Cheated by a trader? You have rights as a consumer

Cheated by a trader? You have rights as a consumer

Many of our clients have been in the same unfortunate scenario before: They have paid a deposit for a service, or bought something, and then they find out that the services and goods were not what was advertised. Many people decide to swallow their frustration even when the supplier refuses to compensate them. However, there are remedies for those who have suffered loss from goods and services sales available under the Australian Consumer Law (ACL) and under common law.

How can the ACL protect my rights in this case?

You may have a claim under s18 of the ACL for misleading or deceptive conduct, generally for goods and services of under $40,000 value. Exceptions do exist for other goods for personal or domestic use e.g. cars. If the sale was made in a non-commercial context, you may still have a claim under common law misrepresentation.

18   Misleading or deceptive conduct

 (1)  A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

In Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54, the High Court confirmed the importance of s 18 in protecting consumer interests by holding ‘headline’ advertising may be misleading even with the existence of a fine print disclaimer qualifying the representations in the headline statement.

Some examples include: Marketing of the same painkillers as targeting different types of pain (ACCC v Reckitt Benckiser (Australia) pty ltd (ACN 003 274 655) - 340 ALR 25). Unreasonable estimates of cost for services may also fall under s18 (Bartlett v Weatherill [2017] NSWSC 31).

Are there any exceptions?

The false statement must be one of fact, as opposed to a statement of opinion or a promise. Hence an advertisement stating “Our washing powder will make your clothes whiter than ever!” cannot be misrepresentation. However, factual statements such as “this phone comes with 16GB memory” are statements of fact, not opinion and can hence be misleading if found to be false.

What can I do if I discover a misrepresentation?

For areas not covered by the ACL, there can still be action under common law misrepresentation.

Misrepresentation is the giving of false information by one party to the other before the contract is made, to entice them to make the contract. If you decide to enter into a contract in reliance on a misrepresentation and suffer loss as a result, you may be entitled to claim damages.

If you relied on a misrepresentation in entering a contract, you can either rescind the contract (placing both parties at the position they were at before entering the contract) or sue to compensate for any loss.

Should you want to rescind, you should do so promptly. You could lose the right to rescind if you knew of the misrepresentation but do something that indicates that you want to continue with the contract.

Alternatively, you can sue for damages. This requires you to have suffered a loss as a result of the misrepresentation.

Who can help me?

Every case is different and requires expert knowledge to help you determine what actions are in your best interests. If you feel like you have been cheated, please contact AHL legal for a consultation. AHL Legal is the largest Chinese legal firm in Australia and has experience assisting throughout all jurisdictions in Australia.