Australia: Competition and Consumer Law - Whats News? – 12 April 2017

Last Updated: 17 April 2017
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, December 2017

In the media

Fake blogger Belle Gibson faces jail if she fails to pay $30k
The 25-year-old fake wellness blogger is ordered to pay $30,000 in costs — with a further six-figure penalty possible — over misleading and deceptive conduct (07 April 2017). More...

Nurofen manufacturer loses appeal against $6m fine for misleading consumers
The High Court rejects the manufacturer of Nurofen's appeal against being issued the largest fine on record for breaching Australian consumer law over its specific pain range (06 April 2017). More...

ACCC takes action against Apple over alleged misleading consumer guarantee representations
The ACCC has instituted proceedings in the Federal Court against Apple Pty Limited and its US-based parent company, Apple Inc., (together, Apple) alleging that Apple made false, misleading, or deceptive representations about consumers' rights under the Australian Consumer Law (06 April 2017). More...

Banks to assist customers disadvantaged by dodgy loan assessments: ASIC
Eight home lenders, including three of Australia's major banks, will be required to give redress to victims of irresponsible lending under a deal with the corporate watchdog (03 April 2017). More...

Tougher penalties under new Horticulture Code
The revised nation-wide Horticulture Code, which sets out mandatory requirements for traders and agents operating in Australian fresh fruit and vegetable markets, will include the potential for penalties of up to $54,000 when it comes into effect 1 April 2017 (31 March 2017). More...

ACCC releases Statement of Issues on proposed acquisition of InterGrain by AGT
The ACCC has issued a Statement of Issues expressing initial concerns about the proposed acquisition of InterGrain Pty Ltd by Australian Grain Technologies Pty Ltd (AGT). The ACCC's preliminary view is that the proposed acquisition may substantially lessen competition in relation to the breeding and development of barley seed varieties for the Australian market (31 March 2017). More...

Competition changes: Levelling the playing field for small business
A Landmark review of Australian competition policy, introduced into Federal Parliament this week, backs small businesses to grow, innovate and create more jobs, Small Business Minister Michael McCormack says. Mr McCormack said the Competition and Consumer Amendment (Competition Policy Review) Bill 2017, implements a number of recommendations from the Harper Review to back small business (31 March 2017). More...

Spotless takes Downer EDI to Takeovers Panel over 'misleading' statements
Spotless Group, which is the subject of a $1.2 billion hostile takeover bid from Downer EDI, has asked the Takeovers Panel to stop the dispatch of Downer's bidder statement on the grounds it contains "misleading and deceptive statements". More...

ASIC reports on Sydney Stock Exchange's listing standards
ASIC has today released its assessment report on the listing standards of the Sydney Stock Exchange Limited (SSX). The report concludes that SSX should make a number of changes to improve compliance with its statutory obligations. These changes include putting adequate arrangements in place to manage conflicts between its commercial interests and the need for it to operate a listing market that is fair, orderly and transparent (30 March 2017). More...

ACCC denies authorisation for banks to collectively bargain with and boycott Apple Pay
Chairman Rod Sims indicated that the ACCC was 'not satisfied, on balance, that the likely benefits from the proposed conduct outweigh the likely detriments. The ACCC is concerned that the proposed conduct is likely to reduce or distort competition in a number of markets (31 March 2017). More...

Federal Court confirms ACCC approach to setting Telstra fixed-line access pricing
The Federal Court of Australia has dismissed Telstra's application for judicial review of the ACCC's fixed-line services final access determinations made in October 2015. The ACCC's 2015 final access determinations required a one-off uniform decrease of 9.4 per cent in access prices from previous levels for the seven declared fixed-line access services (28 March 2017). More...

ACCC issues draft assessment of NBN Co SAU variation
The ACCC has today issued a draft decision to reject NBN Co's proposed variation to its Special Access Undertaking (SAU) to incorporate new technologies such as fibre-to-the-node (FTTN), fibre-to-the-building (FTTB) and hybrid fibre coaxial (HFC) (28 March 2017). More...

Unfair contract terms under scrutiny
Since the introduction of the new business-to-business (B2B) unfair contract laws were introduced in November, the ACCC has received 48 complaints from businesses about unfair contract terms. The ACCC says a number of clauses it identified as being potentially unfair continue to be used in standard form contracts (28 March 2017). More...

Australian Vocational Learning Centre agrees to make repayments for VET FEE-HELP diploma courses
In a court-enforceable undertaking, AVLC has admitted that between 1 July 2014 and 30 April 2015, through the conduct of certain marketing agents, it made false or misleading representations to consumers, including that the VET FEE-HELP courses were free, government funded or specifically for low-income individuals (27 March 2017). More...

Government announces review into retail electricity prices
The Federal Government has ordered the consumer watchdog to look into retail electricity prices amid a spike in power costs for consumers on Australia's east coast (26 March 2017). More...

