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9 years ago was in Hong Kong and somehow was caught up in a…

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Hi, my name is...

Hi, my name is ***** ***** 9 years ago was in Hong Kong and somehow was caught up in a "Vacation" Club called Absolute, I paid $11,000, and my friend at the time paid $11,000 also.

Lawyer's Assistant: What state/territory are you in? It matters because laws vary by location.

Queensland, Cleveland!!It has distressed me and many times have tried to onsell. It can be used anywhere overseas, accommodation in every country.

Lawyer's Assistant: What steps have you taken so far?

Have been in touch many times with the company and have drawn up papers to sell (my friend and I parted ways many years ago, mainly because of this situation).You can imagine I am a pensioner, just living from fortnight to fortnight!! Am 76 years old. I did advertise in Gumleaf once for a long period no enquries. Having this money invested in a 45 years Vacation Club is causing me such stress, cannot sleep, have no money, worrying where and how I am going to pay anything - my bills, just living. We did pay the maintenance fee for a few years, but not for at least 5 years. I have all the paperwork signed ready to hand over to someone, not sure where to start. I should have done something long before this but time has got away. I need help to restore my sanity and to hand this vacation club accommodation to onsell. I should have gone to the Courts straight away to have our money back. I am not looking to get much back but want to hand it on. Apparently it can be given to family, but am sure my family would not approve or use it!! Please help, kind regards, ***** *****

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

You can ask me something?

Submitted: 2 months ago.Category: Australia Law
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Answered in 5 minutes by:
6/1/2018
Solicitor: John Melis, Lawyer replied 2 months ago
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 3,568
Experience: Principal Lawyer at Legal AU Pty Ltd
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Hi, I’m John a solicitor from Melbourne. I may ask you a few questions to narrow the issues you have raised.

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Solicitor: John Melis, Lawyer replied 2 months ago

do you have a copy of the agreement ?

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Customer reply replied 2 months ago
all paperwork sorted and signed ready to hand over
Solicitor: John Melis, Lawyer replied 2 months ago

Shirley, what is the best outcome you would like to achieve ?

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Customer reply replied 2 months ago
I cannot afford $85. Do you know where I can speak to someone who has free legal aid? I went to Capalaba many years ago when I first arrived in Cleveland. Spoke to someone at Capalaba Library to ask who it was I would have seen it is across the road from the Library and this is how I am somehow talking to you cost of $5??
Solicitor: John Melis, Lawyer replied 2 months ago

we can talk in this post as long as you need with out further charge

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Customer reply replied 2 months ago
Need to onsell this 45 year Absolute Vacation Club
Solicitor: John Melis, Lawyer replied 2 months ago

The main point you need to consider is the contract that has been signed. The first aspect you need to look into is the provision that explains the legal jurisdiction. This means where a court action can be taken to claim under the contract if there is a breach. Some of these contracts have a legal jurisdiction in different parts of Asia.

There are numerous types of timeshare contract deals that are right across Asia that can create complications at a later date.

If the contract has no termination provision, you will be bound by the terms of that contract. Unless it breaches the Australian Consumer Law.

Where you fail to make payments under the contact, the seller can raise a claim in court of jurisdiction, obtain a judgement debt and then have the order reserved in an Australian court to pursue the debt.

The best outcome is to consider a amicable settlement if they the seller holds all your personal details.

These types of timeshare contracts are in away sophisticated scams per se.

Where you fail to pay the funds under the contract, and there is no pursuit of the debt claim against you, it is important that you beware a judgement debt may be filed within the contracts legal jurisdiction, which may remaining standing for a period fo time, subject to that country’s statutory limitation period. If the judgement debt/order is still standing, and you enter that county after that order has been issued, there is a possibility that you may be arrested upon your arrival for the failure to settle the debt due.

Each contract has its own contract law but there are treaties between countries to support refiling of judgement debts where they are legitimate.

You have a legal right to protect your interests in this situation.

One of the outs you may have under the contract is where there is a breach of the Australian Consumer Law such as unfair contract terms.

Under section 24(1) of the Competition and Consumer Act 2010 (Cth) an unfair contract term is one where:

a. it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and

b. it is not reasonable necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

c. it would causer detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

A significant imbalance occurs where the term in the contract is weighted in favour of one party over the other in respect to their rights and obligations. An imbalance creates a disadvantageous position where one party is burden by that contract term unreasonably. The work significant principally means: “significant in magnitude”, or “sufficiently large to be important” or being “substantial”.

You would need to bring your claim under the Australian Consumer Law at the state tribunal.

The claim is listed under the Civil division ACL.

The key element about your application is the points of claim that you draft and submit online that details your claim. This document needs to be carefully date and in a chronological order by number points. At the start of the application you need to state the legislation you and apply which is the Australian Consumer Law and what orders you are seeking from tribunal.

The tribunal or court may take into account the following facts under secretion 24(2) of the Act in determining whether a term is unfair:

a. the extent to which the term is transparent;

b. the contact as a whole.

A contract term will be transparent where it is expressed in plain language, legible and containing no concealed pit falls or traps. Where there is a lack of clarity in the term this may indicate a significant imbalance between the parties and making that term void.

Under section 3 of the Act a term will be transparent where: the term is:

  1. express in reasonably plain language; and

 

  1. Legible; and

 

  1. presented clearly; and

 

  1. readily available to any party affected by the term.

Section 25 of the Act provides examples as to what an unfair contract term may be and this list is not definitive but provides a guide on the assessment of the term. Each case needs to be assessed on its merits.

Examples of unfair terms include:

a term that permits one party (but not the other) to avoid or limit performance of the contract;

a term that permits one party (but not the other) to terminate the contract;

a term that penalises one party (but not the other) for a breach or termination of the contract;

a term that permits one party (but not the other) to vary the terms of the contract;

a term that permits one party (but not the other) to renew or not renew the contract;

a term that permits one party to vary the upfront price payable without the right of the other to terminate the contract;

a term that permits one party unilaterally to vary the characteristics of the goods or services to be supplied, the interest in land to be sold or granted, or the financial products or services to be supplied;

a term that permits one party unilaterally to determine whether the contract has been breached or to interpret its meaning;

a term that limits one party’s vicarious liability for its agents;

a term that permits one party to assign the contract to the detriment of the other without the other’s consent;

a term that limits one party’s right to sue another party;

a term that limits the evidence one party can adduce in proceedings relating to the contract; and

a term that imposes the evidential burden on one party in proceedings relating to the contract.

When all the individual elements have been taking into account in regard to the contract term, the contract itself then needs to be considered as a whole in respect to the contract term that is in question.

In Paciocco v ANZ (2016) a late payment fee term in a consumer contract was not an unfair contract term, as the consumer had the choice to pay on time of incur a late fee. In ACCC v CLA Trading [2016] a rental car contract term which extended finality on the hirer at no fault of the customer was an unfair contract term.

If a term in a consumer contract is not reasonably necessary to protect the legitimate interest of the party who is advantaged by term, the term will be void.

You have a legal right to defend against an unfair contract as a consumer and the law will protect you in this matter.

Would you like to consider this option ?

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