In the media
Tweed real estate agents fined $55,000 for underquoting
and licensing breaches
A recent NSW Fair Trading investigation has seen
34 fines totalling $55,000 issued to 16 real estate
agents in the Tweed Heads region. The operation targeted general
compliance and underquoting, and found breaches relating to
unlicensed individuals and corporations, as well as the use of
misleading advertising (15 February 2018).
More...
Criminal cartel proceedings commenced against Country
Care and its managers
Criminal cartel charges have been laid against The County
Care Group Pty Ltd, its Managing Director and a former employee.
The charges against County Care Group represent the first criminal
prosecution of an Australian corporation and the second criminal
prosecution of a cartel (the first being NYK)
under the criminal cartel provisions of the Competition and
Consumer Act (15 February 2018).
More...
CFMEU to pay $1m in penalties for secondary
boycott
The Federal Court has ordered the Construction, Forestry,
Mining, and Energy Union (CFMEU) to pay $1 million
in penalties for secondary boycotts against Boral and Alsafe at
construction sites in Hawthorn and Richmond, Victoria. The court
ruled that the CFMEU contravened section 45D(1) of the
Competition and Consumer Act 2010 (CCA)
by engaging in conduct in concert with a shop steward at both sites
which hindered or prevented the acquisition of concrete from Boral
and its subsidiary Alsafe for the purpose of causing substantial
loss or damage to Boral's business (14 February 2018).
More...
Brands give illusion of competition, commission
says
A proliferation of brands from a few providers is
camouflaging a high insurance market concentration in Australia,
according to a Productivity Commission draft report (12 February
2018).
More...
Letore ordered to compensate migrant victims
The Federal Court has ordered Letore Pty Ltd
(Letore) to compensate victims of a permanent
residency program, which was operated by Clinica Internationale Pty
Ltd (Clinica), for amounts they paid to Clinica.
In 2016, the Federal Court found that Clinica had engaged in
unconscionable conduct and made false or misleading representations
about the program (12 February 2018).
More...
Federal Court orders over $7 million in fines
The Federal Court has penalised three companies with
fines of over $7,000,000, following the ASIC proving that they
offered and gave cash payments to financially vulnerable clients in
connection with the provision of financial advice. The Court found
that the three companies, Wealth and Risk Management
(WRM), Yes FP and Jeca Holdings (trading as Yes
FS), ran a business model meant that all three engaged in
unconscionable conduct (08 February 2018).
More...
Hyundai promises to obey consumer law amid ACCC
crackdown on car industry
Hyundai agrees to step up its compliance with Australian
consumer laws, as the ACCC targets the car manufacturing industry
at large (08 February 2018).
More...
'Four pillars' policy under fire from
Productivity Commission
The "four pillars" policy that prevents big
bank mergers is unnecessary and has repressed competition, says the
Productivity Commission, which has called for a sweeping review of
restrictions on ownership of the nation's banks (07 February
2018).
More...
Canberra petrol prices remain stubbornly high, 10 cents
cheaper across the border
Consistently high fuel prices in the capital have caused
renewed calls for real-time price tracking, but the ACT Government
says that is not the answer (06 February 2018).
More...
ACCC releases guidance on free range egg standard
The ACCC has released guidance for egg producers on its
approach to enforcing the new National Information Standard on free
range eggs, which comes into effect on 26 April 2018. The guidance
explains egg producers' obligations under the misleading or
deceptive conduct provisions of Australian Consumer Law. This
includes representations made through marketing activities such as
product packaging and advertising (06 February 2018).
More...
In practice and courts, published reports
Competition in the Australian financial system: draft
report
Productivity Commission: 07 February 2018
This inquiry focusses on competition in Australia's
financial system as a means to improve consumer outcomes, enhance
the productivity and international competitiveness of the financial
system and the broader economy, and support ongoing financial
system innovation — without undermining financial stability
objectives. More...
Exposure Draft: Australian Consumer Law Review
Amendments
Views are sought on the design of the exposure draft
legislation and regulations (and accompanying draft explanatory
materials). These exposure drafts include amendments to:
- clarify existing provisions relating to consumer guarantees, voluntary recalls, unsolicited consumer agreements and false billing;
- enhance the regulators' information gathering powers for investigations in relation to product safety and unfair contract terms;
- extend the unconscionable conduct protections to publicly listed companies;
- expand the remedies available to the courts for contraventions of the ACL; and
- improve price transparency.
