A recent decision of the Queensland Supreme Court was interesting in the context of discussing the authorised use of substances which are later found to be damaging to the environment (or humans for that matter), something which has been fairly topical in respect of asbestos, engineered stone, amongst other things.
Consumers have a number of rights of termination in relation to unsolicited consumer agreements (arising from telemarketed sales, or door to door sales). An unsolicited consumer agreement is generally (with a number of exceptions) an agreement: For the supply of products or services to a consumer; Where the supplier or salesperson approaches the consumer without the consumer’s invitation; The negotiations for which take place over the telephone, or in person at a location other than the supplier’s premises. The concept is for an unsolicited agreement to be one where the direct contact is initiated by the seller. If the contact is initiated by the customer (eg by the customer responding to an advertisement or web page, phoning the business, or going to the showroom premises) then usually the resulting agreement would not be unsolicited. A critical aspect of this is that the consumer not “invited” the contact from the supplier. Sometimes suppliers contend that an agreement is not an unsolicited consumer agreement (as a result of which there are no cooling off rights) because they say that their contact was at the invitation of the consumer. This invitation might be artificially engineered in situations such as the following: A door to door salesperson attends a home uninvited and asks the home owner if they are interested in saving money by installing a solar PV system. When the home owner says yes, the salesperson says that he has to meet a colleague and will have to come back, would it be ok if they meet at (say) 5pm. if the owner has said yes, the seller might argue that the consumer invited the contact, as a result of which any agreement reached at the meeting is not an unsolicited consumer agreement; A telemarketer contacts a business offering a service. If there is any interest, the telemarketer arranges a Zoom or in person meeting for later that day, again, the supplier argues that any agreement arising from the meeting is not an unsolicited consumer agreement because the consumer invited the contact. Because of the contention that the agreement is not unsolicited, the supplier does not include in the contract the required warnings and cooling off provisions, as a result of which the consumer is unaware that they might apply or would have applied. Whether the suppliers would be correct in alleging that agreements reached in those situations are not unsolicited consumer agreements (and accordingly have no cooling off rights) is at least debateable. But the supplier’s argument would not exist if the arrangement was not made for a second meeting or call. Research is always advisable. For information on door to door and telemarketing sales, see https://www.accc.gov.au/consumers/buying-products-and-services/telemarketing-and-door-to-door-sales
On 16 May 2025, QCAT ordered a motor dealership to refund the entirety of the purchase price of a new vehicle which had been bought in June 2022 and “rejected” by the buyer in about January 2024 some 18 months afterward, because – having regard to the various defects in the vehicle – a reasonable consumer fully acquainted with the nature and effect of the failure would not have acquired the vehicle at the time of the supply. This finding had the result that the failure was a “major failure” under the Australian Consumer Law, which allows the rejection of the item if the rejection is within the “rejection period” under section 262 of the Australian Consumer Law. The rejection period for goods is the period from the time of supply within which it would be reasonable to expect the failure to comply with the consumer guarantee to become apparent having regard to the type of goods, the use to which they are likely to be put, the length of time for which it is reasonable for them to be used, and the amount of use that it is reasonable for them to be put before the failure becomes apparent. The Tribunal had regard to a decision of the Victorian Civil and Administrative Tribunal which considered that the warranty period was relevant when considering whether the rejection period had expired. In that matter, the Tribunal did not consider itself bound by the warranty period given under the manufacturers express warranty, but it is relevant evidence of “the expected period of largely problem free use of the goods”. In the case of this particular vehicle, the Tribunal considered that given: the Tribunal was satisfied that the rejection of the vehicle in 2024 was made well within the rejection period. The consequence of a valid rejection is an entitlement on the part the applicant for a refund of any money paid for the goods, or the entitlement to the replacement the goods with goods of the same type and of similar value if they are readily available. In this particular case, the respondent was unable to provide a replacement value of the same type and of a similar value, and the Applicant did not want another vehicle of the same make. The Tribunal ordered the repayment of the purchase price, together with the payment of the filing fee, see Stevens v James Frizelles Automatic Group t/as Sunshine Kia [2025] QCAT 196 The decision demonstrates the further reach of consumer rights in relation to goods, which now can have to result that goods can be rejected after quite a lot of use if there is multiple issues over a period of time, such that a reasonable consumer would not have bought them. For advice in respect of consumer law matters, please contact Peter Muller at peterm@qbmlaw.com.au
Back in 2014, QBM Lawyers successfully applied to dismiss proceedings claiming the clawback (repayment) of over $1M in leasing incentives which were claimed to be repayable because of the termination of the lease. This was in the matter of GWC Property Group Pty Ltd v Higginson [2014] QSC 264 (“the GWC Decision”). Common kinds of lease incentives are rental discounts, or fitout contributions. The GWC Decision was and remains significant because clawback provisions in incentive deeds (or in the lease itself) are frequently used by landlords to attempt to recover incentives paid, and the decision made it clear that at least in some circumstances – and depending upon the effect of the clawback provision – the obligation would be void and unenforceable as what is known in legal terms to be a “penalty”. The GWC Decision has been referred to in a number of subsequent court decisions in courts and Tribunals in Queensland and other states. In 2023, the Queensland Supreme Court in the matter of BMG SP Pty Ltd v YFG Strathton Pty Ltd [2023] QSC 52 held that the obligation to repay a proportion of the fitout contribution was unenforceable as penalties, with the result that the Plaintiff’s claim in those proceedings of $993,607.29 were not recoverable. The decision relied substantially upon the reasoning of Her Honour Justice Dalton in the GWC Decision. The fact that an obligation is unenforceable because it is a penalty does not necessarily mean however that the lessor is left without any remedy at all. Even if a lease incentive could not be claimed back because it would be a penalty, the lessor in many cases can still sue the lessee and guarantors for damages for the breach or termination of the lease if that is the event that gave rise to the obligation to pay the incentive. In the GWC proceedings, the lessor was left with no remedy at all because the lease did not have guarantors (whereas the incentive deed did) and the tenant was in liquidation. Those circumstances however were usual. In most cases, the inability to claim the clawback of lease incentives if they were a penalty would still leave the landlord with remedies against the tenant and any guarantors for its losses consequent upon the breach of the lease. For advice in relation to leasing and lease disputes, please contact Peter Muller at peterm@qbmlaw.com.au and Jessica Murray at jessicam@qbmlaw.com
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