Unfair terms in residential land contracts : will the Australian consumer law improve a buyer’s bargaining position?

The prohibition on unfair contract terms in standard form consumer contracts has the potential to significantly impact on the terms of contracts for the sale of land. The definition of ‘consumer contract’ includes contracts for the sale or grant of an interest in land to an individual wholly or predominantly for personal or domestic use. Therefore, a contract for the purchase of a residence for personal occupation by the buyer, as opposed to a purchase for investment purposes, will be a consumer contract potentially attracting the application of the unfair terms provisions. Significant consumer protection mechanisms already exist in most state jurisdictions requiring disclosure of relevant matters to the buyer and providing remedies for the provision of misleading conduct. Minimal evidence of unfair terms in land contract was presented to the Productivity Commission Inquiry into the Australian Consumer Policy Framework raising the question as to whether there is an identified problem of unfair terms in real estate contracts and if so, whether the same economic and ethical rationales justify regulatory intervention. This article examines what effect if any the introduction of the unfair contract provisions will have on the enforcement of residential land contracts and the viability of previously accepted conditions if challenged as being “unfair terms”. The article concludes that despite the existence of several potentially unfair terms in some land contracts, the intervention of the rules of equity to overcome perceived hardship or unfairness to buyers from strict enforcement of terms means the unfair terms provisions are only likely to operate on terms untouched by those principles. In the authors’ view the scope for operation of the unfair terms provisions will be limited to terms untouched by the principles of equity and consumer protection legislation making it unlikely that there will be any significant realignment of the contractual obligations and rights of buyers and sellers of land.

Learning domain-specific sentiment lexicons for predicting product sales

Generic sentiment lexicons have been widely used for sentiment analysis these days. However, manually constructing sentiment lexicons is very time-consuming and it may not be feasible for certain application domains where annotation expertise is not available. One contribution of this paper is the development of a statistical learning based computational method for the automatic construction of domain-specific sentiment lexicons to enhance cross-domain sentiment analysis. Our initial experiments show that the proposed methodology can automatically generate domain-specific sentiment lexicons which contribute to improve the effectiveness of opinion retrieval at the document level. Another contribution of our work is that we show the feasibility of applying the sentiment metric derived based on the automatically constructed sentiment lexicons to predict product sales of certain product categories. Our research contributes to the development of more effective sentiment analysis system to extract business intelligence from numerous opinionated expressions posted to the Web

Interactive product browsing and configuration using remote augmented reality sales services

Real-time remote sales assistance is an underdeveloped component of online sales services. Solutions involving web page text chat, telephony and video support prove problematic when seeking to remotely guide customers in their sales processes, especially with configurations of physically complex artefacts. Recently, there has been great interest in the application of virtual worlds and augmented reality to create synthetic environments for remote sales of physical artefacts. However, there is a lack of analysis and development of appropriate software services to support these processes. We extend our previous work with the detailed design of configuration context services to support the management of an interactive sales session using augmented reality. We detail the context and configuration services required, presenting a novel data service streaming configuration information to the vendor for business analytics. We expect that a fully implemented configuration management service, based on our design, will improve the remote sales experience for both customers and vendors alike via analysis of the streamed information.

"Fair" government contracts for community service provision : time to curb unfettered executive freedom?

All Australian governments are significantly increasing the use of contracted community service provision through not for profit (NFP) organisations. These transactions occur through grant arrangements which take the form of standard contracts or deeds rather than drawing on statutory authority. Government inquiries bodies have consistently reported and raised concerns about the fairness of such standard grant contract terms, but failed to provide any mechanism whereby fairness can be assured. The Productivity Commission has suggested that the resulting poor relationship results in inappropriate risk transfer, micro-management, disincentives to innovate and poor service provision. This paper develops and tests a fairness measure based on the principles of the Australian Consumer Law which legislates fairness protections for standard consumer contracts.  

