Question One (worth 25%)

John, Paul, George and Bingo were musicians in a band called the Beagles.

In July 2021, John searched online for a new a new microphone. After searching for about 10 minutes he saw one advertised by a company called Sound Check Pty Ltd (Sound Check). The microphone was the popular Sonic Blaster 2021 (Sonic Blaster), which was released in January 2021.

It was exactly what he wanted and the price was almost too good to be true.

The online advertisement read:

'On sale this week - The Sonic Blaster 2021. Was $1100/Now $100. No online delivery. Pay now and collect your microphone from one of our stores near you.'

On page 4 of the online terms and conditions there was a disclaimer which read:

'The Sonic Blaster 2021 is available in all of our stores across Australia while stocks last. The reference to the 'Was/$1100' price of the Sonic Blaster 2021 is a reference to the recommended retail price. Please note that our stores have sold the Sonic Blaster 2021 at prices below the recommended retail price from time to time.

John never read the terms and conditions, which were located via a link at the bottom of the webpage. He made an online order and paid the $100.

The next day, John visited the nearest Sound Check store in Mosman and asked for the microphone that he purchased. The assistant manager of the store Brian informed John that:

'I am sorry that you drove all the way from Strathfield, but the owner of the store only ordered a hand-full of Sonic Blasters this week and they are all sold out. Normally we sell stacks of these, but there is a rumor that a new version of the Sonic Blaster will be out soon. Do you want to wait for the new version [i.e. the Sonic Blaster 2021 Plus]? I am told it will be available next month at the latest. You will have to pay a little more, but I think you will be pleased.'

John did not want to wait, but Brian managed to persuade John to hold off until the Sonic Blaster 2021 Plus arrives.

Three months pass, and after repeated emails and phone calls to Sound Check in Mosman and their call centre, it was clear to John that the new version of the Sonic Blaster was not going to be available anytime soon. John made an online complaint to the Australian Competition and Consumer Commission.

One day Paul visited his favourite music store called Gee Bees Guitars (Gee Bees). Near a stand was a classic Fender Bass (Bass), which caught his eye. The sign near to the Bass read 'only $200', but the price tag read '$2,200'. The sign also read:

'Brand New. Australian Made. All materials and components are of the highest quality. Built to last. Best value.'

Paul took the Bass to the counter and he was served by the store owner Barry. Paul asked about the price difference between the tag and the sign. Barry responded that the difference in price was clearly mistake and the real price is $2,200 plus GST. Barry added:

'This model of Bass is known to have some problems with rattling. There is no manufacturer's warranty on this one, nor is there any refund. Do you want to take out an extended warranty for 2 years for only $150?'

Paul reluctantly paid $2,420 for the Bass, but declined on the offer to take out an extended warranty.

Within the first week, the Bass started to make a rattling sound. Paul was surprised to soon discover that the pick-ups for the Bass were not in good condition.

Paul took the Bass back to Gee Bees and demanded a refund. Barry replied:

'I am not responsible for the quality of the Bass. I am only passing on information from the manufacturer. The Bass was working before it left the store. It was only a demonstration model for less than a year.

Look, as I have already told you before you purchased the Bass that there are no refunds. There is nothing I can do about this. I can give you a replacement if you wish, but you will have to wait a month until I order one from the manufacturer in Japan.'

Paul made an online complaint to the Australian Competition and Consumer Commission.

Questions

1. Advise John whether Sound Check has contravened any of the provisions of Australian Consumer Law (ACL) in relation to his circumstances? (10 marks)

1. Advise Paul whether Gee Bees has contravened any of the provisions of the ACL in relation to his circumstances? (15 marks).

Question Two (worth 25%)

John, Paul, George and Bingo were musicians in a band called the Beagles.

One day, George wanted to rent an electric guitar. The only problem was that he was unsure whether he wanted to use the guitar for his upcoming tour in 6 months, or simply use it to 'jam' on at home.

George visited his favourite music store CC Music Factory Pty Ltd (Music Factory) and saw a classic Gibson guitar (Gibson) in the corner of the store. He walked over to the guitar and saw a tag, which said 'This guitar is for yearly rent only'. George walked over to the counter and spoke to Murray. George said to Murray: 'I want to rent this guitar for 6 months'. In response, Murray said: 'the guitar is only available for rent for 12 months.' George reluctantly agreed. Murray provided George with the following terms of rent that were located on page 6 of the Rental Agreement in small font:

Standard Terms of Rent

1. The rental fee for the Gibson is $100 per month.

2. You must sign up to a rental contract for at least 12 months.

3. You must pay upfront a minimum of $1,200 rental amount for the Gibson, regardless of whether you return the Gibson before the end of the 12 months.

4. You must pay upfront a further deposit of $2,000 in case you cause damage the Gibson and/or its case during rental.

5. If you damage the Gibson while it is rented, you must pay all fees for repair or replacement, and forfeit your $2,000 deposit, regardless of whether the cost of repair or replacement is less than $2,000.

6. Music Factory can vary any term in this contract at any time without notification, and may cancel the agreement at any time without prior notification.

7. You may cancel your rental at any time, provided that you give Music Factory 30 days' notice in writing and pay a cancellation fee of $1,200.

8. You are fully responsible and liable for damages under any circumstances where the guitar and/or its case are unsecured. In such circumstances, you are responsible to pay Music Factory a fixed amount of $5,000 in damages for the loss of the Gibson.

9. You must return the Gibson in its original case, as given to you. If you fail to return the Gibson in its original case, you will forfeit your $2,000, and pay a further $500 for inconvenience to the Store.

