Electronic Signature Lawfulness for Business Transaction Management in Australia

How to eSign a document: electronic signature lawfulness for Business Transaction Management in Australia

hello and welcome to today's live webinar with Matthews fall big lawyers going to have your company I'm Daniel Kim your host and today's topic is navigating the icebergs of the Australian Consumer Law risk management for business it's a really important topic in the Australian business landscape but it's not one that everyone is entirely familiar with which is why I'm joined live in the studio by a couple of experienced commercial lawyers from Matthews for big lawyers Philip Brophy and Douglas Brown German welcome thank you great to be here Daniel yes thanks very much it's great to have you presenting on this webinar because it's a really important topic Phil it applies to every service and good that's sold in the country it does yes it's got a quite a broad coverage yes and also the word consumer might be a bit misleading Douglas but it applies to b2b companies just as much yeah exactly the unfair contract terms legislation applies to businesses business contracts also misleading and deceptive conduct and uncontrolled conduct that we're going to talk about that's relevant for all types of businesses yes clearly lots to cover on today's program and don't forget you can join the conversation by clicking the dark blue hand icon at the top of your screen to ask a question which will come through on this trusty old iPad of ours and we'll aim to get through as many of those questions at the end of the presentation if you happen to leave early today please click the yellow button at the top to provide some feedback before you go it would mean a lot to us if you did and it's now time to kick on to today's presentation so we're talking about the Australian Consumer Law or ACL for short it's the Commonwealth legislation which replaced the old Trade Practices Act and topics we'll cover today include Consumer Guarantees Express warranties and warranties against defects unfair contract terms misleading or deceptive conduct and unconscionable conduct well Philip that's a whole lot firstly can you explain to me a bit of the background where does it come from yes sure Daniel they come from the owl Trade Practices Act which was around since 1974 under that act they were implied warranties in particular that the goods would be of merchantable quality and fit for the purpose the ACL replaces those implied warranties with what they call consumer guarantees so they those consumer guarantees which talk about in more detail apply to automatically to all transactions with consumers yeah I see and Douglas what does a consumer mean for these purposes well the definition of consumer is quite broad includes companies so if a company purchases goods or services they can be a consumer there are dollar thresholds here so basically any goods or services you purchase for $40,000 or less will be considered a consumer transaction if you purchase it a goods or services for greater than $40,000 that can still be a consumer transaction if they're purchased for personal domestic or household use or consumption so to you an example if you bought a speedboat for one hundred and eighty thousand dollars for your personal use that would if it was for personal use would be considered transaction if you bought it for your business to hire out it would not be a consumer transaction I see I wish I was in the position to be able to buy a hundred eighty thousand dollar boat every other day so who is bound by these Consumer Guarantees so the supplier the goods which is basically person who sells the goods or supplies or services like a wholesale or retail also the manufacturer and the manufacture of manufacturers also abroad includes includes any personal company that puts their brand or logo on the goods any person who holds themselves out as the manufacturer but also importantly any person who imports goods into Australia if the actual manufacturer is not based in Australia so many importing businesses will be considered a manufacturer under the Australian Consumer Law yes a Philip or can you give us some examples of Consumer Guarantees yes Daniel there are nine guarantees for goods and three for services guarantees for goods are very varied guarantee as to title which is pretty self-explanatory it guarantees that there's no and discharged security interest in those goods such as a PPS our interest and these are the two critical ones a guarantee that the goods will be of acceptable quality and fit for any disclosed purpose some of the lesser ones I shouldn't say lesser but probably less frequently use ones or a lighter ones would be a guarantee of correspondence with an he say that the consumer might have been given also importantly a guarantee is to repairs and availability of repairs and spare parts and a guarantee that you that the supplier or comply was any Express warranty that is given over and above the the main entry warranty yeah that's a pretty comprehensive list there and you'll see it on your screen at the moment the list of nine guarantees so Phil you're saying it's the acceptable quality and fit for purpose they're the two biggest I think they're they're the important things that any consumer would regard as important yeah something breaks down they don't really care whether they've got good title to it I just want it to be a good quality yes I see and you also said there were some guarantees for services yes it's a three of them are guarantees that the services will be a provider with due care and skill that's sort of a concept of negligence a guarantee that the services are fit for the particular purpose and a guarantee that they will be provided within a reasonable time I see now it does sound a little bit legalistic and legal easy can you explain some of these in a bit more detail for us please okay yes the guarantee of title is that the supply has a right to