AUSTRALIA Trends and Developments Contributed by: Greg Williams, Alexandra Rose, Caitlin Sheehy and Carla Rank, Clayton Utz
er, including passenger vehicles. This includes the acceptable quality guarantee in Section 54 of the ACL. Goods are considered to be of accept - able quality if they are: • fit for purpose; • acceptable in appearance and finish; • free from defects; • safe; and • durable. This standard is based on what a reasonable consumer, fully acquainted with the state and condition of the goods (including any hidden defects) would regard as acceptable in terms of matters such as: • the nature and price of the goods; • statements or representations made about the goods; and • any other relevant circumstances. Position on “reduction in value” damages from Toyota Section 272 (1)(a) of the ACL creates a right on the part of an “affected person” to recover “reduction in value” damages from a manufac - turer of goods which do not comply with the statutory guarantee of acceptable quality. This is the principal remedy sought by plaintiffs in all the automotive class actions brought against manufacturers in Australia to date. In its November 2024 judgment, the High Court determined the following in relation to “reduction in value” damages: • “reduction in value” damages are an amount by which the value of the good is reduced at the time of supply to the consumer as a result of the failure of the good to comply with the guarantee of acceptable quality at that time;
• the assessment is to be undertaken having regard to what is known about the “state and condition of the goods” at the time of trial (including the effectiveness, cost, inconven - ience and timing of any repair of a defect in the goods); • there is no requirement that the “affected person” establish any actual loss or damage for entitlement to “reduction in value” dam- ages (ie, these damages are not compensa - tory); and • the right to claim “reduction in value” damag - es runs with title or ownership, meaning that the claim of the initial purchaser of the vehicle to “reduction in value” damages will cease upon any subsequent sale. Position on damages under Section 272 (1)(b) of the ACL from Toyota Section 272 (1)(b) of the ACL provides a right to claim for damages to compensate for reason - ably foreseeable loss or damage that a plaintiff suffers as a result of a defect. By way of exam - ple, in the context of vehicles, this may include compensation for the increased servicing costs or increased fuel consumption costs as a result of a defect in the vehicle. Unlike the section 272 (1)(a) “reduction in value” damages, previ - ous owners of a defective vehicle are entitled to claim compensation from the manufacturer of that good, so long as they can prove the conse - quential loss or damage alleged. Part 2: Fair trading issues in the digital economy A continuing focus of the ACCC has been unfair practices in the digital economy, including mis - leading or deceptive advertising by influencers marketing via social media, online reviews, in- app purchases and price comparison websites. This shift reflects the growing dominance of digi - tal platforms and technologies in the economy,
35
CHAMBERS.COM
Powered by FlippingBook