In the media
Australia's big banks have stranglehold on
consumers, government says
Australia's four biggest banks have used their
dominant position to exploit customers, deliver inferior products,
charge exorbitant fees and block competition, according to a new
government report calling for more competition and integrity in the
industry (03 August 2018).
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Alinta fined $300,000 for signing up customers without
consent
Electricity retailer Alinta has been hit with a $300,000
fine after 15 customers were signed up without their knowledge by
salespeople working on its behalf. An investigation by the
Victorian Essential Services Commission found the marketing and
sales company that Alinta used to gain new customers instead
created fake customers and switched people to Alinta without their
consent in some instances (02 August 2018).
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ACCC wants Heinz to pay $10 million penalty for implying
sugar-heavy food was healthy
The Australian Competition and Consumer Commission
(ACCC) says the Australian arm of global food
giant Kraft-Heinz should be forced to pay a $10 million penalty for
implying a range of toddler foods was healthy (01 August 2018).
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ACCC investigates McCain Foods over alleged
'deceptive' dealings with growers
The Australian Competition and Consumer Commission
(ACCC) is investigating allegations of
unconscionable conduct towards growers by one of the country's
major vegetable processors (01 August 2018).
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Meriton to pay $3 million for misleading consumers on
TripAdvisor
The Federal Court found that Meriton engaged in misleading
or deceptive conduct and conduct liable to mislead the public by
implementing a practice of 'masking' email addresses.
Masking prevented guests Meriton suspected would give negative
reviews from receiving TripAdvisor's 'Review Express'
prompt email. This gave the impression Meriton accommodation was of
a higher standard than otherwise may have been the case (31 July
2018).
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Telstra's debt collector flamed in Federal
Court
The ACM Group, an outsourced debt collection service, was
on Monday found by the Federal Court of Australia to have engaged
in misleading or deceptive conduct, harassment and coercion, and
unconscionable conduct towards vulnerable consumers. The judgment
is a significant win for the ACCC and the ASIC, who brought the
case against ACM in June 2016 (30 July 2018).
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Lessons for Australia in the EU's algorithmic price
war that ripped off consumers
UNSW's Rob Nicholls, discussing lessons for Australia
from the EU's alogithmic price war which resulted in fines of
more than AU$170m on electronics manufacturers for unlawful resale
price maintenance. In a world where the technology is used to
enforce regulation in the financial services sector (called
RegTech), there is also an opportunity for the ACCC to use
algorithmic-based tools detect anti-competitive conduct (30 July
2018).
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Europcar sued by ACCC for 'excessive' credit
card fees
Global hire car company Europcar could face a
multi-million-dollar payout after being taken to court for making
its customers pay "excessive" surcharges on credit and
debit card transactions (25 July 2018).
More...
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Top watchdog seeks out new whistleblowers
Cartel conduct, which costs taxpayers millions of dollars
when businesses agree to collude instead of compete, is extremely
difficult to prove and, without whistleblowers, even more difficult
to prosecute. To combat this the ACCC is ramping up its efforts to
get more information from the public by putting in place a number
of measures to enable potential whistleblowers to come forward
anonymously (24 July 2018).
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MyRepublic pays penalties for NBN speed claims
NBN provider MyRepublic Pty Ltd
(MyRepublic) has paid penalties totalling $25,200
following the ACCC issuing two infringement notices for alleged
false or misleading representations about its NBN service
performance. The MyRepublic website contained fine print
disclaimers that the ACCC considered were ineffective as they were
not prominent and did not provide clear information (23 July 2018).
More...
One Big Switch pays penalties over electricity discount
and savings claims
Revtech Media, the company behind group-discount website
One Big Switch, has paid penalties of $25,200 after the ACCC issued
two infringement notices for alleged false and misleading energy
price representations. The ACCC alleged that this representation
was misleading because calculation of the 27 per cent discount was
based on rates under the Big Switch Up offer which were higher than
Click Energy's 'standing' offer rates (23 July 2018).
More...
One Big Switch hit with fine for misleading
customers
Group discount website One Big Switch, which boasts more
than 1 million members, pays two fines totalling more than $25,000
after the consumer watchdog alleges it misled customers about
energy savings (23 July 2018).
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PwC blamed by Aoyin for failed banking licence
attempt
Chinese lender Aoyin claimed it wasted $5 million trying
to establish a locally incorporated bank in Australia because of
flawed advice from PwC. Aoyin is being sued by PwC, which claims it
is owed $300,000 in fees in connection with that advice while its
consulting arm is owed $128,000 for technology services. Aoyin is
counter-suing and claims PwC failed to act with reasonable care and
skill, breached its retainer and engaged in misleading and
deceptive conduct (22 July 2018).
