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 – 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 âe" 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.