Australia: Inside track: Competition and Consumer Law

Last Updated: 18 October 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, October 2018

In the media

Supreme Court orders Android Enjoyed not to mislead customers
NSW Fair Trading has successfully obtained an interim injunction in the NSW Supreme Court against Digital Marketing and Solutions Pty Ltd, and its sole director Mr Yuen Ho Wong, which prevents him from selling prohibited goods such as counterfeit mobile phone chargers, or misleading consumers by advertising that products are in stock when in fact, they aren't." (12 October 2018). More...

Why are investment banks nervous about Australia's cartel case
Investment bankers are bracing for the start of a landmark legal case about alleged cartel activity in Australia's financial sector, nervous the proceedings could lead to increased scrutiny and tougher measures from regulators worldwide (08 October 2018). More...

NSW government's crackdown on price comparison websites
Businesses that operate price comparison websites will be forced to clearly disclose any commissions or referral fees or kickbacks they receive, under a new package of NSW consumer law reforms to be considered by State Parliament (08 October 2018). More...

Equifax (formerly Veda) to pay $3.5 million in penalties
The Federal Court has ordered that Equifax Australia Information Services and Solutions Pty Ltd (Equifax) pay penalties totalling $3.5 million for misleading and deceptive conduct and unconscionable conduct in relation to credit report services following joint submissions by Equifax and the ACCC (02 October 2018). More...

ACCC commences inquiry into foreign exchange
Sending money overseas, and buying foreign cash, will be the focus of a new ACCC inquiry into foreign currency conversion services, examining why major companies in Australia, including the big four banks, seem to be able to consistently charge high prices. The ACCC will examine price competition amongst suppliers of foreign currency conversion services and consider how easily potential entrants to the market can compete (02 October 2018). More...

Cases

Wyzenbeek v Australasian Marine Imports Pty Ltd (No 2) [2018] FCA 1517
CONSUMER LAW – misleading or deceptive conduct –representations made as to ocean going capability of motor vessel inducing purchase – vessel not capable of ocean going use – representations were misleading or deceptive and the makers had no reasonable basis for making them.
CONSUMER LAW – misleading or deceptive conduct – loss and damage – vessel purchased in reliance on misrepresentations as to ocean going capacity was worth the price paid – vessel depreciated over time with use – appropriate measure of damages – rule in Potts v Miller or Astonland measure.
CONSUMER LAW - sale of goods – fitness for purpose – defects generating risk in the use of a vessel – not fit for purpose.
DAMAGES – misrepresentation inducing acquisition of motor vessel – vessel was readily saleable – no evidence that vessel was worth less than the price paid – application of the Astonland measure would compensate for "loss" arising from extrinsic, supervening or independent causes which were unrelated to the consequences of the misrepresentation – loss not established.
Australian Securities and Investments Commission Act 2001 (Cth)
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law

Flogineering Pty Ltd v Blu Logistics SA Pty Ltd [2018] FCA 1479
PRIMARY INDUSTRY – consideration of the regulatory arrangements established under the National Measurement Act 1960 (Cth) concerning the approval of a pattern (design) for a milk flowmetering system for the accurate measurement of the transfer of milk from the refrigerated vat on a dairy farm to a transport tanker and from the tanker to the storage vats of a milk processor – consideration of the conditions of approval of the pattern – consideration of the provisions of the Act relating to examination and approval of patterns, verification of compliance of instruments with the relevant requirements, certification and use – consideration of whether the affixing of an approval number to particular measuring instruments without the approval of the applicant engages misleading or deceptive conduct or conduct likely to mislead or deceive and whether such conduct amounts to passing off.
STATUTES – consideration of a wide range of provisions of the National Measurement Act 1960 (Cth) and the Regulations made under that Act
Competition and Consumer Act 2010 (Cth), schedule 2, ss 18, 29, 232, 236

Ye v Zeng (No 7) [2018] FCA 1478
ARBITRATION – orders for the appointment of a receiver because obligations of payment were not fulfilled by award debtor subsequently set aside by agreement between parties – application to restore orders.
CONSUMER LAW – whether respondents engaged in misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law – whether oral representations were made as alleged – whether the making of a representation as to financial capacity was conduct in trade and commerce – whether contravening conduct caused entry into agreements – contravening conduct established and agreements set aside.

Westlawn Finance Limited v Tagg [2018] NSWSC 1491
GUARANTEE AND INDEMNITY – Discharge of guarantor – Creditor releases co-guarantor – Effect of one co-guarantor's consent to release of another co-guarantor.
CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW) – Whether contracts for a guarantee and mortgage on ordinary commercial terms were unjust – Relevance of independent legal advice – Whether the contracts conferred a benefit.
CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – s 18 of the Australian Consumer Law – Whether conduct was in trade and commerce – Whether any loss or damage was suffered.
CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – s 18 of the Australian Consumer Law – Circumstances in which silence may be misleading or deceptive – Whether impugned conduct caused loss or damage.
TORTS – Miscellaneous torts – Interference with contractual and other relations – Inducement of breach of contract – Knowledge that conduct would constitute a breach of contract – Intention to persuade or induce breach of contract.
TORTS – Miscellaneous torts – Conspiring to injure – Conspiring to injure by unlawful means – Intention to injure – Whether unlawful means include torts and breaches of contract.
CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – s 18 of the Australian Consumer Law ญญญ– Involvement in a contravention under s 236 of the Australian Consumer Law – Need for causative conduct and actual knowledge – Whether any loss or damage suffered – Contributory negligence – Limitation of liability under s 87CD of the Competition and Consumer Act 2010 (Cth).
CONTRACTS – Unconscionable conduct – s 21 of the Australian Consumer Law – s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth).
Australian Consumer Law

Hyder v McGrath Sales Pty Ltd [2018] NSWCA 223
CONSUMER LAW – misleading and deceptive conduct – sale of residential property – pre-sale statements as to availability of private parking made by respondent real estate agent orally and in advertising material – whether primary judge erred in finding that real estate agent engaged in misleading and deceptive conduct but did not cause purchaser any loss – whether primary judge erred in accepting respondent's valuation evidence – whether primary judge erred in finding purchaser two-thirds contributorily negligent – whether primary judgment could be supported on alternative ground that reasonable purchasers would have understood that real estate agent was merely passing on information obtained from the vendor and was thus a mere conduit.

