Australia: Competition & Consumer Law News – 8 August 2018

Last Updated: 13 August 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2018

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). More...

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). More...

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). More...

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). More... 

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).   More...

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). More...

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). More...

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... More...

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). More...

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). More... 

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). More...

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.

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