Australian Consumer Law

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Answer 1 Liability of Mr and Mrs Lee in this case At the time when loan ws taken by their son and Lim, when guarantee was entered parents Mr Lee and Mrs Lee were old, did not understand English well and had received no independent advice. Banks under the provisions of ACL cannot seek to enforce guarantee agains parents, as their liability is limited in view of the above facts and normally family gives the guarantee. Therefore though consented in writing real consent was not given. Under the provisions of Section 21 of Australian Consumer Law unconscionable behaviour is not allowed .It is totally prohibited it is conduct, action , a statement or behaviour that is in defiance of the conscience that is good.The following conduct are the examples of unconscionable conduct: 1)The conditions of contract are not explained properly to the person with learning disability or to persons who do not know English 2) Hardly any time is given to the person entering into contract to read the aggrements nor are they allowed to question much and the legal implications in respect of contract are not explained. 3) Getting blank forms signed by the parties to the contract. It can be thus argued by Mr and Mrs Lee that they were made to sign blank forms and no legal implications were explained to them. They hardly knew English and were not Australian Courts have set side guarantee agreements in many case where unconscionable conduct was taken into consideration where one party is at a special disadvantage. In this case the parents are old and do not know English so they can be at special advantage In the case of one of the famous case of Commercial BankmOf Australia v Almadois,the contract was set aside on the grounds of unconscionable conduct on the part of Bank. The Court took into consideration that Bank was aware of the fact that Amadios did not know English and were not even aware of the financial position of their son,held that bank's conduct was unconscionable.Amadios got the contract of their guarantee set aside. This case is somewhat similar to that of Mr and Mrs Lee.The grounds of unconscionable conduct of bank in seeking enforcement of guarantee. Furthe defence in case of Mr and Mrs Lee is they too were not aware of the financial position of their son . It was under the influence of he being son, had entered into guarantee agreement . They even had linited liability, They were old and the legal implications arising from the guarantee agreement was not known to them .Bank had taken advantage of their not knowing English . They were made to sign on the blank forms and nothing was read or explained to them .They were not even informed about the non payment of instalments by the son or the bank.It is the proceedure of the bank to get the signature on blank forms .Presuming that Bank cannot do wrong by getting signature on blank forms and reposing their trust on bank, Mr and Mrs Lee gave their signature on the blank papers.Moreover Mr Lee and Mrs Lee wre not left with timeto seek the legal advice in respect of the guarantee agreement.It is thus presumed on the basis of the precedent of case law of Commercial Bank Of Australia v Amadois 1983 151 CLR 447 that in the grounds of unconscionable conduct by the Bank Mr and Mrs Lee may succeed in getting the guarantee agreement set aside.Australian Laws have applied this doctrine of unconscionable conduct in many cases. Though there are no specific principles for the basis Answer 2 Belinda can sue the ferry company for the loss of her car.Belinda can claim compensation and damages for loss of her car. Belind had not read the terms and conditions printed behind the ticket. She had not even read the similar condition witten on the ferry which she boarded along with her three children. It was written that "All passengers and vehicles use this ferry at their own risk" It is said that all these types of writings like No Exchange are all legally not binding. Article 12 of Hague Convention states in general rules Liability of shipper.If the goods are lost or damaged due to the negligence of shipper his agents or servants, only than the shipper is liable to pay compensation or damages.But damages or loss of goods is incurred to save the ship, thsn in that case the shipper is not liable.If the gods are lost due to negligence and in attempt to save due to such negligence than the shipper is liable to pay compensation and damages only to the extent of negligence and not due to saving. In this case, Belinda can take action against ferry company for loss of goods as the goods were lost due to tne negligence of the Captain. Due to negligence, ferry collided with an underwater obstruction in which the lives of passengers were safe. They were resued.But the ferry and the goods on it could not be found .They were lost. Belinda has right to recover damages and compensation for the loss of her car The amount to be calculated by producing all tge documents for purchae of car and insurance thereof. Though it is written on the back side of ticket, it is not in the contract that vehicles can take ferry at their risk. The things peinted have no legal binding as they are general instructions. Even when the car was put on carrier, it was not informed. Here shipping company is liable as there was negigence on the part of Captain and he did not take due and reasonable care. BelaeV Markworth Shipping Company Ltd(1981)SBHC 10(1980 _1981)SILR 218 23 October 1981 In this case it was held that the receipt of cargo and contract of carriage two different things .Terms and conditions on cargo receipt is not valid as it is not in contract of carriage. Belinda can claim by accusing the shipping company that no where in carriage contract it is written that "All passengers and vehicles use this ferry at their own risk. In this case it is the liability of shipping company to pay compensation and damages to Belinda as the car was lost due to the negligence on the part of the Captain.But Belinda can take action against shipping company only if she can produce the bill, date of purchase of car and any other related documents of the car along with insurance policy of car. Belinda had used the ferry number of times before.But had never noticed the writings on the ferry . The duty of the Captain is to take due care and diligence and any kind of negligence makes the shipping company liable to pay damages and compensation in loss of goods. It is thus concluded that Belinda can take action against the shipping company to pay the damages and compensation on the condition that she can produce the documentary proof relating to the car as the amount of damages have to be calculated too. All the laws that apply to this case are ACL Law Of Torts Hague Convention and Sea Carriage Goods Act. Key words Unconscionable conduct Loss of goods by sea Hague Convention Australian Consumer Law Guarantee Agreement Contract of carriage Ferry
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