In the presents Consumer Law Assignment Help report we are going to discuss the Australian consumer law and contract law with taking reference of a tour brochure by Infinity holidays Tour Company Australia and we have chosen the brochure of “The really wild tour- Sunau & Danum valley -5 days/ 4 nights tour”. All the aspects of consumer law will be discussed with the help of the brochures’ terms and conditions.
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1.Identify the key information about the holiday as set out in brochure.
In the brochure “The really wild tour- Sunau & Danum valley -5 days/ 4 nights tour” the information related to the tour are given with everyday details and there are two pictures given in the brochure the first picture is of two monkeys and the other picture is the map of tour.In the brochure there is detail about the itinerary which says the tour will cover Kota Kinabalu, then Sandakan then Lahad Datu and then back to Kota Kinabalu. There is also the information about what is included in the tour and it says that it includes four night accommodation in a standard room. It also includes four breakfasts, four lunches and four dinners. The tour also includes return flights from Kota Kinabalu to Sandakan and from Lahad Datu to Kota Kinabalu and it also includes the entry fees and an English speaking guide and the departure is at 5:30 am daily. There are highlights also mentioned of the tour on the right side which tells about the speciality of the tour and it includes seeing the feeding of orang-utan at the Sepilok Orangutan Rehabilitation Centre, river cruises to the Menanggul and Kinabatangan rivers also see nature trails and a tree-top canopy walk in Danum Valley, also a night drive in an open top vehicle and see nocturnal animals and finally trek into the Kadazandusun burial site of the “Coffin Cliff”. The price of the extended tour is given which is 2079 for adults and 1598 for child in the low season and 2120 for adults and 1639 for the child in the high season. Below the price detail it is written that the price for the children of 0-1 years will be given on request and the child price applies for children between the ages of 2-11 years and also passport details are required for the issuance of climbing permit. In the last lines below the map it is written that year round/ high season prices that are shown are for per person on twin sharing basis and it is comparative guide only, you need to ask your travel agent for the correct pricing and dates. A single supplement may apply and child is based on 1 child with two adults in the existing bedding. Surcharges may apply due to demand, Christmas and new year’ eve and public holidays, trade shows special events and other circumstances. The tours may not operate on certain dates. Tour itinerary and inclusions may vary due to road and weather conditions or other unforeseen circumstances and the maps are to be used as a guide only (INFINITY HOLIDAYS, 2014).
2.Critically analyse the package using the principles of contract law found in case law and categorise the statements into representations, terms, conditions and warranties.
Representation: They are pre-contractual statements which if are proved to be false then the Australian Consumer Law provides remedies under section 18 (CLARKE, Julie, 2013).
Terms: Are those statements that are incorporated in the contract if the parties to the contract have intended that the terms will be promissory in nature (CLARKE, Julie, 2013).
Conditions: Conditions of a contract are the most important or fundamental terms of the contract and the breach of the contract would give the innocent party to the contract to end the contract and also to recover the damages of the loss suffered because of the breach of the condition (COOPER, John and Robinson, Allens Arthur, 2004).
Warranty: Is a term in a contract which is used to denote the required level of performance of an asset or some goods or service. It is also used as a term that is to be implied by statute. Under the Australian law the warranty terms are not considered as of much importance and it is of less importance than the condition of a contract and if it is breached then the party that suffered loss only has the option of accepting the repudiation of the contract and only recover the damages suffered (COOPER, John and Robinson, Allens Arthur, 2004).
To determine whether a term is a condition or a warranty will be determined by “The Test of Essentiality” which was given in the case of Tramways Advertising Pty Ltd v Luna Park (N.S.W) Ltd, (1938) where it was held that the test of essentiality will decide whether the promise was of such importance according to the circumstances that the promisee would have not entered into that contract if that promise and its performance was not promised (COOPER, John and Robinson, Allens Arthur, 2004).
Now coming to the present brochure the different terms of the contract have been discussed below:
Representation: In this brochure there is no such representation done and in the this is written on the on page 41 in the agency section it is written that the infinity holidays does not make or give any representation regarding the standard of those products or services which are provided by the service providers but we can say that in the brochure the tour is described as being a great trip with many highlights and if any of the highlights are incorrect then the tourist can take the help of the Australian consumer law.
Warranty: In this brochure there is one warrantee given in the form of written guarantee which says in the page number 41 in the prices sections that the prices are valid for travel between 1 April 2014 to 31 march 2015 and the price is only guaranteed once paid in full. And if this warranty is broken then the consumer can take help of Australian consumer law.
3.Critically analyse and identify any material in the brochure which is potentially; unconscionable misleading or deceptive, false representation, bait advertising, offers gifts or prizes.