Exploring governance issues on collaborative contracts in the construction industry

This paper reports the findings of an in-depth literature review, which was designed as the first phase of a study that ultimately aims to rank the importance of key governance mechanisms on collaborative construction projects, in terms of impact on value-for-money. The absence of such information in the global knowledge base has prompted the current study. Seminal research completed recently concluded that deductive evidence with regard to the performance outcomes of collaborative procurement mechanisms is currently limited (Eriksson and Westerberg 2011). The authors aim to address this gap in current understanding. The literature review identifies key features of both formal and informal mechanisms which have been applied within collaborative contracting contexts. The literature review lays a solid foundation for designing a deductive research strategy to be implemented in the second phase of the study, which will employ a large-scale quantitative survey to shed light on the governance structures of collaborative contracts, and the ways in which they impact on realisation of VfM during project delivery in the Australian infrastructure industry. The current paper aims to identify the main categories of formal and informal governance mechanisms currently being employed globally. This will provide structure for the development of the survey in the second phase of the study.

Asset specificity and behavioral uncertainty as moderators of the sales growth-employment growth relationship in emerging ventures

New venture growth is a central topic in entrepreneurship research. Although sales growth is emerging as the most commonly used measure of growth for emerging ventures, employment growth has also been used frequently. However, empirical research demonstrates that there are only very low to moderately sized correlations between the two (Delmar et aL, 2003; Weinzimmer, et al., 1998). In addition) sales growth and employment growth respond differently to a wide variety of criteria (Baum et al., 2001; Delmar et al., 2003). In this study we use transaction cost economics (Williamson, 1996) as a theoretical base to examine transaction cost influences on the addition of new employees as emerging ventures experience sales growth. \\le theorize that transaction cost economics variables will moderate the relationship between sales growth and employment growth. W'e develop and test hypotheses related to asset specificity, behavioral uncertainty, and the influence of resource munificence on the strength of the sales growth/ employment growth relationship. Asset specificity is theorized to be a positive moderator of the relationship between sales growth and employment growth. When the behavioral uncertainty associated with adding new employees is greater than that of outsourcing or subcontracting, it is hypothesized to be a negative moderator of the sales growth/employment growth relationship. We also hypothesize that resource scarcity will strengthen those relationships.

Do we need to use an accountant? The sales growth and survival benefits to family SMEs

This article explores the relationship between the usage of an external accountant and family firm sales growth and survival. Using a longitudinal panel of Australian small and medium sized family enterprises, we find that external accountants have a positive impact on sales growth and survival. We also find that the degree to which the accountant is acquainted with the family and the firm’s needs, which we term as embeddedness, moderates these positive outcomes. Furthermore, we find that appropriate strategic planning processes are necessary to maximize the sales growth benefit; however, these processes are not necessary to gain the survival benefit.

Contracts

Contracting essentially involves an agreement between two parties in relation to a particular matter. When defined in this way, contracting has been occurring as a social practice since humans first bartered and conducted trade, and should be understood as both an economic as well as a social transaction. This entry explains key aspects of the sociology While contracting is commonly understood to be a market based transaction, Polyani famously argued that for most of recorded history commercial transactions were in fact secondary to social relationships. In other words, whenever economic transactions occurred, they were always in the context of reciprocal social relationships. Historically the primary mode of exchange may well have been based on social exchange and reciprocity, however with the rise of extensive industrialization in the 18th Century, the primary mode of exchange has led to more of a market based mode of exchange in developed countries, with the focus more about the economic transaction. As an agreement between two entities, contracting is an essential element to economic systems as it is the basis of most transactions, whether the agreement is verbal or written, explicit or implied. Contracting is thus a pervasive activity in our society, particularly between organizations, although individuals also engage in contracting. Typically, when discussing contracting, authors have either focused on the nature of the agreement itself, or on the governance arrangements in place to carry out the agreement.

The need for legislative reform of the privity doctrine in commercial contracts in Malaysia : a comparative analysis

