The Exclusion of Consumer Rights in e-Auctions – Is an e-Auction Really an Auction at all?

Authors: Trish O'Sullivan

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.

Digital Object Identifier (DOI): doi.org/10.5281/zenodo.1334660

References:

[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