In the media
Court dismisses former gambling addict's claims
against Aristocrat and Crown
The Federal Court decided on the case of Shonica Guy, a former
gambling addict, who brought a claim of misleading and deceptive
conduct against Crown Melbourne and Aristocrat Technologies
Australia regarding Aristocrat's 'Dolphin Treasure'
pokie machines (02 February 2018).
More...
Property sellers target brokers and planners with client
referral payments
Real estate sales companies are using big commissions to tempt
mortgage brokers, financial planners and accountants to sell
overpriced properties to unsuspecting clients (01 February 2018).
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Queensland motorists win as confusing fuel prices come
down
New laws mean that Queensland fuel retailers must display only the
full price of fuel available to all motorists. Flagged in July
2017, the regulations take effect from 1 February 2018 and carry
fines of up to $2,523, for individuals and $12,615 for corporations
(01 February 2018).
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Impotence entrepreneur Jack Vaisman bankrupted, owing
millions in court costs
Jacov "Jack" Vaisman has been bankrupted after failing to
pay more than $3.6 million in court costs after a successful
prosecution by the consumer watchdog. In December 2003, AMI agreed
to repay unsatisfied customers and publish six weeks of corrective
newspaper advertisements after the Federal Court declared, by
consent, that AMI had engaged in misleading or deceptive
advertising (31 January 2018).
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(ACCC) More...
Commonwealth Bank traded bank bills in unconscionable
way, court told
The corporate regulator has begun court action against the
Commonwealth Bank, alleging it engaged in unconscionable conduct
and sought to manipulate a key inter-bank interest rate. ASIC
alleges that on three occasions in 2012, CBA traded bank bills in
an "unconscionable" way that created "an artificial
price and a false appearance" of the market for some products
(30 January 2018).
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Peter Foster declared bankrupt
The Federal Court declared Peter Foster bankrupt last week,
granting the ACCC's application for a sequestration order after
he failed to pay costs in the SensaSlim matter. In April 2014, the
Court found SensaSlim had engaged in misleading or deceptive
conduct and had made false or misleading misrepresentations by
failing to disclose Mr Foster's involvement in the SensaSlim
franchise (29 January 2018).
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Consumers put too much faith in online reviews, experts
warn
Consumers are being warned to be wary of online reviews when making
purchases or bookings, thanks to an increase in fake or misleading
testimonials being used by businesses. ACCC acting chairman Dr
Michael Schaper said research suggested close to 80 per cent of
consumers view online reviews before making a purchasing decision,
but many of these may be unaware that reviews could be faked or
purchased by businesses (28 January 2018).
More...
Opposition calls for petrol price watch scheme for
Queensland to stop 'fuel rip-off'
The Queensland Government needs to set up a petrol price watch
scheme the State Opposition says, after prices in Brisbane soared
to almost $1.50 per litre on the first day of the new school year
(23 January 2018).
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Small business contacts up 30 per cent
Almost 5,000 small businesses contacted the ACCC in the second half
of 2017, up from 3,700 in the preceding six months, according to
the latest edition of the Small Business in Focus. Alleged
misleading conduct, false representations and consumer guarantees
remained the top issues reported to the ACCC by business (22
January 2018).
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Victory for Epson in Calidad case
A Federal Court judge has found that Calidad, a Sydney-based
supplier of remanufactured ink cartridges, infringed on patents
held by Epson. Calidad, however, is free to continue trading in
remanufactured cartridges. Epson alleged that Calidad had removed
or obscured Epson trademarks from its products in a breach of
statutory duty, engaged in misleading or deceptive conduct with one
of its online advertisements, and breached a 2013 settlement deed
from an earlier trademark lawsuit (19 January 2018).
More...
Cases
Hodgson v Besters [2018] NSWSC 21
CONTRACTS – loan agreement for vendor finance on sale of
combined commercial and residential property – commercial
premises occupied by accounting business owned by vendor which
employed purchaser – where vendor proposed that purchaser buy
the property as part of vendor's business succession plan which
would also involve his selling the business to the purchaser
– purchase of land completed with no legal entitlement to buy
the business – excessive purchase price –
purchaser's employment later terminated – whether vendor
loan agreement unjust.
