

the

time

of

the


sale

and

delivery


Insurance


Contracts

Act

1984 (Cth)

Section

Entitlement

of

named

persons

to

claim

48

1. Where

a

person

who

is

not

a

party

to

a

contract

of


general

insurance

is

specified

or

referred

to

in

the


contract,

whether

by

name

or

otherwise,

as

a

person

to


whom

the

insurance

cover

provided

by

the

contract


extends,

that

person

has

a

right

to

recover

the

amount

of


the

persons

loss

from

the

insurer

in

accordance

with

the


contract

notwithstanding

that

the

person

is

not

a

party

to


the

contract


Section

1.

A

promisor

who,

for

a

valuable

consideration

moving

55
from

the

promise,

promises

to

do

or

to

refrain

from

doing


an

act

or

acts

for

the

benefit

of

a

beneficiary

shall,

upon


acceptance

by

the

beneficiary,

be

subject

to

a

duty


enforceable

by

the

beneficiary

to

perform

that

promise


Section

3)

Upon

acceptance---


55,

ss

3


(a)

the

beneficiary

shall

be

entitled

in

the

beneficiary's


Property

Law


own

name

to

such

remedies

and

relief

as

may

be

just

and


Act

1974

(Qld)


convenient

for

the

enforcement

of

the

duty

of

the


promisor,

and

relief

by

way

of

specific

performance,


injunction

or

otherwise

shall

not

be

refused

solely

on

the


ground

that,

as

against

the

promisor,

the

beneficiary

may


be

a

volunteer;

and


(b)

the

beneficiary

shall

be

bound

by

the

promise

and


subject

to

a

duty

enforceable

against

the

beneficiary

in

the


beneficiary's

own

name

to

do

or

refrain

from

doing

such

PAGE

24

act

or

acts

(if

any)

as

may

by

the

terms

of

the

promise

be


required

of

the

beneficiary


Section

In

this

section---acceptance

means

an

assent

by

words

or


55,

ss

6

conduct

communicated

by

or

on

behalf

of

the

beneficiary


to

the

promisor,

or

to

some

person

authorised

on

the


promisor's

behalf,

in

the

manner

(if

any),

and

within

the


time,

specified

in

the

promise

or,

if

no

time

is

specified,


within

a

reasonable

time

of

the

promise

coming

to

the


notice

of

the

beneficiary.


beneficiary

means

a

person

other

than

the

promisor

or


promisee,

and

includes

a

person

who,

at

the

time

of


acceptance

is

identified

and

in

existence,

although

that


person

may

not

have

been

identified

or

in

existence

at

the


time

when

the

promise

was

given.


promise

means

a

promise---


(a)

which

is

or

appears

to

be

intended

to

be

legally


binding;

and


(b)

which

creates

or

appears

to

be

intended

to

create

a


duty

enforceable

by

a

beneficiary;

and

includes

a

promise


whether

made

by

deed,

or

in

writing,

or,

subject

to

this

Act,


orally,

or

partly

in

writing

and

partly

orally.


Implied


Terms

Section

Implied

undertaking

as

to

title

15
In

a

contract

of

sale,

unless

the

circumstances

of

the


contract

are

such

as

to

show

a

different

intention,

there


is---

Sale

of

Goods


Act

(a) an

implied

condition

on

the

part

of

the

seller

that

in


the

case

of

a

sale

the

seller

has

a

right

to

sell

the


goods,

and

that

in

the

case

of

an

agreement

to

sell


the

seller

will

have

a

right

to

sell

the

goods

at

the


time

when

the

property

is

to

pass


Section

Implied

conditions

as

to

quality

or

fitness

17
Subject

to

the

provisions

of

this

Act

and

of

any

statute

in


that

behalf,

there

is

no

implied

warranty

or

condition

as

to


the

quality

or

fitness

for

any

particular

purpose

of

goods


supplied

under

a

contract

of

sale,

except

as

follows---


when

the

buyer,

expressly

or

by

implication,

makes

known


to

the

seller

the

particular

purpose

for

which

the

goods

are


required,

so

as

to

show

that

the

buyer

relies

on

the

seller's


skill

or

judgment,

and

the

goods

are

of

a

description

which


it

is

in

the

course

of

the

seller's

business

to

supply


(whether

the

seller

is

the

manufacturer

or

not),

there

is

an

PAGE

25

implied

condition

that

the

goods

shall

be

reasonably


fit

for

such

purpose


Section

Sale

by

sample

18
(2)

