Is the terms of Ash’s contract with Davis Car Rental Pty Ltd unfair under the ACL?
ACL s.23 states that a consumer’s contract is unfair if:
* It causes a significant imbalance in the parties’ rights and obligations,
* It is not reasonably necessary to protect the legitimate interests of the business; and
* It would cause detriment to the consumer.
The car hire contract is considered as a standard form of consumer contract because Ash paid a deposit of $500 and signed the document. The terms in the ...view middle of the document...
The term can be seen as not reasonably necessary to protect the legitimate interests of the business, and causing an imbalance in the parties’ right and obligations.
The terms in the contract is unfair to the consumer because it was not reasonably necessary to protect the legitimate interests of the business and causing an imbalance in the parties’ rights.
Can Angel take legal action against Johnny for contravention of ACL s.18?
ACL s.18 states that to establish a contravention, it must be shown that the business was misleading or deceptive or likely to mislead or deceive. ‘Mislead’ is usually interpreted as ‘to lead into error’ and ‘deceive’ means ‘to cause to believe what is false’.
Johnny put a large sign on his restaurant window promoting his pasta dishes, but he still uses tinned olives. The public will consider the dishes actually made with all fresh ingredients rather than fresh from the tin. Johnny intended to make his consumers to believe what is false, so the conduct was misleading or deceptive.
Angel can sue Johnny for the contravention of ACL.