TRADE PRACTICES – sale of commercial and residential
property – commercial premises occupied by accounting
business owned by vendor which employed purchaser – where
vendor represented that he would sell the accounting business to
the purchaser – whether vendor engaged in misleading or
deceptive conduct.
Hansen v Patrick [2018] QSC 007
MISLEADING AND DECEPTIVE CONDUCT –
Whether representations made or relied upon – fiduciary duty- whether duty owed to shareholder – whether fiduciary duty breached – application to reopen case and tender fresh evidence – money withheld at settlement – money had and received.
Alameddine
v Pickles Auctions Pty Ltd (Civil Claims) [2018] VCAT
91
On-line auction of used truck; misleading and deceptive conduct by
auctioneer in relation to mileage travelled by truck; liability of
agent (auctioneer) for misleading representation; conduit defence;
contractual terms – do they prevent the representee from
claiming reliance on the impugned representation? Whether there was
contributory negligence on the part of the representee? Is
contributory negligence available as a partial defence to a claim
under section 18 of the ACL (Vic)? ;the proper measure of loss for
an injured party who has suffered loss or who is likely to suffer
loss because of conduct in contravention of s.18 ACL; the ACL
sections 236 & 237; proof of loss.
Charan
v Nationwide News Pty Ltd [2018] VSC 3
DEFAMATION – Imputations – Defamatory words –
Justification – Defamation Act 2005 (Vic) s 25
– Evidence Act 2008 (Vic) ss 69, 135 –
Registered Training Organisation – Victorian Training
Guarantee – Unscrupulous conduct – failure to comply
with quality standards – business records – records
kept by a statutory body – what constitutes a business record
– admission of evidence which may be unfairly prejudicial
– probative value outweighs unfair prejudice. The alleged
imputations arising out of the article and the defence. The eight
pleaded imputations in the statement of claim read as follows: Mr
Charan was head of ACN, a company which engaged in unscrupulous
business practices that took advantage of vulnerable consumers; a
company which engaged in misleading and deceptive conduct.
Loustas
v Sier & Ors [2018] VSC 13
CONTRACT – Construction – Written agreement –
Language susceptible of more than one meaning – Second and
third mortgagee purchased land at public auction from first
mortgagee in possession – Purchasers entered agreement with
previous proprietor to continue development of the land –
Profit share arrangement – Whether previous proprietor was a
joint venturer or merely a development manager – Whether
second mortgagee breached agreement by accepting repayment of
mortgage loan from receiver after auction – Electricity
Generation Corporation (t/a Verve Energy) v Woodside Energy
Ltd [2014] HCA 7; (2014) 251 CLR 640 applied. CONTRACT –
Termination – Inability to obtain construction finance to
complete development – Whether a contractual obligation is
incapable of being performed – Shevill v Builders
Licencing Board [1982] HCA 47; (1982) 149 CLR 620 applied
– Frustration – Common assumption that construction
finance could be obtained – Codelfa Constructions Pty Ltd
v State Rail Authority of NSW (1982) 149 CLR 337 applied
– Breach – Purchasers entered a second agreement with a
new syndicate of investors to complete development – Whether
first agreement was breached.
EQUITY - Fiduciary duties – Solicitor-client relationship
– Second mortgagee had acted for previous proprietor for many
years as solicitor – Whether the retainer was terminated
prior to auction when solicitor purchased client's land –
Whether the solicitor should have advised his client to receive
independent legal advice – Whether the solicitor had a
conflict of interest in drafting the agreement entered into with
the client – Whether any loss or damage was suffered –
Whether the solicitor entering into the second agreement involved a
breach of fiduciary duties owed to his former client. Because it is
necessary that some loss or damage must result from the misleading
and deceptive conduct for a cause of action to be established,[107]
the claim on this basis fails.
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