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In practice and courts
Gas inquiry July 2018 interim report
This is the fourth interim report of the Australian
Competition and Consumer Commission's (ACCC)
inquiry into gas supply arrangements in Australia. The ACCC has
continued its focus on the operation of the East Coast Gas Market,
where there are immediate and longer-term concerns (02 August
2018).
More...
Cases
Bloom as Executor of the Estate of Farr (deceased) v
Paradise Lake Pty Ltd [2018] FCCA
1959
CONSUMER LAW – Applicant appointed respondent to act
as selling agent of a property – respondent facilitated sale
of the property to a company associated with respondent –
whether respondent disclosed to the applicant that the company to
which property sold was associated with the respondent – no
disclosure.
Competition and Consumer Act 2010 (Cth), ss.86AA, 138A,
Schedule 2, s.18; Federal Circuit Court Rules 2001 (Cth), r.17.02;
Manufactured Homes (Residential Parks) Act 2003 (Qld),
ss.8, 10, 11, 12, 14.
Australian Competition and Consumer Commission v Meriton
Property Services Pty Ltd (No 2) [2018] FCA
1125
CONSUMER LAW – conduct that was likely to mislead or
deceive in contravention of s 18 of the Australian Consumer Law
– conduct that was liable to mislead the public as to the
characteristics or suitability for their purpose of services in
contravention of s 34 of the Australian Consumer Law – relief
– whether declarations should be made – pecuniary
penalty – number of contraventions – injunction –
compliance program – whether corrective publication order
should be made.
Competition and Consumer Act 2010 (Cth), Sch 2, Australian
Consumer Law, ss 18, 33, 34, 224, 246.
Australian Competition and Consumer Commission v ACM
Group Limited (No 2) [2018] FCA
1115
CONSUMER LAW – misleading or deceptive conduct
– application by Australian Competition and Consumer
Commission and Australian Securities and Investments Commission
alleging misleading or deceptive conduct by a debt collecting
agency – allegation that agency misled particular debtors by
making written and/or oral representations concerning, inter alia
the likelihood, imminence and possible ramifications of the agency
commencing court proceedings to recover the relevant debts if they
were not paid – whether misleading or deceptive conduct
established.
CONSUMER LAW – allegation that debt collection agency used
undue harassment and coercion by, inter alia, threatening legal
proceedings and threatening other consequences – whether
unduly harassing or coercive conduct established.
CONSUMER LAW – allegation of unconscionable conduct by debt
collection agency – whether unconscionable conduct
established.
CONSUMER LAW – whether alleged contraventions by debt
collection agency fell to be determined by relevant consumer
protection provisions in the Australian Consumer Law or in the
Australian Securities and Investments Commission Act 2001
(Cth) – whether agency provides "a financial
service" as defined in the latter Act.
Park v Murray Irrigation Limited
[2018] NSWCA 166
CONTRACT – contractual arrangements between an
irrigation corporation and an irrigator – irrigator entitled
to separate water entitlements (WEs) and delivery
entitlements (DEs) – whether
corporation's unilateral changes to Policies so as to require a
transferor of WEs to surrender DEs and pay termination fees
constituted a breach of contract.
UNCONSCIONABLE CONDUCT – whether corporation's actions in
changing the Policies constituted unconscionable conduct in
contravention of s 51AC of the Trade Practices Act 1979
(Cth).
DAMAGES – whether the irrigator, had he established a breach
of contract, was entitled to damages equivalent to the termination
fees he paid to the corporation – whether the irrigator
showed that had the (assumed) breach not occurred he would have
received a higher net sale price for his WEs.
Jafari v 23 Developments Pty Ltd
[2018] VSC 404
JOINT VENTURE – Nature and extent of agreement
– Inability of proposed vendors to perform – Agreement
terminated or abandoned – New agreement between purchaser and
third party – Whether new or amended agreement between
pre-existing parties – No binding agreement.
MISLEADING AND DECEPTIVE CONDUCT – Whether representations
made – Whether omission committed – Reliance –
Loss – Fair Trading Act 1999 (Vic), s 9.
LEGAL PRACTITIONERS – Sale of property – Joint venture
– Solicitor acting for purchaser – Alleged
representations – Alleged failure to inform proposed vendors
– Whether solicitor liable to proposed vendors –
Whether vendors separately represented.
EQUITY – Sale by mortgagee in possession – Registered
proprietors provided effective vendor finance for amount of residue
– Whether vendor's lien in favour of registered
proprietors – Transfer of Land Act 1958 (Vic), s
77(3)(d).
REAL PROPERTY – Sale – Alleged non-disclosure of
pre-existing use – Alleged non-disclosure of risk of
contamination – Whether misleading or deceptive conduct
– Fair Trading Act 1999 (Vic), s 9 – Trade
Practices Act 1974 (Cth), s 52.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.