In

the

case

of

a

contract

for

sale

by

sample---


(a)

there

is

an

implied

condition

that

the

bulk

shall


correspond

with

the

sample

in

quality;


(b)

there

is

an

implied

condition

that

the

buyer

shall

have


a

reasonable

opportunity

of

comparing

the

bulk

with

the


sample;


(c)

there

is

an

implied

condition

that

the

goods

shall

be


free

from

any

defect,

rendering

them

unmerchantable,


which

would

not

be

apparent

on

reasonable

examination


of

the

sample.


Australian


Section

Guarantee

as

to

acceptable

quality


Consumer

Law

54
(1)

If:

(a)

a

person

supplies,

in

trade

or

commerce,

goods


to

a

consumer;

and


(b)

the

supply

does

not

occur

by

way

of

sale

by

auction;


there

is

a

guarantee

that

the

goods

are

of

acceptable


quality.


(2)

Goods

are

of

acceptable

quality

if

they

are

as:


(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;


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).


Section

Guarantee

relating

to

the

supply

of

goods

by

56
description


(1)

If:


(a)

a

person

supplies,

in

trade

or

commerce,

goods

by


description

to

a

consumer;

and


(b)

the

supply

does

not

occur

by

way

of

sale

by

auction;


there

is

a

guarantee

that

the

goods

correspond

with

the


description


Section

Guarantees

not

to

be

excluded

etc.

by

contract

64
(1)

A

term

of

a

contract

(including

a

term

that

is

not

set


out

in

the

contract

but

is

incorporated

in

the

contract

by


another

term

of

the

contract)

is

void

to

the

extent

that

the


term

purports

to

exclude,

restrict

or

modify,

or

has

the

PAGE

26

effect

of

excluding,

restricting

or

modifying:

(a)

the

application

of

all

or

any

of

the


provisions

of

this

Division;

or

(b)

the

exercise

of

a

right

conferred

by

such

a


provision;

or

(c)

any

liability

of

a

person

for

a

failure

to


comply

with

a

guarantee

that

applies

under

this

Division


to

a

supply

of

goods

or

services.

(2)

A

term

of

a

contract

is

not

taken,

for

the


purposes

of

this

section,

to

exclude,

restrict

or

modify

the


application

of

a

provision

of

this

Division

unless

the

term


does

so

expressly

or

is

inconsistent

with

the

provision.


Interpret

of


Terms

and


Construction

Section

Application

of

provisions

not

to

be

excluded

or

68
modified


(1)

Any

term

of

a

contract

...

that

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

this


Division;


(b)

the

exercise

of

a

right

conferred

by

such

a

provision;


...

is

void.


Section

Implied

undertakings

as

to

title,

encumbrances

and

69
quiet

possession


(1)

In

every

contract

for

the

supply

of

goods

by

a


corporation

to

a

consumer,

other

than

a

contract

to

which


subsection

(3)

applies,

there

is:


Trade

Practices


(a)

an

implied

condition

that,

in

the

case

of

a

supply

by


Act

1974

(Cth)


way

of

sale,

the

supplier

has

a

right

to

sell

the

goods,

and,


in

the

case

of

an

agreement

to

sell

or

a

hire

purchase


agreement,

the

supplier

will

have

a

right

to

sell

the

goods


at

the

time

when

the

property

is

to

pass;


(b)

an

implied

warranty

that

the

consumer

will

enjoy

quiet


possession

of

the

goods

except

so

far

as

it

may

lawfully

be


disturbed

by

the

supplier

or

by

another

person

who

is


entitled

to

the

benefit

of

any

charge

or

encumbrance


disclosed

or

known

to

the

consumer

before

the

contract

is


made;

and


(c)

in

the

case

of

a

contract

for

the

supply

of

goods

under


which

the

property

is

to

pass

or

may

pass

to

the


consumer---an

implied

warranty

that

the

goods

are

free,


and

will

remain

free

until

the

time

when

the

property


passes,

from

any

charge

or

encumbrance

not

disclosed

or


known

to

the

consumer

before

the

contract

is

made.

PAGE

27

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