sell those goods to the consumer and to pass good legal title to the consumer another one in the guarantee of undisturbed possession that the consumers possession of those goods will not be disturbed by any other person an example of that would be if the goods have been sold twice ah yes okay yeah like a used car yeah yep a guarantee that there's no undisclosed security interest in other words they're free from any PPS our interest but yeah and that's that's fairly standard that you what do you want to get good time yeah yeah now they don't and they don't apply we it's obvious that the title won't pass for example if it's a higher purchase arrangement ours if it's a leasehold arrangement or if the security interest was created with sequence the consumer that's fairly unusual but can apply I see well thank you very much doctors can you talk us through some of the other guarantees for consumers so Phil said the guarantee of acceptable quality is important one that means that the goods or services are the goods that rather are fit for a purpose which those goods are commonly supplied they're acceptable in appearance and finish they're free from defects which is the most important part of this and they're safe and durable now we're we're doing that reason we'll call it here so things will be taken account will be like the price the age of the goods if they're second-hand goods and other relevant circumstances such as representations made by a sales staff but though that guarantee of acceptable quality doesn't apply if any faults in the goods were specifically drawing the attention of the consumer if for example goods are damaged and and they're offered at a discount and that's disclosed to the consumer that guarantee will be lessened it is a guarantee of fitness for any disclosed purpose so disclosed purpose means anything the consumer brought to the attention of the seller or the manufacturer or the agent saying yeah this is what I want the goods for and there's also a representation that the goods would be reasonably fit for any purpose which is a supplier warrant either they'd be good for it doesn't apply when it would be unreasonable for the consumer to rely on those representations or if the consumer also has some special expertise of skill in this area so it's more protecting people who are being misled by sales stuff there's a guarantee of correspondence with description say you buy something in a catalog it matches the description also a guarantee of corresponds with a sample a demonstration model you might buy one good and then you purchase a thousand on the basis of that so it's we guarantee that those subsequent thousand pieces you purchase will correspond to that sample those like guarantees to repairs and spare parts and this is a guarantee given by the manufacturer only not the supplier saying that for a reasonable period of time after you purchase the goods there'll be repair facilities and spare parts available because you don't want to buy goods if there's no opportunity to get a spare part or get a replacement it doesn't apply if the consumer is given written notice for the cell that these facilities or parts wouldn't be available if for example it was the last item being manufacturer Gordon it was disclosed to the consumer the last one is a guarantee is to express warranties so a supplier or a manufacturer can give additional warranties in addition to the Consumer Guarantees which is a warranty against defects and this consumer guarantee means if the supplier or manufacturer chooses to give that express warranty they're guaranteeing they will comply with that warranty yes I see so there are the nine Consumer Guarantees for products Philip you mentioned those some for services three yeah sure well the guarantee of Jew care and skill is that as I said the service provider won't be negligent and the service will be provided with an acceptable level of skill and/or knowledge that the services will be fit for a particular purpose or to achieve the result that the consumer made now into the supplier but once again would not apply if the consumer did not rely on it or it was unreasonable for the consumer to rely on the suppliers skill or judgment that that's that's an unusual circumstances most people rely on the on the service provider that's why they go to them and reasonable tyre guarantee that there will be a supply within a reasonable time if the time is not specified in a reasonable time what is reasonable will depend on the circumstances see so what happens if a supplier breaches those Consumer Guarantees well to look at that we need we just need to bear in mind that there are two categories of breaches under the ACL minor breaches and major breaches the major breach is where the goods or services would not have been bought by a reasonable consumer had they no and of the nature and extent of the problem or where the goods differ significantly from the description or sample or where they are the goods or services are substantially unfit for purpose and cannot easily within a reasonable time be repaired to make them fit for purpose or where they are are unsafe now a minor breach is one that is capable of being remedied now if it's a minor breach the consumer can still require the supplier to remedy the breach within a reasonable period of time by replacing or repairing a goods or resupplying them already funding the purchase price clearly that those lines between a major and minor failure it would be you know there's not a clear line there might be some blurring between the two and so if the supplier refuses to comply with a request to remedy a minor failure or fails to comply with request within a reasonable time the consumer can reject the goods or terminate the contract or have the problem fixed by another supplier never to major breach and as I say the lines are blurred the consumer can reject the goods or terminate the contract or recover compensation but clearly these supplier doesn't want to be