The Exclusion of Consumer Rights in e-Auctions – Is an e-Auction Really an Auction at all?
This paper considers the exclusion of consumer rights by the New Zealand Consumer Guarantees Act 1993 in eauctions. The paper asserts that the absence of an individual auctioneer conducting each e-auction means that e-auctions may not be auctions at all. The paper also questions the justification for excluding consumer rights in e-auctions because the rationale for excluding consumer rights in traditional auctions does not fit with e-auctions due to the significant differences in the sale processes. The paper recommends reform by way of statutory amendment.
[1] s.41(3)(a) CGA
[2] i.e. suppliers acting "in trade" as defined in s.2 CGA
[3] Consumer Magazine contribution to Sunday Star Times article, "How to
Avoid Bidding Goodbye to Your Rights", 8 November 2009, page A8;
Motor Vehicle Disputes Tribunal decisions MVD 019/07 (AK) (2007)
NZMVDT 44 (23 March 2007) at p.5 and MVD 93/2008 (AK) (2008)
NZMVDT 92 (30 May 2008) at p.4
[4] See: Dr Kanchana Kariyawasam, "Legal Issues and Challenges in
Online Shopping: A Comparative Analysis of Australia and New
Zealand", (2009) 15 NZBLQ 178 at page 191 and Simpson Grierson-s x
-tech group, "A Guide to E-Commerce Law in New Zealand" Brookers
Ltd 2002, p 316.
[5] s.56 Sale of Goods Act 1908
[6] s.43 CGA
[7] Available at: www.ebay.com.au. See: clause 3 of the User Agreement.
[8] Ibid
[9] Available at: www.trademe.co.nz. See: clause 2.1
[10] s.2 Auctioneers Act 1928
[11] S.41(3)CGA
[12] MVD 93/2008 (AK) (2008) NZMVDT 92 (30 May 2008) at p.4; see
also MVD 019/07 (AK) (2007) NZMVDT 44 (23 March 2007) at p.5
[13] (1997) DCR 92, decision upheld by the High Court in Hammer
Auctions NZ Ltd v Williams HC 148/96 Auckland 10 April 1997 Morris
J
[14] Consumer Magazine contribution to Sunday Star Times article, "How to
Avoid Bidding Goodbye to Your Rights", 8 November 2009, page A8
[15] Ministry of Economic Development, Auctioneers Act Review:
Discussion Document, Wellington 2000 - available at med.govt.nz
[16] Ibid page 2
[17] Simpson Grierson-s x-tech group, "A Guide to E-Commerce in New
Zealand", Brookers Ltd, 2002 at page 317
[18] Dr Kanchana Kariyawasam, "Legal Issues and Challenges in Online
Shopping: A Comparative Analysis of Australia and New Zealand",
(2009) 15 NZBLQ 178 at page 191
[19] The definition of "sales by auction" in s 2 of the Motor Vehicle Sales
Act 2003, "has the same meaning given to it by section 2 of the
Auctioneers Act 1928".
[20] s.2 Auctioneers Act 1928
[21] Simpson Grierson-s x-tech group, "A Guide to E-Commerce Law in
New Zealand", Brookers Ltd, 2002, p 317; New Zealand Law
Commission Report 58, "Electronic Commerce - Part Two - A Basic
Legal Framework" Nov 1999, at pages 14, 43-45
[22] Dr Kanchana Kariyawasam, "Legal Issues and Challenges in Online
Shopping: A Comparative Analysis of Austaralia and New Zealand,
(2009) 15 NZBLQ 178 at page 192
[23] B.W. Harvey and Franklin Meisel, Oxford University Press, 2006 at
page 23
[24] Available at http:/www.lexinexis.com/nz/legal
[25] "Oxford Dictionary of Law" (3rd Ed). Oxford University Press, 1994, at
page 32
[26] Maltby v Christie (1795) 1 Esp 340; 170 ER 378 and Skyway Service
Station Ltd v McDonald (1986) 1 NZLR 366
[27] Payne v Cave (1789)2 TR 148
[28] s.59(2) of The Sale of Goods Act 1908 states, "A sale by auction is
complete when the auctioneer announces its completion by the fall of the
hammer, or in other customary manner: until such announcement is
made any bidder may retract his bid."
[29] (2000) 1 WLR 1962 (CA) discussed in Hawes, "Butterworths
Introduction to Commercial Law" (2nd Ed) at p339 and see also:
Warlow v Harrison (1859) 120 ER 920
[30] (2007) NSWSC 844 (3 August 2007)
[31] Ibid at para 35
[32] Ibid at para 39
[33] (1893) 1QB 256
[34] Para4.2 (k). Trade Me, "Terms and Conditions" available at
www.trademe.co.nz
[35] See above footnote 17 and 18
[36] (2002) 18 JCL 75 at p.87
[37] See: ACCC, "Internet auctions: what you should know before you bid or
sell",http://www.accc.gov.au/pubs/Publications/Business_general/Ecom
merce/internet_auctions.pdf
[38] (2002) 18 JCL 75 at p84
[39] Section 70 and 71 Australian Trade Practices Act 1974
[40] S.41(3) CGA
[41] R.M. Goode, "Commercial Law", (4th Ed, edited and fully revised by
Ewan McKendrick) LexisNexis and Penguin Books Ltd 2009, at page
358
[42] S.43 CGA
[43] Consumer Magazine contribution to Sunday Star Times article, "How to
Avoid Bidding Goodbye to Your Rights", 8 November 2009, page A8
[44] See: Speech made by Hon Heather Roy 30 November 2009
http://www.beehive.govt.nz/speech/039one+law+-
+one+door039+consumer+transactions+1
[1] s.41(3)(a) CGA
[2] i.e. suppliers acting "in trade" as defined in s.2 CGA
[3] Consumer Magazine contribution to Sunday Star Times article, "How to
Avoid Bidding Goodbye to Your Rights", 8 November 2009, page A8;
Motor Vehicle Disputes Tribunal decisions MVD 019/07 (AK) (2007)
NZMVDT 44 (23 March 2007) at p.5 and MVD 93/2008 (AK) (2008)
NZMVDT 92 (30 May 2008) at p.4
[4] See: Dr Kanchana Kariyawasam, "Legal Issues and Challenges in
Online Shopping: A Comparative Analysis of Australia and New
Zealand", (2009) 15 NZBLQ 178 at page 191 and Simpson Grierson-s x
-tech group, "A Guide to E-Commerce Law in New Zealand" Brookers
Ltd 2002, p 316.