Submissions close on 28 February 2018. Further information is available on the Treasury website.
Competition Law Symposium
The symposium, Cartels, Optimal Enforcement and
Theories in Competition Law, will be held in
Brisbane on 27 March 2018. The
program, which can be
downloaded here, features keynote speakers from around the
world.
Small business collective bargaining guidelines
consultation
The Australian Competition and Consumer Commission is
seeking feedback on new guidelines for small business collective
bargaining. The guidelines are for small businesses, including
farmers, to assist their understanding of the authorisation and
notification processes for obtaining ACCC approval for collective
bargaining and boycotts. Submissions close on 23 February 2018.
More...
Cases
Australian
Competition and Consumer Commission v Swishette Pty Ltd [2018]
FCA 55
ESTOPPEL – issue estoppel – Anshun estoppel
– abuse of process – where in an earlier proceeding it
was alleged that a company had contravened the misleading or
deceptive conduct provisions and the unconscionable conduct
provisions of the Australian Consumer Law – where in a later
proceeding it was alleged that the respondents were persons
"involved" in the contraventions – whether it was
unreasonable not to have included these claims in the earlier
proceeding.
CONSUMER LAW – misleading or deceptive conduct –
unconscionable conduct – person "involved" in
contravention – whether respondents were knowingly concerned
in, or party to, contraventions of the Australian Consumer Law
– where contravener and respondents had same director –
where conceded that knowledge of director is to be imputed to the
respondents – where one respondent used its credit card to
pay relevant expenses for the contravener – where one
respondent provided a guarantee and mortgage to support the
contravener's overdraft.
TRUSTS AND TRUSTEES – trustee's right of indemnity or
exoneration – where trustee found to have been involved in
contraventions of the misleading or deceptive conduct and
unconscionable conduct provisions of the Australian Consumer Law
– whether trustee would have a right of indemnity or
exoneration in respect of the liability that would arise if a
consumer redress order were made under s239 of the Australian
Consumer Law.
Competition and Consumer Act 2010 (Cth) s137H, 155, Sch
2, Australian Consumer Law, ss2, 18, 21, 29, 31, 232, 239, 240,
248; Evidence Act 1995 (Cth), s87, 191; Trade
Practices Act 1974 (Cth), s52; Federal Court Rules
2011, r22.02; Penalty Interest Rates Act 1983 (Vic),
s2; Trustee Act 1958 (Vic), s36.
Kallin Pty Ltd v ACN 107 851 847 Pty Ltd
[2018] NSWSC 124
CONSUMER LAW — Misleading or deceptive conduct
— Whether statement misleading — Reliance upon
misleading statements — Causation — Damage —None
established. CONTRACTS — Breach of warranty — Not
established – No damage established.
NB2 Pty Ltd v P.T. Ltd
[2018] NSWCA 10
CONSUMER LAW – misleading or deceptive conduct
– whether respondents made representation that appellants
would be the only fresh fruit and vegetable retailer in a section
of the respondents' shopping centre. CONSUMER LAW –
misleading or deceptive conduct – whether failure by shopping
centre's owners to disclose to an independent retailer of fresh
fruit and vegetables in the centre that a supermarket had plans to
engage in that activity was misleading or deceptive or constituted
unconscionable conduct.
Ipstar Australia Pty Ltd v APS Satellite Pty Ltd
[2018] NSWCA 15
CONSUMER LAW – Competition and Consumer Act
2010 (Cth) – Australian Consumer Law –
unconscionable conduct – whether conduct of an experienced
commercial party in imposing a price increase on another
experienced commercial party was in all the circumstances
unconscionable. CIVIL PROCEDURE – Commercial List, Technology
and Construction List – Procedure – whether reply to
commercial list response forms part of pleadings – whether p
leaded case encompassed claim for statutory warranty for defective
equipment regardless of cause of defect.
Semantic Software Asia Pacific Ltd v Ebbsfleet Pty Ltd
[2018] NSWCA 12
CONTRACTS – breach of contract – consequences
of breach – right to damages – whether remedy
identified in contract was the exclusive remedy for breach.