The Owners โe" Strata Plan 81837 v Multiplex Hurstville Pty Ltd [2018] NSWSC 1488
Separate questions each answered "No"
BUILDING AND CONSTRUCTION – separate questions – "owner" – Home Building Act 1989 – whether development manager and another party named in development management agreement were owners and thus developers of land for the purposes of the Home Building Act 1989.
BUILDING AND CONSTRUCTION – separate questions – "contract to do residential building work" – Home Building Act 1989 – development management agreement – whether development management agreement is a contract to do residential building work.
MISLEADING OR DECEPTIVE CONDUCT – separate questions - representations made to principal certifying authority under Environmental Planning and Assessment Act 1979 – whether made in trade or commerce.

Larsson & Anor v Dudney & Anor [2018] QCA 250
Appeal dismissed. TRADE AND COMMERCE – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – WHAT CONSTITUTES – where the respondents purchased a motor catamaran from the appellants – where the vessel seemed satisfactory, until a year later, when a starboard engine failed – where it was then discovered the vessel had an unrevealed history of engine failures – where the respondents commenced proceedings contending that the appellants had engaged in misleading or deceptive conduct – where it was submitted on appeal that there was no finding made by the learned primary judge of misleading or deceptive conduct on the part of the first respondent, only a finding of fraud – whether the learned primary judge erred.
MISLEADING OR DECEPTIVE CONDUCT GENERALLY – CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION – RELIANCE, INDUCEMENT AND CAUSATION – where the learned primary judge found that the respondents would not have entered into the contract to purchase the vessel if they were aware of its true history – where prior to the sale a sea trial was held and friends of the respondents attended in order to advise as to the purchase of the vessel – where it was found that representations made by the appellants to one of the friends induced the respondents to enter into a contract of sale – where the appellants submitted that the finding made by the learned primary judge conflated the separate issues of reliance and causation and that reliance could not be established based on the evidence – where the evidence consisted solely of witness testimony – whether the learned primary judge incorrectly held that the respondents relied upon representations made by the appellants.
MISLEADING OR DECEPTIVE CONDUCT GENERALLY – CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION – SILENCE AND NON-DISCLOSURE – where the sale agent acting on behalf of the appellants knew of the history of the engine failures – where following the sea trial, he asked the respondents whether they had been told of a problem with the engines and failed to correct their belief that there had been an issue with only one engine – where it was submitted by the appellants that there was no evidence to substantiate a finding that there was a duty on the part of the agent to correct this misunderstanding – whether the learned primary judge erred in finding so.
APPEAL AND NEW TRIAL – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – where the appellants submitted that there was no reasonable evidentiary basis for several findings made by the learned primary judge – where evidence was accepted that the first appellant had said only one engine had been replaced due to engine mount issues which had been resolved – where the learned primary judge found that the history of the engine failures was such that it was not reasonable to think the change to the engine mounts had fixed the problem and to say so was reckless – where the appellants contended there was evidence to support such a belief but did not challenge the credibility findings – whether the learned primary judge erred.
Competition and Consumer Act 2010 (Cth), Sch 2 s 18

Jones v Aussie Networks Pty Ltd [2018] QSC 219
DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – IN GENERAL – where the first defendant operated an online investments and stock market discussion forum – where the first plaintiff was the director of the second plaintiff, which operated a stock trading business – where a user posted on the forum asking for 'thoughts, experiences and advice' regarding the second plaintiff – where the second defendant responded to the post – whether the second defendant's post was defamatory of the first plaintiff.
DEFAMATION – OTHER DEFENCES – HONEST OPINION – where the second defendant's post referred to, and was based upon, research that the second defendant had conducted – whether the defendants could rely on the defence of honest opinion.
DEFAMATION – PRIVILEGE – QUALIFIED PRIVILEGE – IN GENERAL – where the second defendant's post was aimed at providing information in response to the user's question – whether the defendants could rely on the defence of qualified privilege.
DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – IN GENERAL – where only a small number of people identified the first plaintiff in the second defendant's post – where the post did not cause the people who identified the first plaintiff to think less of him – whether the first plaintiff was entitled to damages for any defamation.
TORTS – MISCELLANEOUS TORTS – OTHER ECONOMIC TORTS – INJURIOUS FALSEHOOD – where the second defendant's post stated an incorrect fact about an entity related to the second plaintiff – whether the defendants had committed injurious falsehood – whether the plaintiffs were entitled to damages for any injurious falsehood.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – APPLICATION OF PROVISIONS TO PRESCRIBED INFORMATION PROVIDERS – where the first defendant operated an online forum – whether the post by the second defendant on that forum contravened s 18 of the Australian Consumer Law – whether s 19 of the Australian Consumer Law applied – whether the first defendant carried on the business of providing information – whether the second defendant's post had been in the course of carrying on a business of providing information.

Edge v The Trustee for the Springboard Recovery Unit Trust (Civil Claims) [2018] VCAT 1468
Provision of residential rehabilitation program services – alleged breach of consumer guarantee – whether service provider engaged in misleading or deceptive conduct.

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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