George never read the terms of the Rental Agreement and none of them were brought to his attention. He paid the upfront $1,200 rental fee, plus the $2,000 deposit. George took the Gibson home in its case. Three weeks later, George lost the case for the Gibson when he was at a party at John's house. A week later, the Gibson was stolen at a park where George went with John, Paul and Bingo for a picnic. George left the Gibson under a tree while he went for a quick ride on the flying fox [an awesome ride for kids]. When he returned 6 minute later, he noticed that the guitar was gone.

One evening Bingo stayed in his luxury apartment in Sydney to watch a television program on 60 Minutes. The program was of particular interest to Bingo as Liz Hayes was interviewing one of his favourite drummers, Bazza Gibbo (Gibbo). Gibbo was in the famous American band call SSIK, which just finished its tour in Australia. The interview was broadcasted live to 50 countries around the world and filmed in the United States where Gibbo lived.

During the interview, Gibbo (to the shock of his fans and Bingo) made an announcement that he was going to retire from being the drummer of SSIK. Gibbo said that he was recently diagnosed with brain cancer and 'things are not looking good.' Gibbo said that upon discovering that he had brain cancer, he set up an online app, called 'Save Gibbo'. During the interview, Gibbo repeatedly asked fans to go to his Save Gibbo App and donate $10, which will go to the Cancer Foundation. Gibbo also asked fans to donate an extra $5 to a young boy named Robbo, who was a friend he met at hospital, who also had brain cancer. With a tear in his eye, Gibbo showed to the camera a photo of Robbo in hospital.

Gibbo also encouraged fans to sign up to an online lifetime membership for SSIK. The membership only costs $300. Each member will receive a free Gibbo sticker and regular updates about SSIK and in particularly about his medical condition. Gibbo also said that members can make money for 'just being fans of SSIK'. Liz asked him how this works. Gibbo replied:

'This is simple and fun. Each member will be allocated a unique user ID and be placed in a position in the hierarchy of SSIK members. If that member introduces another 5 people to become members, than that person can move up the hierarchy. Once you reach the top of the hierarchy, your $300 is returned and SSIK will transfer to you another $300 for being such a loyal fan. You may also win a free trip around the world. How exciting is that? I am also asking members that if they wish, they can run their own business as a distributor to sell SSIK merchandise. Any member who wishes to do this and emails a list of 50 prospective customers within the first month of establishment will receive a 50% rebate on all purchases.'

Bingo transferred $10,000 to the Save the Gibbo App for the 'Cancer Foundation' and another $50,000 for 'Robbo'. Bingo also sent a private message to Gibbo simply saying: 'Never give up. Keep rocking forever'.

One year later, a personal assistant of Gibbo (named Gobbo) went on 60 Minutes for an interview. During the interview, he revealed that Gibbo was a fraud. He was never diagnosed with cancer and only donated only a small portion of the money he received to the Cancer Foundation. No money was ever given to Robbo. In fact, Robbo was never diagnosed with brain cancer, but the photo was taken when he was in hospital to have his COVID vaccination.

Questions

1. Advise George whether Music Factory non-complied with any of the provisions of ACL in relation to his circumstances? (10 marks)

1. Advise Bingo whether Gibbo contravened any of the provisions of ACL, and any arguments that Gibbo may make in his defence? (15 marks)

Rubic Marking Criteria

Criteria	Standards
	HD	Distinction	Credit	Pass	Fail
Identify core legal issues	All core legal issues are accurately and comprehensively identified.	Almost all core legal issues identified clearly and accurately and fairly comprehensively.	Some detailed and correct core legal issues identified.	Some core legal issues not correctly identified or not clear.	Core legal issues are not correctly identified or not identified at all.
Apply relevant case-law to the facts to analyse/solve the problem/issues	Thorough application of case-law to analyse/solve the problem/issue and extensive explanation.	Clear application of case-law to analyse/solve the problem with appropriate explanation.	Applies case-law mostly appropriately to analyse/solve the problem and explains why.	Attempts to apply case-law to analyse/solve the problem; case-law not always appropriate and/or some explanation given.	Does not attempt to apply case-law or applies the law incorrectly; little or no explanation why.
Construct and critically analyse arguments	Student has constructed one or more arguments that are sophisticated in the command, synthesis and adaption of complex and diverse content	Student has constructed one or more arguments that are sophisticated in the command, synthesis and adaption of complex and diverse content	Student has identified the core legal issues and has developed one or more arguments some of which are well supported by the relevant primary sources and some which are not.	Student has identified the core legal issues and has developed one or more arguments but has not robustly supported their work by sufficiently engaging with the relevant primary sources.	Student has not presented arguments that are supported by sufficient authority. The work is mostly descriptive and demonstrates little command of the salient issues. The student has neglected to sufficiently identify the core legal issues.
Legal writing skills	The paper is consistently well constructed. Referencing consistently follows AGLC style, with no errors. Beautifully written. Impeccable grammar, spelling and punctuation	The essay is generally well constructed with clear paragraphs. Well written. Excellent grammar, spelling and punctuation. Referencing generally follows AGLC style, with minimal minor errors only. .	The paper is mostly well constructed; paragraphs may include some information varying from the topic sentence. Referencing mostly follows AGLC style, with some minor errors only. Fairly well written. Few errors in grammar, spelling, and punctuation.	Attempts to structure the paper, however, information in paragraphs may vary from the topic sentence. AGLC style used inconsistently, with some major errors including some key information missing from the citation. Writing requires some improvement. Errors in grammar, spelling and punctuation	The paper is disorganised; paragraphs have no clear point and/or structure. References not according to AGLC style, with frequent errors. Poorly written. Frequent errors in grammar, spelling and punctuation.