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My client A comes to see me for asking some advices to deal with a legal issue which is about booking a holiday accommodation. This essay will talk about this legal issue; the booked room is unavailable because of the double booking error in one year. It is believed that the misleading and deceptive conduct of Accommodation Noosa Office Pty Ltd has breached the contract. Therefore, client A is able to ask for remedies.

 

A has booked a holiday room through Accommodation Noosa Office Pty Ltd twelve months in advance. The two parties are client A and the agent company, and they have commercial agreement to be legally bound due to the booking business. The agent offered a room as an offer and A booked the room twelve months in advance as an acceptance; as a result, they have agreement. In addition, A has booked the room which means A has paid deposit as the consideration to exchange the value. Furthermore, they have legal capacity, genuine consent and legal objects. In short, there is a valid contract between client A and Accommodation Noosa Office Pty Ltd. Moreover, the right room in this contract is condition, because it is a very important term for my client. However, the accommodation cannot offer the right room to perform the obligation, so the company has breached the condition in the contract.

 

Conduct as a vital part in the section 18 cannot be ignored. Conduct is not only about the positive statements; however, statements of facts, broken promises and silence can also be caught in Australian Consumer Law. [1] In this case, it is easy to see that the company has broken the promise. My client A has booked a room successfully from the company twelve months in advance which means the agent has made a promise to my client. The promise is that the agent can offer a right room after customer booking. However, at last, the agent cannot offer the correct room which my client has ordered before one year. As a result, the agent has broken the promise. In the case of British Airways Board v Taylor (1976) 1 All ER 65, the overbooking has the false promise.[2] These two cases are similar in terms of the premises and booking problem. It is believed that the conduct of this accommodation company cannot be accepted.

 

What is more, the silence should be considered in this case. The silence can be misleading or deceptive when the change of circumstance results in the information has become false.[3] The double booking error of the agent has given rise to the unavailability of the specific room. Client A did not cause the booking error, so client A doesn’t have the responsibility. On the other hand, the accommodation company should find out the solution to resolve the error. Moreover, the company did not inform to my client about the error during the twelve months which is a very long period. On the contrary, the accommodation company just kept silent about the double booking error. The change of the circumstance by the double booking error has resulted in an incorrect room; consequently, the silence of the agent can be misleading or deceptive. In the case of Hai Quan Global Smash Repairs v Ledabow Pty Ltd (2004) ATPR 42-025[4], the silence of defendant has led to the misleading. From this similar case, it is easy to find out that silence can lead to misleading and deceptive conduct. Furthermore, when my client booked the holiday room, the agent could not offer any reasonable grounds to guarantee the available room in the future. Therefore, the conduct of Accommodation Noosa Office Pty Ltd can be regard as misleading and deceptive conduct.

 

The section 34 in Australian Consumer Law identifies the misleading conduct regarding services; the natures, characteristics, suitability for their purpose or quality of any service are important in this part. In Doherty v Traveland Pty Ltd [1982] 4 ATPR 40-323, the agent finally got fined due to the changed service.[5] This case is important because it demonstrates the misleading services cannot be accepted. The agent offered a wrong room to my client which cannot appeal my client’s purpose as the original room, so the service about misleading and deceptive conduct cannot be accepted.

 

In addition, the section 36 in Australian Consumer Law helps people avoid paying or considering consideration for services and goods when it does not have the intention to offer or the goods or services are different from the original one. The Dawson v World Travel Headquarters Pty Ltd (1981) 53 FLR 455 is a good example in this section[6] because it clearly states the service should be intended to be supplied. People can refuse to accept the inexistence intention or the wrong services and goods. In this case, the supply of the company is different from the original one. Although the agent offers another room to my client, the room cannot satisfy my client. Therefore, this case is an unfair practice which breaches the section 36. According to the section 36, my client can refuse to pay the wrong room and ask to remedies.

 

According to Gibson and Fraser[7], conduct by a person, the activity of trade or commerce and misleading or deceptive conduct, or conduct likely to mislead or deceive are three elements which make up section 18 of the Australian Consumer Law. After identifying the three elements, any people or business can against the party which is misleading or probably mislead or conduct. In this case, Accommodation Noosa Pty Ltd is a company to offer the accommodation services for profits; as a result, Accommodation Noosa Pty Ltd as a legal person in law has the activity of commerce. If the advertisement, statement, promotion or representation from the business can lead to the misleading impression in people’s mind, the conduct might break the law.[8] The company has broken the premise and kept silent about the booking error. In addition, Accommodation Noosa Pty Ltd offered the different services to my client, giving the misleading impression about the room in my client’s mind. In short, according to the three elements, the conduct of Accommodation Noosa Pty Ltd can be regarded as misleading and deceptive.  

After the analysis, it is accepted that Accommodation Noosa Office Pty Ltd has misleading and deceptive conduct; as a consequence, Accommodation Noosa Office Pty Ltd cannot perform the obligation in contract. Therefore, Accommodation Noosa Office Pty Ltd has breached the contract, so client A can ask for remedies. A can sue Accommodation Noosa Pty Ltd to the court for the breach of the condition in the contract. Moreover, my client has suffered from disappointment mood and it may influence the holiday because of the incorrect room. As a result, client A can ask for restitution and remedies. What is more, the Accommodation Noosa Pty Ltd may get the fine due to the misleading and deceptive conduct.

 

In conclusion, Accommodation Noosa Pty Ltd has the misleading and deceptive conduct. The reason of the misleading and deceptive conduct has been talked about in this essay. A appreciate room which is the condition in the contract has been breached by the company. This explains why the client A can take actions to ask remedies to against the accommodation.

 

 

 

 

 

 



[1] Gibson, A & Fraser, D, 2010, Business Law, 6th Edition, Pearson Prentice Hall p.607

[2] Taperell, G Q, Vermeesch, R B, & Harland, D J, 1983 Trade Practices and Consumer Protection, 3rd edition, Butterworths

[3] Australian Consumer Law, 2010, General law a guide for businesses and legal practitioners, viewed 27 November 2012 http://www.consumerlaw.gov.au/content/consultations/downloads/ACL_Guide_General_Law_Draft_V1.5.rtf   

[4] Coops, C & Huett, L 2006 Section 52: the sounds of silence, King & Wood Mallesons, viewed 29 November 2012 http://www.mallesons.com/publications/marketAlerts/2006/Documents/8556817w.htm  

[5] Gibson, A & Fraser, D 2011, Business Law, 6th Edition, Pearson Prentice Hall p.620

 

[8] Australian Competition & Consumer Commission n.d. Misleading & deceptive conduct viewed 27 November 27, 2012 http://www.accc.gov.au/content/index.phtml/itemId/815335#h2_17 

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