[5] s.56 Sale of Goods Act 1908
[6] s.43 CGA
[7] Available at: www.ebay.com.au. See: clause 3 of the User Agreement.
[8] Ibid
[9] Available at: www.trademe.co.nz. See: clause 2.1
[10] s.2 Auctioneers Act 1928
[11] S.41(3)CGA
[12] MVD 93/2008 (AK) (2008) NZMVDT 92 (30 May 2008) at p.4; see
also MVD 019/07 (AK) (2007) NZMVDT 44 (23 March 2007) at p.5
[13] (1997) DCR 92, decision upheld by the High Court in Hammer
Auctions NZ Ltd v Williams HC 148/96 Auckland 10 April 1997 Morris
J
[14] Consumer Magazine contribution to Sunday Star Times article, "How to
Avoid Bidding Goodbye to Your Rights", 8 November 2009, page A8
[15] Ministry of Economic Development, Auctioneers Act Review:
Discussion Document, Wellington 2000 - available at med.govt.nz
[16] Ibid page 2
[17] Simpson Grierson-s x-tech group, "A Guide to E-Commerce in New
Zealand", Brookers Ltd, 2002 at page 317
[18] Dr Kanchana Kariyawasam, "Legal Issues and Challenges in Online
Shopping: A Comparative Analysis of Australia and New Zealand",
(2009) 15 NZBLQ 178 at page 191
[19] The definition of "sales by auction" in s 2 of the Motor Vehicle Sales
Act 2003, "has the same meaning given to it by section 2 of the
Auctioneers Act 1928".
[20] s.2 Auctioneers Act 1928
[21] Simpson Grierson-s x-tech group, "A Guide to E-Commerce Law in
New Zealand", Brookers Ltd, 2002, p 317; New Zealand Law
Commission Report 58, "Electronic Commerce - Part Two - A Basic
Legal Framework" Nov 1999, at pages 14, 43-45
[22] Dr Kanchana Kariyawasam, "Legal Issues and Challenges in Online
Shopping: A Comparative Analysis of Austaralia and New Zealand,
(2009) 15 NZBLQ 178 at page 192
[23] B.W. Harvey and Franklin Meisel, Oxford University Press, 2006 at
page 23
[24] Available at http:/www.lexinexis.com/nz/legal
[25] "Oxford Dictionary of Law" (3rd Ed). Oxford University Press, 1994, at
page 32
[26] Maltby v Christie (1795) 1 Esp 340; 170 ER 378 and Skyway Service
Station Ltd v McDonald (1986) 1 NZLR 366
[27] Payne v Cave (1789)2 TR 148
[28] s.59(2) of The Sale of Goods Act 1908 states, "A sale by auction is
complete when the auctioneer announces its completion by the fall of the
hammer, or in other customary manner: until such announcement is
made any bidder may retract his bid."
[29] (2000) 1 WLR 1962 (CA) discussed in Hawes, "Butterworths
Introduction to Commercial Law" (2nd Ed) at p339 and see also:
Warlow v Harrison (1859) 120 ER 920
[30] (2007) NSWSC 844 (3 August 2007)
[31] Ibid at para 35
[32] Ibid at para 39
[33] (1893) 1QB 256
[34] Para4.2 (k). Trade Me, "Terms and Conditions" available at
www.trademe.co.nz
[35] See above footnote 17 and 18
[36] (2002) 18 JCL 75 at p.87
[37] See: ACCC, "Internet auctions: what you should know before you bid or
sell",http://www.accc.gov.au/pubs/Publications/Business_general/Ecom
merce/internet_auctions.pdf
[38] (2002) 18 JCL 75 at p84
[39] Section 70 and 71 Australian Trade Practices Act 1974
[40] S.41(3) CGA
[41] R.M. Goode, "Commercial Law", (4th Ed, edited and fully revised by
Ewan McKendrick) LexisNexis and Penguin Books Ltd 2009, at page
358
[42] S.43 CGA
[43] Consumer Magazine contribution to Sunday Star Times article, "How to
Avoid Bidding Goodbye to Your Rights", 8 November 2009, page A8
[44] See: Speech made by Hon Heather Roy 30 November 2009
http://www.beehive.govt.nz/speech/039one+law+-
+one+door039+consumer+transactions+1
@article{"International Journal of Business, Human and Social Sciences:56996", author = "Trish O'Sullivan", title = "The Exclusion of Consumer Rights in e-Auctions – Is an e-Auction Really an Auction at all?", abstract = "This paper considers the exclusion of consumer rights by the New Zealand Consumer Guarantees Act 1993 in eauctions. The paper asserts that the absence of an individual auctioneer conducting each e-auction means that e-auctions may not be auctions at all. The paper also questions the justification for excluding consumer rights in e-auctions because the rationale for excluding consumer rights in traditional auctions does not fit with e-auctions due to the significant differences in the sale processes. The paper recommends reform by way of statutory amendment.
", keywords = "auction, auctioneer, consumer rights, e-auction.", volume = "4", number = "6", pages = "1041-6", }
