In the media
Court finds Captain Cook College acted unconscionably
and misled students
The Federal Court has found that Productivity Partners Pty
Ltd, trading as Captain Cook College, engaged in a system of
unconscionable conduct and made false or misleading representations
to prospective students in relation to online diploma courses
following contested proceedings (02 July 2021).
More...
Nine Entertainment pays penalties for alleged excessive
payment surcharges
Six subsidiaries of Nine Entertainment Co have paid
penalties totalling $159,840 after the ACCC issued them with 12
infringement notices for allegedly charging subscribers and
advertisers excessive payment surcharges (02 July 2021).
More...
Charges brought against director of Club Culture
Victoria Renee Ingrid Larsen of Aberfoyle Park, SA, has
been charged with two counts of exercising power as a director of a
company while it was in liquidation and making a false or
misleading statement in a document lodged with ASIC (30 June 2021).
More...
Hayne's 'norms of conduct' could fall
short
Among the issues that received broad support across the
more than 130 lawyers, academics, industry bodies, financial
services providers and other participants to the inquiry was the
move to principles-based regulation, and the fact that principles
"on their own" had the potential to create legal grey
areas. These were to obey the law, and included not mislead or
deceive, act fairly (30 June 2021).
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Sumo Power to pay $1.2 million for misleading
electricity plans
The Federal Court has declared by consent that Sumo Power
Pty Ltd made false or misleading representations in selling
electricity plans to Victorian consumers and ordered it to pay $1.2
million in penalties, and to pay consumer redress to affected
consumers (30 June 2021).
More...
Court dismisses ACCC case against NSW Ports
The Federal Court has dismissed the ACCC's proceedings
against NSW Ports Operations Hold Co Pty Ltd and its subsidiaries.
This judgment provides an enormous hurdle for the Port of Newcastle
to develop a container terminal to compete with Port Botany and
Port Kembla, because of financial consequences arising from the
Deeds. Less competition usually results in higher charges for
businesses and consumers (29 June 2021).
More...
Unlicensed mortgage lender issued court orders
ASIC has moved to shut down an unlicensed mortgage lender,
alleging misleading or deceptive conduct. ASIC said that in
response to the coronavirus pandemic's impact on the financial
system and the potential for harm that this has created, it has
implemented a set of pandemic-related enforcement priorities that
guides its response to misconduct (28 June 2021).
More...
ASIC obtains Federal Court orders against Remedy
Housing
ASIC has moved to shut down an unlicensed mortgage lender
that appears to have been engaging with customers primarily from
the Pacific Islander community in Australia and New Zealand. ASIC
has alleged that the Defendants and Remedy Housing are making false
or misleading representations regarding financial services and
financial products that involve interest in land (25 June 2021).
More...
Grape Co Australia fined by ACCC for misleading
consumers about fruit origins
A Victorian table grape trader has been fined close to
$35,000 for claiming all of its grapes were handpicked on the
company's family farm in Sunraysia (22 June 2021).
More...
Honda raises prices across most models, as fixed-pricing
rolls out from July 1
Almost every Honda new car will be more expensive for
Australian buyers when its new fixed-price business model is
introduced. As part of the changes, from July 1, 2021 Honda will
move to nationwide fixed pricing.
As previously reported expert analysts have noted a shift to
fixed-price business models will likely lead to higher prices (22
June 2021).
More...