in that position but there's an argument about whether it's major or minor yes absolutely so now if a consumer rejects the goods the consumer can elect to receive a refund or replacement goods if a consumer terminates the contract the consumer can press for a refund hopefully the supplier would be reasonable and provide it without you know too much further action there in the case of services that might be difficult if the services have already been provided and consumed as it were but in whether it's a minor or a major breach the consumer can still take action to recover damages for any losses suffered provided those losses were reasonably foreseeable so that's getting into the areas of consequential losses as to what what has happened following the following the bridge that's really interesting that there's a no clear distinction between the major and minor bridge but it's also good that there's a legal recourse to people when there is very much an area of what of the facts of this situation yes now Douglas you also mentioned that manufacturers can sometimes be long as out for these preachers can you give us some examples of those so four of the guarantees apply all sort of manufacturers there of goods of course the guarantee of acceptable quality the guarantee of supply of goods by description that guarantee of repairs and spare parts and of manufacturer's Express warranties now a consumer can sue a manufacturer covered damages and that can include compensation for any reduction in the purchase price though the value of the goods below the purchase price you paid and also any reasonably foreseeable loss or damages Philip just spoke about but importantly a consumer cannot get a repair replacement refund from a manufacturer there you go only recover damages or costs are just money yes here now to be honest that all sounds rather scary Philip is there any way for a supplier or manufacturer to limit their liability frankly no not really Daniel they the Consumer Guarantees a mandatory their consumers rights and remedies mandatory and the liability which we'll discuss later is mandatory so if you purport to limit those consumer guarantees that term would be void or unenforceable so to give a very simple example if there was a shop in a head there was a sign that said no refunds and there any circumstances that would be void because it would be unenforceable and it would probably be misleading and deceptive and we'll talk about that later so without wanting to sound like a lawyer you can exclude warranties to the fullest extent permitted by the law and your terms of trade whatever that means you can limit the range of remedies available to a consumer to replacement or resupply or repair or paying to have the goods or serve has repaired or resupplied but that's that's still a fairly broad coverage so I think the message is the supplies just got to get it right in the first place alright so they've all this hassle what Phil is saying is that in all circumstances a manufacturer or supplier will always be liable not always I mean causation is is an important issue here so if the the failure of the goods or services to live up to their guarantees was caused by let's say the person who purchase the goods let's say they were damaged after they were delivered to the consumer because the consumer you used them in properly the consumer failed to take reasonable steps prevent damage like not maintaining them the the supplier manufacturer wouldn't be liable in those circumstances there are also cases where for example there was anything beyond the reasonable control of the supplier manufacturer let's say there's the goods or services supplied and there's an environmental disaster a flood floods your warehouse obviously a supplier manufacturer wouldn't be liable there and also to claim a refund or compensation the goods kind of been lost or destroyed or disposed of the consumer and also finally if the failure to comply with the guarantees was disclosed the consumer beforehand so as we spoke about for example acceptable quality if you sell goods at a discount and point out the the issues with the product let's say it's a secondhand good let's say it's damaged already you wouldn't be liable in that case so it's really common sense and we do look at causation so supplies and manufacturers won't be liable in cases where it clearly wasn't their fault gee I'm starting to understand why this is such an important topic for businesses they get the head around Philip are there any additional warranties or the Consumer Guarantees are fairly extensive you can choose to give an additional warranty which which is called an express warranty or in particularly you can excuse to give a warranty against defects now I frankly think that the Consumer Guarantees amount to already against defects so III we advise clients not to give additional warranties and this is some good commercial or marketing reason to do so now what just to enlarge on that concept a warranty against defects that's a representation made to consumer that at the time the goods are supplied the supplier will repairer or place those Goods rectifier or resupply the services or compensate the consumer if the goods are defective now if you choose to give a warranty against defects that must be in transparent form must be you know in a document that is reasonably playing in plain language easy to read and present it clearly must be concise not too much other wording around it state what the consumer must do to claim the warranty and what the business will do if a claim is made and prominently state that details about who's giving knew already what their address is what their phone number and email address for contact purposes state any lie any limitation period or during which the warranty must be claimed who is liable for the costs involved state that the warranty is in addition to and does not exclude the mandatory were already under the ACL and and it must have a mandatory prescribed