ASIC releases findings of CommInsure investigation
ASIC has released a public report today on its investigation into the life insurance business of CommInsure. In the course of the investigation, ASIC identified a number of areas where CommInsure needs to make improvements to its claims handling processes (23 March 2017). (Report) More... (ASIC) More...

Remove claims handling exemption under law
ASIC has once again called for the exemption removal of insurance claims handling from the Corporations Law after CommInsure was cleared of any wrongdoing as per the law. Kell's calls for ASIC's penalty powers to be increased to enable it to enforce more stringent penalties for misconduct in relation to insurance claims (24 March 2017). More...


Ceccon Transport Pty Ltd & Ors v Tomazos Group Pty Ltd [2017] NTSC 25
CONTRACTS – Construction and Interpretation of Contracts – Objective theory of contract – Use of post contractual communications – Identity of contracting party.
TORTS – Negligence – Negligent misstatement – Duty of care – Realisation and intention of representor – Nature and purpose of the representation – Reliance by representee – Actionable representation not made.
COMPETITION AND CONSUMER LAW – Misleading and deceptive conduct – s 18 Australian Consumer Law - Representations with respect to future matters under s 4 - Trade or commerce.
ESTOPPEL – General principles - Estoppel by encouragement - Equitable estoppel not available to assist a person to enforce an agreement that would be void at law and contrary to public policy - clean hands.
EQUITY – Fiduciary Obligations - Breach of Fiduciary duty – Fiduciary relationships.
TORTS – Interference with contractual and other relations - Inducing breach of contract - Wrongful interference with a contract by unlawful means – Earlier agreement superceded by formal contract.
Competition and Consumer Act 2010 (Cth) Schedule 2, The Australian Consumer Law s 18, s 4.

White v Quest Rosehill Pty Ltd [2017] NSWSC 238
Declaratory relief to be given as per paragraph 145 of the judgment.
LANDLORD AND TENANT – leases and tenancy agreements – construction and interpretation – leases impose obligation of repair and maintenance on landlord – leases confer certain rights upon landlord to facilitate proposed sale of leased property – whether notice that landlord must undertake repair and maintenance works validly issued – whether tenant obliged to provide landlord with access to properties to assess scope of required works – extent of landlord's rights in relation to proposed sale of leased property – obligation to do all things necessary to enable other party to perform – obligation of co-operation – whether tenant engaged in unconscionable conduct – declaratory relief granted - Australian Securities and Investments Commission Act 2001 (Cth), s 12CB; Competition and Consumer Act 2010 (Cth), Sch 2, ss 21, 22, 237.

Chowder Bay Pty Ltd v Paganin [2017] FCA 332
CONSUMER LAW – whether respondents engaged in misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth) – where applicants invested in joint venture for development of a resort pursuant to syndicate agreements – joint venture debt to be repaid from sale of villas comprising the resort – whether first and second respondents were involved or engaged in misleading or deceptive conduct as directors of companies – companies applied to bank for a loan facility to finance the development – securities given by applicants to bank in respect of loan facility – whether valuations prepared by the third and fourth respondents for bank were misleading or deceptive.
CONSUMER LAW – whether applicants suffered loss or damage pursuant to s 82 of the Trade Practice Act 1974 (Cth) – applicants claim bank relied on valuations in providing financing for resort development – whether such reliance caused applicants to suffer loss – whether applicants entitled to damages for loss of opportunity to have development property sold – whether applicants entitled to recover legal costs incurred in related proceedings – whether related proceedings commenced as "defensive proceedings". Trade Practices Act 1974 (Cth) ss 52, 82.

David Clarke Air Conditioning Pty Ltd as trustee for The David Clarke Air Conditioning Trust v Quann [No 3] [2017] WASC 91
Contract - Oral agreement - Terms of oral agreement - Where precise terms not capable of ascertainment - Contemporaneous documents - Surrounding circumstances - Turns on own facts.
Equity - Fiduciary duties - Conflict of interest - Whether fiduciary duties exist - Whether fiduciary duties breached - Turns on own facts.
Contract - Misleading representation - Fair Trading Act 1987 (WA) - Turns on own facts.
Trusts - Alienation of property - Whether transaction defeats the interests of creditors - Declaration to void transaction – Section 89 Property Law Act 1969 (WA) - Turns on own facts. Fair Trading Act 1987 (WA), s 10, s 79.

P.T. Ltd v NB2 Pty Ltd [2017] NSWSC 309
TRADE PRACTICES – misleading or deceptive conduct – whether representations made – whether reliance – unconscionable conduct – s 51AC Trade Practices Act 1974 (Cth) – RETAIL LEASES – unconscionable conduct – s 62B Retail Leases Act 1994 (NSW) – claim for compensation – s 34(1)(b) Retail Leases Act 1994 (NSW).

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ian Robertson
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions