Response to post 346.
There are instances where failing to disclose who the actual owner is could amount to deceptive conduct sufficient to invalidate the contract, but, normally, only if the deception gives rise to an actual, as distinct to a perceived detriment.
Iโll use a couple examples to illustrate the point.
I buy an item, and at the time of purchase the listing leads me to believe that Iโm buying the item from a business located in Australia, only to find out later that both the seller and item are located in China. In this case I would have little difficulty in convincing a court that the contract is rendered void. Void not because I was deceived. Void because the deception gave rise to an actual detriment, in that, not only would I now have to go the added expense of having the item inspected to ensure itโs Australian Standards compliant, but also should something go wrong, my item would not be covered under Australian Consumer protection legislation(TPA, FTA, SoGA etc).
As another example, a friend of mine recently purchased a second hand car, and at the time of purchase was lead to believe they were buying it from a licensed dealer, and therefore the car was subject a 2 month statutory warranty. Then one month later something went wrong, a something that would have been covered under the warrant, but a warranty repair was refused on the basis that this was a private sale. The matter went to court with a finding that the circumstances under which the car was sold were designed to mislead the buyer into believing they were covered under warranty when in fact they were not, with the detriment arising being a $3000 repair bill. As such due to the detriment arising out of the deception the contract was rendered void.
However, if the same problem had occurred after the warranty had expired then the contract would have not been rendered invalid, because, though the deception continues to exist the detriment doesnโt. That is, the only detriment arising out of the deception was the car was not covered under warranty.. Therefore if the same problem had occurred 2 months and one day after the date of purchase then, irrespective if they had purchased the car from a licensed dealer or a private individual the outcome would have been the same. That is, in both cases they would have been up for the repair costs, which is one of the risks you accept when you buy a second hand car.
Now if one looks at the OPโs situation in light of the principles illustrated above, if the conduct could be reasonably said to fall within the definition of deceptive conduct (and Iโm of the view that it doesnโt) then there is simply no detriment arising. No detriment because there is no indication in the listing that this was anything other than a private sale. So the OP was not mislead into believing they would be covered under either the TPA of FTA if something went wrong, but as it was a private sale they would still be covered by the SoGA irrespective if it had been listed by the actual owner or his brother.
Secondly the listing makes it plain the item is second hand but asserted to be good (excellent condition), and there is absolutely not one shred of evidence to the contrary. Therefore the only detriment the OP is asserting is a perception of a potential increased risk. But hang on, as previously stated, if something actually went wrong, they still had redress under the fit for the purpose test provisions of the SoGA, and that redress exists irrespective of whether the item is new or second hand, purchased from an individual or a business, or purchased from the owner direct or their agent. That is the perceived increase in risk didnโt/doesnโt give rise to an actual increase in risk.
In conclusion what this Op is doing is cherry picking those legal principles which support their line of reasoning and discard those that donโt, and irrespective of the quality of the argument to the contrary they will continue to do so.
