Australia: Competition & Consumer Law News – 7 February 2018

Last Updated: 8 February 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, March 2019

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). More...

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). More...

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). More... (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). More...

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). More...

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). More...

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). More...

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...


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

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.

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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Ian Robertson
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