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Table of Contents
Part A- Case study analysis.
IRAC analysis to address the issue.
Part B- Pleading and ongoing process draft
The safeguarding of the interests of consumers and providence of protection to the consumers from fraudulent commercial activities is one of the primary focuses of the civil law of a nation (Howells & Ramsay, 2018). The judiciary system of Australia is also associated with the same and has its keen interest to safeguard the consumers from being cheated and from breach of contract. In this study, the analysis of the case of Clark Kant will be done in order to identify the potentiality of Australian legal system so as to provide protection to the consumers of the nation.
IRAC analysis to address the issue
As per the provided case study of Clark, an episode of fraudulent commercial activity has conspicuously been noticed. Clark and OzeBroker have signed a formal contract about the delivery of a Romeo Giulia Spider car and OzeBroker has acted as an agent and one of the vendors of the delivery of the car. Clark being the consumer has followed the norms of the contract and has made payments. The total cost of the car has been estimated at about 120,000 Australian dollars including door to door shipment. As per the viewpoint of McKendrick & Liu (2015), in a business or a formal contract the entire value of the money of the transaction is highly important. In this context, Poole (2016) has added that, the date up to which the contract remains valid should also be prominently mentioned in the contract. In this case also, both the factor has been maintained and the ultimate period of the delivery of the deliverable, that is, the car has been mentioned as 1April 2020. Hence, from this angle, it can be analysed that no ambiguity has been noticed in the contract. However, both the vendor and the company have not delivered the item till the ultimate date mentioned at the contract paper. In spite of the payment to OzeBroker, the vendor of Alfa Romeo Giulia Spider Roadster and AFES (Escrow service of Australia), the consumer have not got the delivery of the product. This is the primary issue identified in the case study. The additional issue is that the consumer of the case study, that is, Clark has his intention to recover the money that he paid to AFES and Ozebroke as he has not got the delivery of the car. As per the viewpoint of Roberts (2017), a contract or a breach of the same should be analysed from the terms and conditions that have been mentioned in the contract paper. However, in this contract, the fact of revert backing of the payment has not been mentioned. Hence, from this angle, it can be mentioned that the recovery of 120,000 dollar for Clark is definitely an issue.
The aspect of implementation of law is also quite critical for this case. The analysis of the case study has informed that OzeBroker is the agent of the company Chimera Enterprises, which is a commercial unit of Sumerya. Clark has researched about the consumer protection law of Sumerya and it has been identified that there is no such well-structured corporation or company law. As per the viewpoint of Tripodi (2015), the united nation has developed legal standards regarding international goods selling and each aspect has been prominently mentioned in the UN CISG. It has been identified that Sumerya is not a signatory of CISG. Hence, from this angle, it should be very difficult to get justice, while preceding a case against Chimera Enterprises as per the Sumeryan Judiciary.
However, as per the legal system of Australia, the application of different acts can be done, in which consumer’s right related act and contract law is prior to be mentioned. ‘Competition and consumer Act-2010’ (CCA) has been developed with the prior vision to protect Australian and their rights as a consumer. In part 1 section 2 of CCA, the objective of the act has clearly been mentioned, which includes the maximisation of competition and fair trading in Australia by safeguarding the right and interest of the consumers (Federal Register of Legislation, 2011). However, this act should be applicable to the commonwealth and the territories under commonwealth authority.
Additionally, the law regarding the practice of fair trade has also been focused by the Australian government. As per the words of Crook (2016), ‘Trade practice act’ has been passed in the year 1976 with the primary intention to manage the activity associated with fair trading. Part-V of the mentioned act has been dedicated to the protection of the consumers of Australia. The part -V division-1 of the act is directly associated with different unfair activities tagged with a commercial transaction and these activities have been defined prominently to make the consumers aware about the fraudulent commercial activities (Federal Register of Legislation, 2010). Section-56 of part-V has mentioned bait advertisement and has defined it as a crime in the ground of fraudulent activity. On the other hand, Section 58 of part V of the act has stated about the payment acceptance without the delivery or supply of the order (Paull & Hennig, 2018). This is one of the most prevalent crimes that have been identified under the fraudulent commercial activities. All the factors have been implemented to minimise the fraudulent commercial activities in the Australian market.
Apply to the fact
CCA-2010 is directly associated with the protection and safeguarding of the interest of the Australian consumers. Clark has been cheated by the vendor concern of Alfa Romeo cars. Hence, from this angle, it can be mentioned that, the interest of the consumers has not been safeguarded and breach of contract has happened. The mentioned act is applicable in this case. However, in the previous section it has been mentioned that this law is only applicable for the Australian market and for Australian companies. Hence, from this angle, it can be commented that this will not be applicable for the company of Sumerya. However, OzeBroker is acting in the land of Australia and has performed fraudulent activity in the land of Australia. Moreover, the breach of contract has also been done in this context. Hence, from this angle, it can be mentioned that CCA-2010 is definitely applicable over the case filed by Clark against OzeBroker.