text that's included in the packaging and the form of that wording is available the a Triple C website as I've said we generally advise clients not to offer warranties over and above the Consumer Guarantees and to exclude any other awardees as I say unless it already is negotiated or the business feels for some reason to go over and above the ACO warranties this is really good because not only are we talking about a potentially difficult or like a negative topic where you need to cover your business risk if you know the ins and outs you don't have to get more than you have to he's gonna protect your business that way you use them as a marketing tool your yeah you must comply with them so why not use them to your advantage great all right so on to a new topic now Douglas you talk about the unfair contract terms what are they and what your contracts do they let the unfair contract terms provisions there also in the Australian Consumer Law are they applied it to standard form consumer contracts in small business contracts it's very important we we set up which contracts is applied to because a lot of people out there think well if there's a term in my contract that's unfair it shouldn't be enforced well they often do it's important to see which part which parts of the legislation apply to your particular matter so a small we've discussed a consumer contract its where the value is less than $40,000 if it's for commercial use if it's a if it's greater than forty thousand it has to be for a personal domestic or household useful consumption a small business contract is a new element of the unfair contract terms regions it was added in 2016 so it only applies to a small business contract that was entered into or renewed on or after 12th of November 2016 another criteria for it to be a small business contract is it at the time the contract was intended to at least one of the parties had to employ fewer than 20 people so they're only trying to capture a small business in terms of both the employee headcount and and the third issue went away is the price so a small business contract is to find is one where the upfront price payable does not exceed three hundred thousand dollars or if the contract is for more than 12 months does not exceed 1 million dollars so it doesn't apply to all contracts you have to make sure that it satisfies the criteria and another LME's it has to be a standard form contract so that's basically a contract that is is a take-it-or-leave-it contract where you have no opportunity to negotiate where one party had all the bargaining power and they prepared the contract before you'd even had discussions so for example if you were to sign up a mobile phone contract with Optus they're not gonna carefully negotiate their standard terms they'll just say you sign it if you don't like it you go to Vodafone that's the example of a standard form consumer contract alright so yes so yeah so I mean the definition of a unfair what is unfair there are three criteria it is it would it caused significant imbalance in the rights and obligations of the parties is it reasonably necessary to protect the legitimate interests of the party really the dominant party the draft of the contract will be advantaged by the term and thirdly would it cause detriment to the the party it sort of disadvantaged by the contract if it were to be relied now the legislation there expressed terms in the legislation that set it out do you want to speak about that yes say yeah prematurely interrupted you so many thoughts going through my head listen I don't know yeah some of it sounds a bit technical so Phil's hoping you could take us through some more examples yes Section 25 of the ACL provides examples of terms which may be unfair I say may because I just examples if it ended up in court the court would look at the contract as a whole and the surrounding circumstances so examples of unfair contract terms a term that permits one party to terminate the contract I term the promote provider program enables one party to penalize the other party for a breach or termination of the contract a term that permits or has the effect of permitting one party to vary the contract or to renew or not to renew the contract so the examples that are very much unilateral where one party has all the power and it's it's not unsurprising that those terms would be unfair yeah it's interesting because sometimes traditional I've seen these as a standard in headed commas in other contexts and you're telling me these are not fair yeah they gather examples where one party can vary the price where one party can determine that it's been breached where and where one party can assign the contract or we're all importantly where they seek to them at the the other parties right to sue the party so yeah pretty pretty broad coverage the variable they see when it's a one-sided contract with one party has all the rights and lawyers would say unilateral unilateral you know so Douglas you're saying if I have any one of those contracts oh sorry any one of those clauses in my contracts it's automatically unfair not automatically so they were just examples given in the legislation and as Phil rightly said the court will look at all the circumstances of how the contract was formed and the bargaining between the parties and it also says in the ACL that if the term is transparent that will be taken on account so transparent means if it's expressed in reasonably plain language its legible it's presented clearly it's relatively readily available to the party affected by the term so what that trying to say is don't bury it in the fine print of your contract in size six point where you can't see it if you prominently display to your customer these are the terms that's got to beat your advantage so Philip what are the consequences of a contract term that's unfair well the term would be void by void we mean unenforceable but it's important to bear in mind we're not talking about the contract itself