In the media
Aged care provider Estia Health taken to Federal Court
in class action
Allegedly, Estia's conduct caused its share price to
trade at a price substantially higher price than what would have
prevailed in a properly informed market and engaged in misleading
and deceptive conduct by maintaining its optimistic guidance
without any qualification or reasonable grounds (18 July 2019).
More...
Dodo and CovaU to refund customers and pay penalties
over energy discount claims
M2 Energy Pty Ltd (Dodo) and CovaU Pty
Ltd (CovaU) have paid penalties totalling $37,800
and $12,600 respectively. The ACCC considered both businesses made
false and misleading claims about percentage discounts consumers
would receive because those discounts applied to Dodo and
CovaU's market offer rates (18 July 2019).
More...
Uber Eats amends its contracts
Uber Eats has committed to changing its contracts with
restaurants following an investigation by the ACCC for making
restaurants responsible and financially liable for elements outside
of their control (17 July 2019).
More...
Simple fixes could help save Australian consumers from
up to $3.6 billion in 'loyalty taxes'
Complicated pricing structures often make it hard for
consumers to compare quotes to see if one deal is better than
another. Companies can get away with making large price increases
over successive renewals with little fear a customer will switch.
This practice is deceptive and falls short of community
expectations. Greater respect for loyal customers is something the
Hayne Royal Commission said financial institutions should have
better regard for (16 July 2019).
More...
Vodafone to compensate customers over 'direct
carrier billing' charges
Vodafone has admitted to making false or misleading
representations about its third-party Direct Carrier Billing
(DCB) service and will contact and refund impacted
consumers, following an ACCC investigation. Vodafone admitted that
it likely breached the ASIC Act from at least 2015, by charging
consumers for content they had not agreed to buy or had purchased
unknowingly (16 July 2019).
More...
Electricity prices on the rise despite re-regulation of
the market
The Federal Government's tentative steps towards
re-regulating the retail energy market have seen power prices rise
and competitive pressure between rival suppliers ease (15 July
2019).
More...
Land-banking scam ends up in Supreme Court
A law firm and two of its principal lawyers were allegedly
at the heart of one of Australia's largest land-banking were
negligent, engaged in misleading and deceptive conduct, Supreme
Court documents claim (12 July 2019).
More...
'Pitiful payouts' from 'junk' credit
insurance sold by major banks with loans and credit cards
Australians are getting "extremely poor value for
money" on their consumer credit insurance
(CCI), according to the corporate regulator's
frank and scathing assessment of the industry, including
"unfair", "high-pressure" sales tactics, often
from salespeople over the phone. ASIC Commissioner Sean Hughes said
an inevitable consequence of these widespread failings and
mis-selling practices will involve ASIC taking significant
enforcement action (11 July 2019).
More...
Dodo to refund $360,000 over NBN streaming claims
Dodo Services Pty Limited (Dodo) has
agreed to refund to around 16,000 customers for claims that its
entry-level NBN broadband plans were 'perfect for
streaming'. The refunds are part of a court-enforceable
undertaking made to the ACCC after Dodo admitted its conduct was
likely to be false or misleading and in contravention of the
Australian Consumer Law (10 July 2019).
More...
Pharma giant using loophole to falsely promote opioid
pain relief product across Australia
Pain specialist says Mundipharma distributed misleading
brochure on strong pain medications to GPs. The company avoided
scrutiny because it opted out of Australia's self-regulatory
system and the TGA can't act because false advertising laws
exclude marketing to GPs (10 July 2019).
More...
Practice and Regulation
Current Senate Inquiries July 2019 - Environment and
Communications Legislation Committee
Competition
and Consumer Amendment (Prevention of Exploitation of Indigenous
Cultural Expressions) Bill 2019
Residential time of use electricity pricing in NSW
Phillip Toner; The Australia Institute: 08 July 2019
Australian energy companies and regulators claim that introducing
'time of use' pricing will benefit consumers and move their
consumption to times when the network is less congested. More...
Cases
Lucas Earthmovers Pty Limited v Anglogold Ashanti Australia
Limited [2019] FCA
1049
CONTRACTS – Applicant contracted with the
Respondents to construct an access road to a remote mine site
– various matters led to the incurring of additional costs
and to construction delays – claim for damages for breach of
contract - claim for payment of the time-related costs incurred by
the Applicant in respect of additional work – claim for other
consequences of the additional time taken and the additional work
– claim for payment of variations.
Held: claim for the time-related costs fails but other aspects of
the breach of contract claim succeed in part.
CONSUMER LAW – claims of misleading or deceptive conduct
contrary to s 18 of the Australian Consumer Law – claim that
in entering into the contract the Applicant relied on four
representations made by the Respondents which were misleading or
deceptive – claim that if the representations had not been
made the Applicant would not have entered into the contract at all
or, alternatively, would have entered into a contract on schedule
of rates terms which assigned the risk and cost of additional work
and delay to the Respondents – Applicant did not prove that
the representations were made or that they were misleading or
deceptive – Applicant did not prove that it relied on the
pleaded representations in entering into the contract –
Applicant did not establish loss by reason of the alleged
misleading or deceptive conduct.
Held: contraventions of s 18 of the ACL not made out.
Australian Consumer Law ss 18, 236; Competition and Consumer
Act 2010 (Cth) Sch 2; Evidence Act 1995 (Cth) ss 69,
81; Trade Practices Act 1974 (Cth) s 82
Luo v Windy Hills Australian Game Meats Pty Ltd (No
3) [2019] NSWSC
862
CONTRACTS – breach of contract – consequences
of breach – right to damages – contract for sale of
goods – goods never delivered – total failure of
consideration – defendant vendor defrauded by third party
supplier – defendant vendor nonetheless liable to plaintiff
purchaser CONTRACTS – misleading conduct under statute
– misleading or deceptive conduct – representations
– defendant falsely represented it had a present ability to
supply beef omasum – plaintiff paid contract sum in reliance
– containers of packing salt delivered EQUITY – trusts
and trustees – resulting trusts – Quistclose trusts
– no Quistclose trust established where no mutual intention
that plaintiff's money would not become part of the first
defendant's assets
Competition and Consumer Act 2010 (Cth); Convention on
Contracts for International Sale of Goods, opened for signature 11
April 1980, 1489 UNTS 3 (entered into force 1 January 1998)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW);
Trade Practices Act 1974 (Cth)
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