Cases
Australian Competition and Consumer Commission v
Productivity Partners Pty Ltd (trading as Captain Cook College) (No
3) [2021] FCA 737
CONSUMER LAW – unconscionable conduct –
statutory unconscionability under s 21 of the Australian Consumer
Law – systemic unconscionability – meaning of
unconscionability – unconscionable in all the circumstances
– where a system weakened safeguards to consumers in order to
increase enrolments at a vocational education and training
(VET) college – where the system was
compared to the system that existed prior to its implementation
– where the college did not cancel the enrolment of consumers
in online VET courses it had not had any contact with before the
census date which triggered the payment of fees by the Commonwealth
and a debt by the consumer to the Commonwealth – where
numbers and revenue increased dramatically – where
significant numbers and proportion of students had no contact with
the college and gained no value from enrolment but incurred
substantial debts
CONSUMER LAW – misleading and deceptive conduct and
representations under s 18 and 28 of the Australian Consumer Law
– misleading or deceptive conduct in trade or commerce
– false or misleading representations about goods or services
– where college provided online VET courses and engaged
recruiters to market its courses direct to consumers –
whether recruiters made misleading or deceptive representations to
specific consumers – where free laptops offered as inducement
to enrol – where true cost of enrolling misrepresented
CONSUMER LAW – unsolicited consumer agreements under ss 69,
78-79 of the Australian Consumer Law – whether enrolment of
consumers in online VET courses was by way of "unsolicited
consumer agreements" – whether consent was given by
consumers – threshold for consent to receive documentation
– unsolicited consumer agreements and certain requirements
regarding the agreement and its contents – formation of
unsolicited consumer agreement
CONSUMER LAW – "knowingly concerned" under s 224 of
the Australian Consumer Law – requirements with regard to
knowledge and participation – where the fourth respondent was
COO of the second respondent, which owned all the shares in the
first respondent, was also acting CEO of the first respondent
– whether the fourth respondent was knowingly concerned in
the conduct of the first respondent
CONSUMER LAW – conduct "on behalf of" a body
corporate under s 139B of the Competition and Consumer Act 2010
(Cth) – whether knowledge and conduct of the fourth
respondent to do with the first respondent, the college, including
as its acting CEO is attributed to the second respondent of which
he was COO – attribution of conduct of an officer or employee
of a subsidiary to a parent company – whether conduct of
external recruiters is attributed to the VET college –
conduct of an authorised class
Capic v Ford Motor Company of Australia Pty
Ltd [2021] FCA 715
CONSUMER LAW – representative proceedings –
guarantee of acceptable quality in s 54 Australian Consumer Law
– where 73,451 vehicles supplied in Australia with DPS6 dry
dual clutch transmission – allegation transmission
non-compliant with s 54 guarantee due to real risks of failure
arising from four component and two architectural deficiencies
– where failure manifests in range of undesirable symptoms
including vehicle shudder – where Respondent introduced
revised versions of three of four original components – where
Respondent submitted some symptoms are 'normal operating
characteristics' of the vehicles – where component
deficiencies interrelated with transmission's architecture
-– where Applicant alleged transmission control module
failure a safety issue
CONSUMER LAW – representative proceedings – CONSUMER
LAW – where Respondent replaced failed components under
warranty
CONSUMER LAW – representative proceedings –allegation
of misleading or deceptive conduct based on implied representations
arising from marketing of vehicles – where no link to
knowledge of Respondent – where express representation
alleged to be on Respondent's website – where no evidence
as to context of representation
EVIDENCE – REPRESENTATIVE PROCEEDINGS –DAMAGES
–
PRACTICE AND PROCEDURE – where Respondent objected to
Applicant's reliance on certain documents discovered in US
proceedings – where documents tendered at end of trial and
not part of particularised case – whether reliance
procedurally fair in light of notice given
Competition and Consumer Act 2010 (Cth) s 82, Sch 2 ss 2, 4, 7(e),
18, 33, 54, 59(1), 259, 271, 272, 273, 274
Australian Competition and Consumer Commission v Sumo
Power Pty Ltd [2021] FCA
712
COMPETITION – penalties to be imposed for admitted
contraventions of the Australian Consumer Law
(ACL) at Schedule 2 of the Competition and
Consumer Act 2010 (Cth) – where proposed declarations
precisely identify contravening conduct and include a sufficient
indication of how and why that conduct is a contravention of the
ACL – where the relatively small size of the contravener is
material
In the period from 4 June 2018 to 31 December 2018 (the Relevant
Period), the respondent, in trade or commerce: (a) engaged in
conduct that was misleading , deceptive and likely to mislead or
deceive in contravention of s 18(1) of the Australian Consumer Law
at Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the
ACL.
