In the media
Action against BlueScope for alleged cartel
conduct
The ACCC has instituted civil proceedings in the Federal
Court against BlueScope Steel Limited (BlueScope) and its former
general manager sales and marketing, Mr Jason Ellis, for alleged
cartel conduct in relation to the supply of flat steel products
with agreements containing a price fixing provision (30 August
2019).
More...
Online publishing company and former director found
liable for misleading and deceptive statements
The Federal Court of Australia has found an AFSL holder
and its former director made misleading and deceptive statements
about an investment strategy targeting retired investors and
investors approaching retirement, said to mimic the performance of
the Australian Government's Future Fund (30 August 2019).
More...
Rural Funds Group to sue US short seller
In a release to the ASX the Rural Funds Group announced it
has instructed law firm Clayton Utz to commence legal action
against Bonitas for "misleading and deceptive conduct" as
a result. "The independent investigation conducted by EY
concludes that the assertions contained within the Document are not
substantiated (27 August 2019).
More...
Global shipping company, Wallenius Wilhelmsen Ocean AS,
charged with criminal cartel conduct
The CDPP has laid charges against Wallenius Wilhelmsen
Ocean AS (WWO), a Norwegian-based global shipping
company, alleging criminal cartel conduct. First mention is listed
for 29 August (23 August 2019).
More...
Advertisers need to act now in response to the
ACCC's Digital Platforms Inquiry
If the ACCC's recommendations are implemented, big
changes could be facing the advertising industry, advertisers need
to get ahead of the increased scrutiny and regulation. The
Australian Competition and Consumer Commission
(ACCC) is already flexing its muscles in respect
of misleading and deceptive conduct under consumer law (21 August
2019).
More...
Water filter cartridge business likely to have misled
customers
Saipol Technologies Pty Ltd (Saipol), a water filter
cartridges business, has acknowledged it was likely to have
breached the Australian Consumer Law (ACL) by
engaging in misleading or deceptive conduct and making false or
misleading representations regarding its water filter cartridges
(20 August 2019).
More...
Lawyers out as Pendolino demands $20 million over
development deal
Zoccali alleges misleading and deceptive conduct,
according to the letter from Horton to Tallawoladah seen by CBD,
which ended his plans to open a new eatery called Venetian Republic
in the refurbished Campbell's Store development at the Rocks
(20 August 2019).
More...
Opioid marketing scrutinised by TGA, questioned by
RACGP
The Therapeutic Goods Administration has confirmed it is
examining opioid marketing material aimed at GPs. Asked by Centre
Alliance Senator Stirling Griff whether the Government would close
what he dubbed a loophole allowing misleading marketing material
aimed at GPs, Senator Cash said that if such a loophole were
discovered, the Federal Health Minister would 'take the
appropriate action' (19 August 2019).
More...
Practice and regulation
New Gift Card Laws
The Australian Consumer Law (ACL) has
been amended to provide protections for gift card consumers across
Australia. With some exemptions, the ACL will: require minimum
three year expiry periods for gift cards; require gift cards to
display expiry dates; and ban most post purchase fees on gift
cards.
These changes apply to gift cards supplied to consumers on or after
1 November 2019.
Further information can be found in the
Explanatory Memorandum to the Treasury
Laws Amendment (Gift Cards) Act 2018 and the
Explanatory Statement to the Treasury
Laws Amendment (Gift Card) Regulations 2018.
ACCC Digital Platforms Inquiry Reminder
The
report contains 23 recommendations, spanning competition law,
consumer protection, media regulation and privacy law, reflecting
the intersection of issues arising from the growth of digital
platforms. Before a detailed Government response is provided a
further consultation process will take place. It will run for 12
weeks, after which the Government intends to release its response
(by the end of 2019). Further details to follow on
Digital Platforms page.
