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Sections 18(1) and 29(1)(m) of the Australian Consumer Law
The terms of ss 18(1) and 29(1)(m)
42 Section 18(1) provides:
Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
43 Section 29(1)(m) provides:
False or misleading representations about goods or services
(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:
- …
- (m) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3-2)…
The dependency of the representations upon s 54
44 The conduct and representations alleged by the ACCC to contravene ss 18(1) and 29(1)(m) concerned matters arising where goods are not of “acceptable quality”. The ACCC also pleaded that the representations were misleading for reasons including that s 64 prevents consumer guarantees from being modified or excluded. The ACCC accepted that ss 18(1) and 29(1)(m) could only apply in this case if the s 54 guarantee of acceptable quality was capable of applying to a supply by Valve. Section 54 falls within in Division 1 of Part 3-2 (Chapter 3) of the Australian Consumer Law. The ACCC assumed that s 54 must apply because the alleged misrepresentations related to acceptable quality (the concern of s 54). The assumption was that if s 54 did not apply then the alleged representations could not be misleading conduct or false representations concerning whether goods were of acceptable quality. I also proceed on that assumption.
45 Section 54(1) provides for a guarantee that goods are of acceptable quality if (other than a sale by auction) a person supplies, in trade or commerce, goods to a consumer.
46 Section 54(2) provides that:
Goods are of acceptable quality if they are as:
- (a) fit for all the purposes for which goods of that kind are commonly supplied; and