On the other hand, Section 58 of part V of Fair Trade Act-1976 is dedicated to the minimisation of the issues like the payment acceptance with no delivery of the deliverable (Federal Register of Legislation, 2010). This is directly aligned with the case of Clark as OzeBroker has not delivered the car within 1 April 2020 as per the words of the contract paper. However, they have accepted payment.
At the conclusion section, it can be mentioned that as per the legal system of Australia, both the fair trade act and CCA-2010 is applicable in the case of Clark and Clark should get justice. The refund of the payment money should definitely be done along with the penalty charge for harassment and breach of written contract. As per the official website of ACC, the aspect of repair, refund and replace is tagged with it (accc, 2020). Clark has to file a case in the Australian consumer court commonly known as ACCC.
Claim for the payment money of 102,000 AUD back by Clark Kant from AFES
Note: The aspect of reimbursement has also been tagged with the NL act of 2008. Hence, from this angle, the plaintiff can claim the money that has been paid without his concert to the third party.
The plaintiff should get back the payment money along with the compensation for the issue harassment and loss of money.
The case can be filed in the compensatory ground as the consumer’s interest has not been properly protected by the activity of AFES. Moreover, plaintiffs have to face harassment regarding the investigation of payment through Escrow. This has created stress over him which he does not deserve. Hence, compensation should be claimed against this issue from AFES and this should be paid with the payment money.
On the other hand, the plaintiff has to pay the fee of a lawyer in order to conduct this case. Moreover, the court fee is also associated with the same. Hence, the plaintiff should also claim the lawyer fee and the case fee of the entire trial process.
Consumer forum of Australia, ACCC should be the best option to file this case by Clark against AFES.
Alternative approach to service
accc, (2020). Repair, replace, refund. https://www.accc.gov.au/consumers/consumer-rights-guarantees/repair-replace-refund
Crook, A. (2016). From Protection to Competition—The Politics of Trade Practices Reform in Australia. Australian Journal of Politics & History, 62(1), 151-152. https://doi.org/10.1111/ajph.12225
Federal Register of Legislation, (2010). Trade Practices Act 1974. https://www.legislation.gov.au/Details/C2010C00331
Federal Register of Legislation, (2011). Competition and Consumer Act 2010. https://www.legislation.gov.au/Details/C2011C00003
Federal Register of Legislation, (2016). Law of negligence and limitation of liability Act 2008. https://www.legislation.gov.au/Details/C2016Q00058/Html/Text#_Toc197935308
Howells, G., & Ramsay, I. (Eds.). (2018). Handbook of research on international consumer law. Edward Elgar Publishing. https://books.google.com/books?hl=en&lr=&id=codlDwAAQBAJ&oi=fnd&pg=PR1&dq=consumer+protection+law+in+australia&ots=-_35DZ-_Ei&sig=aieHiflY9RHhNWxyFA2UmAhDgBA
McKendrick, E., & Liu, Q. (2015). Contract Law: Australian Edition. Macmillan International Higher Education. https://books.google.com/books?hl=en&lr=&id=DiGnCgAAQBAJ&oi=fnd&pg=PP1&dq=contract+law+australia&ots=iC3IdYXU-B&sig=rorLMx2PdA_894XYXCIPH3m5zVk
Paull, J., & Hennig, B. (2018). Maps of Organic Agriculture in Australia. Journal of Organics, 5(1), 29-39. https://orgprints.org/34291/
Poole, J. (2016). Textbook on contract law. London: Oxford University Press. https://books.google.com/books?hl=en&lr=&id=cOQmDAAAQBAJ&oi=fnd&pg=PP1&dq=contract+law+australia&ots=SH7PSh3IIC&sig=gAK80VfGOnvsljqMA4OPSRAmmvo
Roberts, M. (2017). Variation contracts in Australia and New Zealand: whither consideration?. Oxford University Commonwealth Law Journal, 17(2), 238-264. https://doi.org/10.1080/14729342.2017.1360604
Syuib, M. (2020). The Protection of Online Shopping Consumer Rights in Australia. Jurnal Justisia: Jurnal Ilmu Hukum, Perundang-undangan dan Pranata Sosial, 5(1), 13-23. https://www.jurnal.ar-raniry.ac.id/index.php/Justisia/article/view/7268
Tripodi, L. (2015). Towards a New CISG: The Prospective Convention on the International Sale of Goods and Services. Brill. https://books.google.com/books?hl=en&lr=&id=PSxzCwAAQBAJ&oi=fnd&pg=PP3&dq=Convention+on+the+International+Sale+of+Goods+(CISG)&ots=IwfoEIxHwR&sig=IlSM1AKmid3pucpYjz2dBC3g6MQ
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