Australia: Competition & Consumer Law - Whats News - 1 February 2017

Last Updated: 7 February 2017
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2018

In the media

Dick Smith shareholders investigate claims against Anchorage, IPO
Money may be recovered from insurance and parties behind the IPO – that's the non-disclosure of material information or misleading and deceptive conduct according to litigators (26 January 2017). More...

Village Real Estate (Newport) Pty Ltd, Martin John Rankin and Hussein Saad - Enforceable undertaking
An inner-west real estate agency has agreed to contribute $15,000 after acknowledging it made false and misleading representations about the sale price of a property (25 January 2017). More...

Western suburbs estate agency to face VCAT - Media release
Consumer Affairs Victoria has commenced legal proceedings against a western suburbs estate agency and its directors for a range of alleged contraventions of Victorian estate agent laws (25 January 2017). More...

Micro firms make highest business complaints to ACCC
The ACCC's latest Small Business in Focus report reveals that micro and small businesses made 7,000 complaints and enquiries from 1 July to 31 December 2016. In the past six months, the SME sector has been particularly concerned about misleading conduct and false representations with 735 complaints, consumer guarantees issues with 329 complaints, followed by misuse of market power concerns with 95 complaints" (25 January 2017). More... Small Business in Focus is available here.

ACCC hosting forums nationally to hear from dairy farmers
The Australian Competition and Consumer Commission is inviting dairy farmers to share any concerns they may have about competition and fair trading at a series of public forums around the country (24 January 2017). More...

ASIC appeals AAT's decision to lift NAB adviser ban
The corporate regulator has appealed a decision by the Administrative Appeals Tribunal to reverse a ban order on a former NAB financial planner. In March 2016, ASIC announced it had banned Gerard McCormack of South Melbourne for five years for engaging in misleading and deceptive conduct (24 January 2017). More... (ASIC statement) More...

FPA member denied wrongdoing, claimed unfair hearing
A financial adviser, who was recently called out by the FPA for "misleading" and "fraudulent" conduct, had denied any wrongdoing and claimed he was not being given a fair hearing (24 January 2017). More...

IMF Bentham prepared to fund class action on behalf of Bellamy's shareholders
Litigation funder IMF Bentham has told the Australian Securities Exchange it is prepared to fund, on a conditional basis, a class action against organic infant formula maker Bellamy's Australia Limited. IMF company secretary Jeremy Sambrook said the class action on behalf of shareholders would allege misleading and deceptive conduct by Bellamy's (23 January 2017). More...

Shocking claims aired in new bank report
A new report has exposed serious flaws in the way bankers are paid to sell financial products, but it stopped short of calling for an outright ban, prompting fears the bank-funded review will not go far enough to prevent dodgy sales and alleviate pressure on staff. Perhaps more revealing than the conclusions of the issues paper, released on Tuesday, were the shocking whistleblower reports it contained (19 January 2017). More...

Retail Remuneration Review: Issues Paper
Stephen Sedgwick AO: 17 January 2017
This Issues Paper summarises current practices and seeks further information about product sales commissions and product-based payments paid in respect of retail banking products. More...

In practice and courts, published reports

Have your say on the Australian Consumer Law
The ACL review is being undertaken to establish whether the law has been effective and how it can be improved to benefit traders and consumers, without imposing unnecessary red tape.
The Australian Consumer Law Review Interim Report is open and can be accessed at consumerlaw.gov.au. Formal submissions and comments are encouraged. Submissions closed on 9 December 2016 ahead of the final report in March 2017.

Senate Economics Committee receiving submissions on MMP bill
The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was referred to the Senate Economics Committee on 1 December 2016. The Committee called for submissions and is due to report on 16 February 2017. More...

Cases

Crescent Funds Management (Aust) Ltd v Crescent Capital Partners Management Pty Limited [2017] FCAFC 2
TRADE PRACTICES – misleading and deceptive conduct claims under the Australian Securities and Investments Commission Act 2001 (Cth) – companies engaged in financial services industry – whether business names, domain names and business activities sufficiently similar to be confusing and causative of contravening conduct – distinction between classes of consumer – distinction between sophisticated investors and other investors – occupation of a common field of activity – appeal dismissed.
TRADE PRACTICES – orders for injunction with disclaimer – appropriateness of unqualified, permanent injunction – appropriate exercise of discretion – appeal dismissed.
Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010) (Cth)) ss 18, 29.
Australian Securities and Investments Commission Act 2001 (Cth) ss 12DA, 12DB, 12GF.

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.

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