Ali v Australian Competition and Consumer
Commission [2021] FCAFC
109
CONSUMER LAW – appeal from a decision of the primary
judge that the appellants were knowingly concerned in
contraventions of s 18 of the Australian Consumer Law – where
representations made to prospective franchisees created the overall
impression that franchisor intended to charge in a particular way
– where overall impression was false and misleading as to the
franchisor's intentions as to the way it would charge
–whether evidence of six franchisees could be extrapolated so
as to find that representation was made to all prospective
franchisees – appeal dismissed
CONSUMER LAW – appeal from a decision of the primary judge
that the appellants were knowingly concerned in contraventions of s
21 of the Australian Consumer Law and contraventions of cl 6 of the
Franchising Code of Conduct – where appellants were director
and national franchising manager of company – whether company
engaged in unconscionable conduct and did not act in good faith by
its charging practices – where franchisees were charged in
staged payments and told these payments would be for the set-up and
fit-out of franchise – where payments were instead applied to
meet general expenses of the company and pay commissions –
whether evidence of six franchisees could be extrapolated to all
prospective franchisees – whether primary judge could make
findings of fact relied upon to find unconscionable conduct –
whether a system of systematic dishonest conduct sufficient to
establish unconscionability – whether finding of
unconscionable conduct illogical – appeal dismissed
CONSUMER LAW – appeal from a decision of the primary judge
that the appellants were liable to pecuniary penalties,
injunctions, disqualification and redress – where penalties
imposed exceeded single statutory maximum – whether
appellants engaged in one system of conduct or a series of dealings
with consumers – whether penalties were manifestly excessive
– where primary judge ordered that a trust fund be created
for consumer redress to be administered by an accountant under
Court supervision – whether redress orders beyond power
– whether quantum of funds to be contributed to redress fund
arbitrary, inappropriate or manifestly excessive – whether
disqualification orders were manifestly excessive – appeal
dismissed
Competition and Consumer Act 2010 (Cth) ss 51ACB, 51ADB, 51AE
Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian
Consumer Law) ss 20–22, 29, 37, 224, 239–241, 243
Competition and Consumer (Industry Codes - Franchising) Regulation
2014 (Cth) Schedule 1 (Franchising Code of Conduct) cl 6
Delaney v Delaney [2021] VSC
365
CONTRACT – Heads of Agreement for sale of units and
shares – whether concluded binding agreement or subject to
more formal agreement – Category (iii) in Masters v
Cameron considered – construction of provisions of the
Heads of Agreement – whether uncertainty of provisions meant
no concluded binding agreement and/or unenforceable –
construction of clause that 'it is proposed [that taxation and
accounting implications] would be settled by [each party's
accountant] in a mutually beneficial taxation outcome' –
clause gave opportunity for accountants to agree a mutually
beneficial outcome exercising independent judgment in good faith
and not acting on direction of their clients or solely in the
interests of their clients – no relevant uncertainty in
provisions – concluded binding agreement.
MISLEADING CONDUCT – Competition and Consumer Law Act 2010
(Cth) sch 2 ('Australian Consumer Law') (s 18) (s 4)
– representations as to turnover and profitability of
business – whether representations made relate to future
matters – alleged falsity of representations as to turnover
and profit – pleading requirements – whether current
representations made –whether representations false or
misleading – no falsity established – many
representations superseded by further information about turnover
and profit.
EQUITY – unconscionable conduct – whether party under
special disadvantage due to various factors – no special
disadvantage established – in any event, no unconscientious
advantage taken – party has independent legal and accounting
advice.
Dessco Pty Ltd as Trustee for the Alexandria
Superannuation Fund Trust t/as Vogue Signs v Davey (Building and
Property) [2021] VCAT
664
Retail lease; claim for arrears of rent and outgoings and
damages for breach of lease by landlord; tenant counterclaimed
relying on different lease alleging landlord repudiated the lease,
engaged in misleading and deceptive conduct and unconscionable
conduct; Retail Leases Act 2003.
Barodawala v Perinparajah [2021]
VSC 387
BANKRUPTCY AND INSOLVENCY – whether debt incurred by
means of fraud – actual fraud – Power v Kenny
[1977] WAR 87 applied – SJD Marketing Pty Ltd v Venn
[2018] VCC 2129 distinguished – Chittick v Maxwell
(1993) 118 ALR 728 distinguished – Bankruptcy Act 1996 (Cth)
ss 82, 83, 153.
PRACTICE AND PROCEDURE – application to set aside warrant of
execution – amounts in the warrant were erroneous –
warrant issued irregularly – Supreme Court (General Civil
Procedure) Rules 2015 (Vic) rr 68.02(1)(a), 68.02(3).
2 At trial, the plaintiff alleged the defendant, in her capacity as
sole director of Sterco International Pty Ltd (ACN 118 837 924)
(Sterco), was a person involved in Sterco's
misleading and deceptive conduct . The NSWSC gave judgment for the
plaintiff in the sum of $127,591.90 and ordered the defendant pay
the plaintiff's costs ('NSW judgment').
Legislation
Commonwealth
Competition
and Consumer Amendment (Motor Vehicle Service and Repair
Information Sharing Scheme) Act
2021
Assented 24 June 2021 - Act No. 54 of 2021
Division 1—Objects of Part and simplified outline
57AA The objects of this Part are to: (a) promote competition
between Australian repairers of passenger and light goods motor
vehicles and establish a fair playing field by mandating access, on
fair and reasonable commercial terms, to information used to
diagnose, repair, service, modify or dismantle scheme vehicles.
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.
