Private sale of your house, not subject to ACL

ACL – No consumer protection against non traders

The Australian Consumer Law (ACL) is the national law for fair trading and consumer protection. The ACL commenced on 1 January 2011 and is a cooperative reform of the Australian Government and the States and Territories through the Legislative and Governance Forum on Consumer Affairs (CAF). The ACL is administered and enforced jointly by the Australian Competition and Consumer Commission (ACCC) and the State and Territory consumer protection agencies, with the involvement of the Australian Securities and Investments Commission (ASIC) on relevant matters. This website contains information about the ACL and its enforcement, the CAF and consumer policy in Australia more generally. The full text of the ACL is set out in the Competition and Consumer Act 2010 (Comm) ( which replaced the Trade Practices Act) https://www.legislation.gov.au/Details/C2015C00327

ACL  – Chapter 2—General protections, Part 2‑1—Misleading or deceptive conduct, Section 18  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.

Court Decision

On 29 June 2015, the NSW Court of Appeal delivered judgement in Williams v Pisano [2015] NSWCA 177, which considered the application of section 18 and section 30 of Australian Consumer Law, specifically the phrase “trade or commerce” and whether or not the sale of real property by a non trader amounts to the “trade or commerce” element of the provision.  The court found that the sale must bear a trading or commercial character to be applied to these provisions, narrowing the scope of section 18 and section 30. The sale of a house does not constitute conduct in trade or commerce

Comment

The purpose and effect of the consumer protection laws in the ACL is to protect consumers from traders (persons engaging in trade or commerce).  A sale of your house, which is a personal (not commercial transaction) is not caught by the ACL, even if the price is in the millions.  Of course a Real Estate Agent may still be caught by the ACL for misleading or deceptive conduct. see the recent case of  Makings Custodian a decision of the Qld Supreme Court , https://www.sclqld.org.au/caselaw/QSC/2017/080

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