we're talking about the unfair term in that contract in might the contract may be capable of being performed without regard to that term Shane Douglas some long imagining these laws would have resulted in many suppliers updating the standard terms well that's the interesting part it hasn't you I've seen very little change most standard contracts you see have very one-sided terms and the issue is though currently the government is considering legislation to expand the scope of unfair contract terms so I discussed it before it only applies to consumer contracts and small business contracts with a certain value and a certain size of the parties they're considering making that broader to apply to a greater number of parties and also they're considering making unfair contract terms unlawful rather than just void so that would mean that there could be fines imposed on a company if they have it in their in their contract right now it's just void and unenforceable as Phil said so there's not as much of a big stick there but if companies were to be fined for having an unfair contract terms in in their contracts I think that would lead to a big change for most companies it's a typical of some big companies isn't it we'll do the bare minimum possible so if I don't have to change it up I won't even that probably is the right thing to do yeah okay so watch this space now onto our next topic misleading or deceptive conduct Philip take it away from here flee yes thanks Daniel or misleading or deceptive conduct was that was a concept in the Altai Practices Act and in the ICL section iodine says and it's fairly similar to the the wording in the old trade Practices Act a person must not in trade or commerce engage in conduct that is misleading or deceptive or is largely to mislead or deceive so they're fairly heavy words as you can see it's a person could be a company or a natural person trade or commerce is fairly self-explanatory now misleading or deceptive contact doesn't have to be active conducted it can it can manifest itself in ads packaging statements by sales staff promises opinions predictions which have no reasonable basis so it's the actual effect rather than the intention so it picks up innocent misleading or deceptive conduct if now if I can call it innocent and also silence can be misleading or deceptive either film it something it does not include what you might call puffery something like yeah we sell the best steaks in the world on the on the basis that no reasonable person would take such statements seriously but I don't suggest that people get into that territory because somebody might want to push push that boundary and say yes they worth quite clearly the bisland yes that's why they traveled halfway across the world yes that's an interesting word puffer yes yes can you give you small examples of misleading yes section 29 deals with that in more detail false or misleading representations that Goods are of a particular standard or quality that the or services are a particular standard or quality that the goods are new or false or misleading representation about the prices so it's important to get the pricing right and not just quote a price that gets people in and then hit them with you know with other other prices it's so easy to be forceful misleading in terms of representations without meaning to just business that you can see on your screen right now there's a this continues on if you go to the next year is false or misleading representations about the availability of repairs or spare parts about the original manufacturer of the goods about the need for them about the existence of any warranty that or right or remedy or concerning a requirement to pay for something that is in fact required such as such as a supplementary warranty when you might also when the warranty might be a mandatory automatic warranty all right so what are the liabilities for a company or person who engages in misleading or deceptive form well Daniel the liabilities could be a payment of damages to the aggrieved consumer or fines fines for of up to two hundred twenty thousand for individuals with 1.1 million dollars for companies what we call the equitable remedies such as restitution or an injunction or importantly disqualification from somebody for or managing a company from managing a company yeah right so big penalties indeed for both your organization and the individual yes yes I mean earlier on while talking about how knowing this can really help you not give away more than you need to but this kind of stuff just puts into perspective the really big importance and the business risk that's of getting it right yes I mean we see some of the biggest names in the news over the last couple of weeks make it headlines for all the wrong reasons exactly and you know we're not trying to be female it applies to very broad conduct I think we need inverse Isaiah says trade or commerce so he complied it any sort of business activity can be covered by misleading or deceptive conduct yeah that's right yeah lots of business risk there to be covering scary stuff indeed all right on to the last topic Douglas let's talk about unconscionable conduct yes so there are provisions in the Australian Consumer Law prohibiting unconscionable conduct and and that II assume lead in misleading assembly contact a prize to a broad range of of transactions in trade or commerce consumer transactions as we discussed before so what is unconscionable conduct well it is conduct is against good conscience it is harsh or oppressive and that's judged by the standards of the coffered law so decisions made by judges I can give you some examples in cases there was a matter about 20 25 years ago High Court case The Commercial Bank of Australia Amedeo it's a well-known case on uncomfortable conduct in that matter there were parents of a son someone's getting a loan from the bank the parents didn't speak good English the parents signed the guarantee the bank didn't explain to them