This thesis commences with the proposition that the first limb of the doctrine of privity causes injustice to third party beneficiaries in Malaysia, particularly in commercial contracts. The doctrine of privity has been the subject of criticism by the judiciary and academic commentators in common law jurisdictions, mainly directed at the first limb of the doctrine, whereby only parties to a contract can sue and be sued. The first limb prevents a third party from enforcing benefits conferred on them by those contracts thereby resulting in third parties suffering loss and injustice to those parties. In several common law countries, such as England, Australia, New Zealand and Singapore, legislative reform of the doctrine has occurred. The legislative reform has abrogated to a significant extent the doctrine of privity in commercial contracts. Malaysia is a common law country, where the doctrine of privity is still applied to contracts. An analysis of Malaysian case law demonstrates that the most affected third party beneficiaries are those seeking to enforce insurance and construction contracts. While a small number of other third parties to commercial contracts, such as agreements to pay for work done, sale and purchase agreements and tenancy agreements are also affected, the detriment is not as significant. As a consequence, this thesis focuses primarily on the impact of the doctrine of privity on commercial contracts in the areas of insurance and construction in Malaysia The thesis aims to recommend appropriate reforms to address the injustices arising from the privity doctrine for third parties seeking to obtain the benefit of insurance and construction contracts, which may also benefit third parties to other types of commercial contracts. While the Malaysian insurance, consumer protection, negotiable instruments and agency laws allow third party beneficiaries to enforce benefits in contracts, the rights are found to be inadequate. As not all third parties seeking to enforce an insurance or construction contract can rely upon the legislation, the injustice arising from the doctrine of privity remains and needs to be addressed. To achieve this aim, a comparative analysis of the rights of third party beneficiaries under insurance and construction contracts in Malaysia, Australia and England is undertaken. The results of the analysis are used to identify appropriate elements for a legislative framework guided by the three essential criteria for effective law reform developed in the thesis. The three criteria are certainty, public interest and justice. The thesis recommends first the enactment of general legislation applicable to all commercial contracts including insurance contracts. Secondly, the thesis recommends specific targeted legislation to address the injustice faced by third party beneficiaries in construction contracts.

Leader-follower interactions : relations with OCB and sales productivity

Purpose Based on substitutes for leadership theory, the aim of this study is to examine followers' learning goal orientation as a moderator of relationships among transformational leadership, organizational citizenship behavior (OCB) and sales productivity. Design/methodology/approach Data came from 61 food and beverage attendants of a casino, and were analyzed using regression analyses. Findings Transformational leadership was positively related to both OCB and sales productivity. Learning goal orientation moderated the relationship between transformational leadership and OCB, such that transformational leadership was more strongly related to OCB among followers with a low learning goal orientation than among followers with a high learning goal orientation. Research limitations/implications Limitations of the study include the small sample size and cross-sectional research design. Practical implications Organizations could train supervisors to practice a transformational leadership style and to take followers' learning goal orientation into account. Originality/value The findings of this study suggest that, with regard to OCB, a high learning goal orientation of followers may act as a “substitute” for low levels of leaders' transformational leadership.

The Construction and Performance of Commercial Contracts

This book analyses the principles underlying the construction and application of a number of boilerplate and other clauses commonly included in commercial contracts. The first Part of the work deals with general principles of interpretation. It then considers clauses which allocate commercial risk; clauses relating to performance; clauses introducing new parties by way of assignment, novation or nomination; clauses such as guarantees and indemnities which create liabilities in third parties; and dispute resolution clauses including governing law. The authors highlight common issues surrounding the application of these clauses in practice and, where appropriate, make drafting recommendations based on their analysis of case law and the operation of relevant statutes. This is a very accessible resource for all commercial practitioners.

Government procurement contracts and minimum labour standards enforcement: Rhetoric, duplication and distraction?

Government contracts for services typically include terms requiring contractors to comply with minimum labour standards laws. Procurement contract clauses specify reporting procedures and sanctions for non-compliance, implying that government contracting agencies will monitor and enforce minimum labour standards within contract performance management. In this article, the case of school cleaners employed under New South Wales government contracts between 2010 and 2011 is the vehicle for exploring the effectiveness of these protective clauses. We find that the inclusion of these protective clauses in procurement contracts is unnecessary in the Australian context, and any expectations that government contracting agencies will monitor and enforce labour standards are misleading. At best, the clauses are rhetoric, and at worst, they are a distraction for parties with enforcement powers.

New regime for property agents and residential property sales in Queensland : Property Occupations Act 2014

This article examines the new Property Occupations Act 2014 (POA) and relevant provisions of the Agents Financial Administration Act 2014 (AFAA) and the impacts for property practitioners. The Acts are due to commence later in 2014 once regulations and relevant forms are drafted. Coinciding with the commencement of the Acts further versions of the REIQ Houses and Land Contract and REIQ Community Title Contract will also be released. The POA introduces changes for licencing of real estate agents, property developers and resident letting agents as well as significant changes for the contract formation process. The AFAA includes the trust account and claim fund provisions of PAMDA, which avoids duplication of these provisions across each of the industry-specific Bills. The most significant change is to the process for making a claim against the fund for the conduct of property agents.

Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.