Cases
Eckford v Six Mile Creek Pty Ltd (No 2)
[2019] FCA 1307
TRADE PRACTICES – misleading or deceptive conduct
contrary to s 52(1) of Trade Practices Act 1974 (Cth)
– false or misleading representation concerning use to which
land capable of being put contrary to 53A(1)(b) of Trade
Practices Act 1974 (Cth) – whether vendor developer
misrepresented that lots were "sold" at particular prices
when contracts only exchanged and vendor believed purchasers would
not complete contracts for sale – whether developer
misrepresented that "sold" lots were burdened by building
covenants restricting height of building construction and
vegetation – where lots marketed as part of sale of estate
development – meaning of "sold" in real estate
marketing context where contract for sale exchanged but completion
had not occurred – whether applicant relied on
representations – whether representations were with respect
to a future matter under s 51A of Trade Practices Act 1974
(Cth) – where developer did not have reasonable grounds for
making representations as to future matters – contraventions
found – where injunctions could be ordered but not
appropriate because of impact on third parties – compensation
awarded under s 87(1) and (2) of Trade Practices Act 1974
(Cth)
TORTS – deceit – whether developer fraudulently
represented that lots were sold at particular prices – where
developer believed that contracts for sale of lots were not bona
fide and "dodgy" – where contracts conditional and
settlement of contracts extended – where nominal deposits in
contracts for sale were low and unpaid – measure of damages
awarded for tort of deceit
LIMITATION OF ACTIONS – whether commencement of period of
limitation for deceit postponed under s 38(1) of Limitation of
Actions Act 1974 (Qld) – where applicant enquired of
developer and its agent about whether neighbouring lots were sold
with burden of building covenants restricting height of buildings
and vegetation – where developer and its agent fraudulently
concealed true position that neighbouring lots were sold without
restrictions on building height or vegetation
LIMITATION OF ACTIONS – where applicant precluded by s 82(2)
of Trade Practices Act 1974 (Cth) from recovering damages
under s 82(1) – where applicant sought injunctions under s 80
but Court exercises discretion not to order – whether
compensation could be ordered under s 87(1) and (2) despite barring
of claim for loss or damage under s 82(2) where no limitation
period exists for commencing proceeding seeking injunctive or other
relief under ss 80 and 87 of Trade Practices Act 1974
(Cth)
Longjing Pty Ltd v Perpetual Nominees Limited
[2019] NSWSC 1098
2. Orders that there be judgment for the Cross-Claimant
against each of the Cross-Defendants in the sum of $252,936.
CONTRACTS – Construction – Principles –
Determining when Lease commenced pursuant to clauses within
"Agreement to Lease" and "Lease" –
Several potential dates for commencement of lease were submitted by
Defendant – Plaintiffs argued lease did not commence and no
Lease Commencing Date – Commercially unrealistic to conclude
that no lease had commenced in the light of the parties'
conduct
CONTRACTS – Unconscionable conduct – Misleading or
deceptive conduct – Whether Defendant's conduct in
terminating lease is unconscionable pursuant to meaning within s
46A of the Retail Shop Leases Act 1974 (Qld) or pursuant
to s 20 or s 21 of the Australian Consumer Law, or misleading or
deceptive conduct
CONTRACTS – Breach of contract – Parties entered into a
contract consisting of an Agreement for Lease and Lease of certain
premises – Whether Plaintiff in breach of contract –
Whether Defendant entitled to terminate lease
CONTRACTS – Breach of contract – Consequences of breach
– Right to damages – Quantum of damages agreed to by
the parties during course of hearing
Khabiya t/as Samso Wall Printing v Sachdeva &
Ors [2019] NSWDC
431
CONTRACT – supply of wall printing machinery –
breach of contract – existence of oral contract
–whether damage was caused. DAMAGES – breach of
warranty – loss of profits – cost of rectification
– reliance damages. TRADE PRACTICES – misleading or
deceptive conduct – whether pre-contractual representations
were made – whether the misrepresentations were false,
misleading or deceptive – whether statement about
"quality" of product actionable representation or
'puffery' – ancillary liability – whether agent
directly liable for any misrepresentation – whether agent can
only be liable as accessory for misleading or deceptive conduct
– reliance. ESTOPPEL– whether estoppel lies in respect
to verbal guarantee that is unenforceable for non-compliance with
requirement of writing
Harris v K7@Surry Hills Pty Ltd
[2019] VSC 551
PROPERTY LAW – Sale of land – Whether lawful
rescission or wrongful repudiation by purchaser –
Anticipatory breach by vendor of special condition in contract
– Purchaser lawfully rescinded contract – Koompahtoo
Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61;
(2007) 233 CLR 115.
PROPERTY LAW – Whether purchaser rescinded contract pursuant
to s 9AC(2) of the Sale of Land Act 1962 (Vic)
Claims: defendant engaged in misleading or deceptive conduct as to
the car parks and storage cages that the plaintiff was to be
provided under the contract of sale
Held: The plaintiff succeeds in his claim for a declaration that he
has validly rescinded the Contract and the return of the deposit of
$85,000 together with interest
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