what a guarantee was you know you could lose your house you're liable for all of your son's debts the bank also didn't crucially did not disclose to to the amadeo's the extent of their son's debts does their son was well underwater on his loan repayments manometers obviously suffered damage because of that they introduced transaction not being fully informed not really understanding what they were signing and it was seen in that case the bank had a lot of power and a big advantage of their Madeira and that was considered unconscionable conduct a more recent case which came out this year was a federal court decision where as an organization called empower Institute was fined twenty six point five million dollars which is a record fine and the ACL is for unconscionable conduct and other things like mislaid or deceptive conduct you seemlessly deceptive conduct and uncontrolled conduct covers some of the same ground in this case empower Institute was marketing education courses to indigenous clients in remote communities people who in many cases were illiterate or numerate they were economically socioeconomically disadvantaged their sales staff or entre offering inducements to their customers like a free tablet sign here and customers who were saying things they didn't understand taking on large debts and and they weren't really in a position to complete the courses because of their disadvantage and empowering she was basically taking advantage of people so unconscionable conduct it is not just unfair behavior it's really sort of immoral stuff who's against good conscience yeah there's a horrible example training yeah it made the news this here and their education courses particularly being targeted right now for taking advantage of international students and yeah I was trying I was struggling to get the twenty six point five million dollar son yeah it's a this kind of behavior which the key a well put the business probably had a business absolutely I mean ordinary community standards dictates that this is just wrong you don't need to learn lawyer to know this yeah we like to think it doesn't exist but obviously it does go on some factors include the relative bargaining strength of the parties whether the customer was able to understand the documents whether there was any undue pressure or influence exerted to get them to sign up and the extent to which the parties acted in good faith now it's important to bear in mind that these things are always judged in arrears you know it companies I think you've got to stand back and try and reflect on what's going on so it's all very well for a court to stand there and pass judgment but these things are you know companies should as I say take a step back take a deep breath and probably just look at what's going on mmm yeah absolutely and if it's if it's that simple really it shouldn't be that hard to not breach these that's right those are say it's fairly outrageous conduct and you would think well why would any company engage in it now it you know what as ever there are no black-and-white it in these areas what the company may think is is acceptable may be judged to be unacceptable so that's why it's important for a good business to stand back and review what's going on yes and it's particularly interesting because we're living in a post Royal Commission world where regardless of the sector's where all these comparable commissions are happening in the focus now more than ever is on good corporate behavior yes regulation legislation absolutely all part of good corporate governance which involves standing back and and considering what it going on yes so what we're going on from that we recommend to come as I train their staff on appropriate and lawful sales tactics consider the characteristics and vulnerabilities of customer base you know if you've got a non-english speaking background don't use complicated with English jargon try and use plain English or better still communicate to the people in their own language you know it's good to get a translator if it's big enough you know recommend that they get independent advice before they sign make sure that any important terms are disclosed and you know as part of that process the company may want an outsider such as a lawyer or somebody else to actually review their documents practices and procedures and just give it that you know that fresh eye and to make sure that an outsider things said it's it's okay yes lots to think about their particular in terms of the whole unconscionable conduct but that brings us to the end of the presentation Jean we packed in a whole lot in a short group I think thank you I didn't think we're gonna get through this quickly but that's there yeah and that does bring us to the Q&A segment of today's webinar if you've got a question for Phil or for Douglas do let us know get in touch by clicking the dark blue hand icon that's in the top right hand corner of your screen and if we run out of time on today's presentation and we probably won't because it's 11:36 we make sure we get back to your offline at any rate so let's take a look at the trusty old iPad we've got a few questions coming through right we've got an interesting question from Luciano I'm assuming that's how you pronounce it if it's Italian and it might be Luciano I'm sorry if it is but he's asking what is the date this law is effective from and is it retrospective or only prospective the new ACL from Emory came in and about twenty ten years it's been around a while ah yeah for a while yes and then some of the additions came in 26 years so I spoke about small business contracts held by unfair contract that only came in in 2016 and it was November 2 so almost three years from today yeah and I've heard quite a lot of cases with clients where I've said well doesn't this apply to me I said I'm sorry your contract was in 2015 so it doesn't apply that kid yeah it was my retrospectively alright it doesn't just doesn't say yeah yeah but you don't want