The Australian Consumer Law (ACL)
(GIBSON, Andy and Fraser, Douglas, 2011) main aim is to protect consumers and to ensure fair trading and globalisation in Australia and it is a national, state and territory law from 1st January 2011 and it also includes the unfair contract terms legislation introduced on 1 July 2010. The law on the following terms has been discussed below (AUSTRALIAN COMPETITION AND CONSUMER COMMISSION, 2011):
Unconscionable misleading: The act says that it is unlawful for a business to make statements in trade and commerce that are misleading or deceptive and this includes advertisements, promotions, quotations, statements and it is given in section 18 and 19.
False representation: It will be unlawful to make claims or misleading claims or representations and this could be about testimonials, requirements to pay for guarantees, conditions and warranties for goods, the price of the goods and services, the Best quality or grade of the goods or service and services or advertisements and these are given in section 29-38 and sections 151-160.
Bait advertising: This means the advertisement of goods at a certain price but the business does not have a reasonable supply for the customers to buy. This is done to attract the customers and when they come to the shop to buy the product it is said that it is out of stock and they try to sell the products at higher price.
Offers, gifts or prizes: It is unlawful to offer rebates, gifts, prizes without the intention to provide them or not provide them as was offered. Also the rebate, gift or prize should be provided within a specified or a reasonable time (AUSTRALIAN COMPETITION AND CONSUMER COMMISSION, 2011).
In the present brochure the potential misrepresentation and advertisement has been discussed below:
Unconscionable misleading or deceptive: Well in the brochure there is no such misleading or deceptive advertisements done but if we look at the overall brochures we can feel that the quality of the services and at Danum and Sunau as a holiday destination is being given too much appreciation and as for an Australian having a holiday in Danum and Sunau can be difficult as the language is different and the food and culture is also very different and these issue do not seem to find any answer in the brochure.
False representation: In this brochure there is no false representation
Bait advertising: In the brochure we could not find any bait advertisement.
Offers gifts or prizes: In the brochures there are no offers provided for the really wild tour- Sunau & Danum valley -5 days/ 4 nights tour three days tour that we have chosen.
4. Critically examine the brochure and identify any exclusion or limitation clauses and explain using the principles of contract law whether the clauses would be valid.
According to Australian contract law an exclusion clause is also known as exemption/limitation clause and it means a term in a contract of contract which is drafted with the intention to exclude, restrict, or to modify any remedy or liability that arises out of the breach of a contractual obligation. To be valid it is required to be seen that the clause is incorporated in the contract, the parties are given the option to accept or reject the contract and the parties understand the clause well (LIOE, Ester, 2011). Now coming to the present brochure there are many exclusion clause in the brochure which are given on the page number 41 in the Brochures errors and omissions section it is written that infinity holidays disclaims all liability to any party for loss or damage resulting from such errors or omissions. In the Agency section also exclusions is given that infinity holidays has no responsibility for the products or services provided by the service providers nor does it make or give any warranty or representation regarding the products or services provided by the service providers and for any claim the liability will be against the service provider and not infinity holidays. Also in the liability section it says that to the extent provided by law, infinity holidays do not accept any liability in contract, tort or otherwise for any injury, damage, loss including consequential loss, delay, additional expense or inconvenience caused directly or indirectly by the acts, omissions or default, whether negligent or otherwise, of third party providers over whom we have no direct control, force majeure or any other event which is beyond our control or which is not preventable by reasonable diligence on our part. Our liability is also limited to the extent that any relevant international conventions. This liability clause is subject to the rights under the Australian consumer law.
These terms will be valid as in the terms it is written that this liability clause is subject to the rights under the Australian consumer law and it is also written that nothing in these terms and conditions is intended to limit any right the person may have under the Competition and Consumer Act 2010 (Cth) . There is not any signature, on the brochure so it is not yet binding on the parties till the terms form is signed by the parties (INFINITY HOLIDAYS, 2014).
- AUSTRALIAN COMPETITION AND CONSUMER COMMISSION. 2011. General law A guide for businesses and legal practitioners. [online]. [Accessed 10 september 2014]. Available from World Wide Web: <https://www.google.co.in/url?
- CLARKE, Julie. 2013. Exclusion clauses. [online]. [Accessed 10 september 2014]. Available from World Wide Web: <http://www.australiancontractlaw.com/law/scope-exclusion.html>
- CLARKE, Julie. 2013. Terms of a contract. [online]. [Accessed 10 september 2014]. Available from World Wide Web: <http://www.australiancontractlaw.com/law/scope-terms.html>
- COOPER, John and Allens Arthur ROBINSON. 2004. Risk Mitigation. [online]. [Accessed 10 september 2014]. Available from World Wide Web: <https://www.allens.com.au/pubs/pdf/const/pap26nov04.pdf>
- GIBSON, Andy and Douglas FRASER. 2011. Business Law, 6th Edition. australia: Pearson Education Australia.
- INFINITY HOLIDAYS. 2014. brochures. [online]. [Accessed 25 september 2014]. Available from World Wide Web: <http://www.infinityholidays.com.au/brochures>