CONTRACTS – construction and interpretation – whether
contractual guarantee was given by first appellant only. CONTRACTS
– breach of contract – whether breach established
– whether shares in the second appellant company had tripled
in value within two years of their issue – whether trial
judge erred in relying on certain expert evidence regarding value
of the shares. CONSUMER LAW – misleading or deceptive conduct
under statute – parties accepted that representation that
shares would triple in value was misleading and deceptive –
whether reliance on particular representation was established by
respondents. CIVIL PROCEDURE – procedural fairness –
self represented defendants – defendants indicated that they
would be unable to pay for US resident to give expert evidence
– failure to make expert available for cross-examination led
to rejection of his report – defendants gave no indication
that situation would change – whether procedural unfairness
because trial judge failed to advise defendants to seek adjournment
to further attempt to make expert available.
Guy
v Crown Melbourne Limited (No 2) [2018]
FCA 36
CONSUMER LAW – misleading or deceptive conduct
– "poker" machines – whether features of the
Dolphin Treasure electronic gaming machine give rise to
representations about the odds of winning which are misleading or
deceptive – whether representations are made by Crown
Melbourne in making the electronic gaming machine available for
gambling – whether representations are made by Aristocrat in
manufacturing and supplying the machine – consideration of
the term "theoretical return to player" –
application dismissed. CONSUMER LAW – unconscionable conduct
– whether there is a class of gamblers of the Dolphin
Treasure electronic gaming machine who are "habituated"
or "addicted" to gambling – whether such a class of
gamblers are at a "special disadvantage" –
consideration of expert evidence concerning the relationship
between features of electronic gaming machines and gambling
disorder – whether the respondents engaged in unconscionable
conduct in making the machine available for play to this class of
gamblers – application dismissed. Competition and
Consumer Act 2010 (Cth), s131C; Sch 2 Australian Consumer
Law (Cth), ss18, 20, 21, 22, 232.
Pattinson v Bellwether Agriculture Pty Ltd (In Liq)
[2018] NSWSC 38
TRADE AND COMMERCE – Trade Practices Act
1974 (Cth) and related legislation – misleading and
deceptive conduct. DAMAGES – assessment of damages where loan
the subject of the claim repaid and re-advanced by discretionary
trust controlled by the lender – recovery of mitigation costs
– whether an order should be made under Fair Trading Act
1987, s72, for the payment of a sum of money to the trustee of
the discretionary trust controlled by the lender – approach
court should adopt on assessment of damages on an ex parte
application. BANKRUPTCY – whether claim for misleading and
deceptive conduct provable in bankruptcy.
Brand2Content Pty Ltd t/as Franchise Works v Solar Australia Pty
Ltd
[2018] NSWSC 56
CONTRACTS – Breach of contract – Consequences
of breach – Right to termination – Innominate terms
– Principle from Koompahtoo case CONTRACTS –
Construction – Interpretation – Whether franchise
consultant's negotiation of sponsorship agreements without
authorisation from client breached obligation to act in good faith
CONTRACTS – Construction – Whether an exclusivity
provision prohibited sponsorship fundraising by franchise
consultant CONTRACTS – Construction – Whether
client's authorisation for inclusion of unusual terms by
franchise consultant was required CONTRACTS – Construction
– Interpretation – Whether consultant breached
obligation to act in good faith by failing to follow client's
instructions, misleading client, failing to provide honest answers
to client CONTRACTS – Construction – Interpretation
– Whether consultant's obligation to act in good faith
was breached by failure to inform client about special condition
TRADE AND COMMERCE – Competition and Consumer Act
2010 (Cth) and related legislation – Misleading or
deceptive conduct – Whether misleading or deceptive
representations about an approval requirement for unusual terms and
an exclusive territory of operation were made EVIDENCE –
Opinion evidence – Exceptions – Expert opinion –
Whether chartered accountant had specialised knowledge or
sufficient evidence to make assumption about likely number of
future sales CONTRACTS – Termination – Election –
Whether parties agreed to terminate CONTRACTS – Termination
– Repudiation of contract – Express refusal to perform
CONTRACTS – Remedies – Damages – Loss of chance
– Reasonableness of assuming completion of further franchise
agreements after breakdown of client-franchise consultant
relationship.
Evolution Traffic Control v Skerratt
[2018] NSWSC 49
COMMERCE — Pre-contractual representation —
Inducement of purchase — Incomplete disclosure of material
information — Whether misleading or deceptive conduct —
Whether plaintiff reasonably relied on representations COMMERCE
— Misleading representations — Damages — Fair
value — Whether Potts v Miller approach to assessment
question is appropriate No question of principle.
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