to be you know skating on those dates you know try and get it right because the whole point is doing the right thing not tipping the bird also say back to Luciana was saying that the Trade Practices Act was in effect before the ACL so that would have applied to a lot of a behavior that occurred before the ACL but it's really the government's willingness and appetite to prosecute people and it's awesome law yes and I like what you're saying before about whether we just define something as void or if it's actually illegal yeah exactly because that will have a big impact on I will yes yes yeah thank you for your question Luciana and if we didn't answer it in the way you wanted to hear maybe send us another follow-up question and let us know which particular law you might have been referring to we've got a question that's coming through from James and he's asking what are the lot of the personal liabilities and directors under the ACL I might throw this one to you yeah that's where director is knowingly involved in the contravention now knowingly is pretty obvious and as in a small company a director would know now what's going on but in a larger organization director may not have his hands on the wheel and they not may not know what's going on so as ever it's important for directors and people involved in the management of the business to be very hands on and know what's going on in the company right so it's about and take steps to to all to conduct if it's if it's unacceptable being knowingly concerned and penalties I mean a director can be disqualified from managing a company if they're in breach of the misleading or deceptive conduct and unconscionable conduct provisions if they're knowingly concerned as Phil said so they can have damages fines against their personal assets so there are significant liabilities for a director on bacl yes which is probably what explains all the directors say oh I knew nothing of this put my house in my wife's name yes yes thank you for your question there James and again let us know if you've got a follow-up to that one rayleen's got a question here for us what if I sell secondhand goods am I still liable under the ACL doesn't mine throw this one to you yes yes you are so for example I spoke before about the guarantee of acceptable quality and free from defects that still applies to secondhand goods but it'll be taken into account the age and the price of the goods if you're selling a dress for ten dollars that's used it wouldn't be expected to the same quality as a dress in Maya for $200 also if a seller misrepresents that say for example a car is a new car when it's a used car that would be misleading representation as Phil discussed before so yes it does apply to you if you're a second-hand seller of goods it's actually a really good question I didn't think about that thank you very much for that raylene feel I've just got a question that came through from Thomas and it's pretty much what we were talking about before can I be liable for the actions of my staff members how well the company is primarily liable because it's the company that would employ them yes but once again if the director is knowingly can the oh yes comes back to this issue of knowing what's going on and what it's probably easy to control your employees in your sales agents so it says that if you you know if you have agents that are not employees of the company such as contractors or other companies that you need to work with them to get get it right you can't just assume that they've got their own governance and and they're doing the right thing by you so the bottom line train your staff and communicate with your agents or third parties about what's going on yes thank you for your question there Thomas and we've got another question here from Lisa Lisa is asking what if the manufacturer is really at fault what actions can a supplier take against the manufacturer does I think you were talking about that before yeah so important to emphasize the supplier is the one responsible for offering remedies under these trinkets you know if there's a consumer guarantee being breached the only exception to that is is there's one of those concurrent e's for goods that only applies the manufacturer and that is availability with spare parts and repairs but for all other consumer guarantees the supplier is responsible for providing a remedy the consumer can't can take action against the manufacturer directly we spoke of that before but what can a supplier do if the manufacturers default causes the supplier to have to compensate a consumer for example well in the a sale this supplier has a right of indemnity against the manufacturer which basically means if a supplier has suffered a loss or damage they can bring an action against the manufacturer to be compensated but as I said before a manufacturer doesn't offer remedies like repair or replacement or refund to a consumer that is the supplier but the supplier does have recourse against the manufacturer under the ACL I see so that's the difference between the two yeah thank you for that question Lisa we've got one other question that's come through it's from CJ and CJ is asking will these slides be available after the seminar to review yes absolutely for you yes these slides will be available in fact we'll send it to you as an email CJ so keep an eye on your inbox and that does bring us to the end of the Q&A session and for this program in general today Phillip in Douglas thank you very much for your time thank you thanks Daniel thanks I know it's been a very informative presentation and also you'll see a quick disclaimer come up on your screen today but please remember today's webinar is intended as a general guide only we encourage you to contact matthews for big lawyers if you'd like specific and tailored legal advice that's right for your business operations and of course before you go please complete the quick full question 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