In the media
Federal Court Imposes A$57.5m Penalty Against NAB
Units
NULIS Nominees and MLC Nominees admitted to misleading or
deceptive conduct, false or misleading representations, and
breaches of the ASIC Act and Corporations Act. Australia's
Federal Court has imposed a penalty of AUD 57.5 million (USD 42
million) against National Australia Bank (NAB)
units NULIS Nominees and MLC Nominees for charging fees for
services not provided to hundreds of thousands of superannuation
customers (14 September 2020).
More...
Rio Tinto boss and top executives step down following
destruction of Aboriginal Juukan Gorge rock shelters
A parliamentary inquiry is investigating the sequence of
events leading up to the caves' destruction, Rio's
decision-making process and oversight by the West Australian
government. The committee wants to question Rio's outgoing
executives on their previous appearance at the inquiry, after Mr
Entsch raised concerns that misleading evidence had been given (12
September 2020).
More...
Mobile apps market under scrutiny
The ACCC will be examining the experiences of Australian
consumers, developers, suppliers and others in a new report
scrutinising mobile app stores. Issues to be examined include the
use and sharing of data by apps, the extent of competition between
Google and Apple's app stores, and whether more pricing
transparency is needed in Australia's mobile apps market (08
September 2020).
More...
ASIC bans crypto scammer
ASIC has banned a former national representative of a
cryptocurrency investment scheme from financial services for seven
years, after it was found he engaged in misleading or deceptive
conduct (04 September 2020).
More...
Dozens of Australian companies fined for trying to
unlawfully profit from Covid crisis
Australia's health regulator has issued more than
$800,000 in fines for misleading advertising or illegally importing
health products (06 September 2020).
More...
Competition agencies to coordinate on cross-border
investigations
The Multilateral Mutual Assistance and Cooperation
Framework for Competition Authorities (MMAC), was
signed virtually by the US Department of Justice, US Federal Trade
Commission, the UK Competition and Markets Authority, the New
Zealand Commerce Commission, the Competition Bureau Canada and the
ACCC effective from on 2 September 2020 (03 September 2020).
More...
Crown board's full-page advertisement
'misled' stock exchange
The board of Crown Resorts misled investors in a release
to the market and newspaper advertisement last year that claimed
its most infamous high-roller gambling partner, Suncity, was
controlled by a regulated Hong Kong firm (03 September 2020).
More...
ACCC issues statement on Facebook
ACCC states Facebook's threat to prevent any sharing
of news on its services in Australia is ill-timed and misconceived.
The draft media bargaining code aims to ensure Australian news
businesses, including independent, community and regional media,
can get a seat at the table for fair negotiations with Facebook and
Google (01 September 2020). More...
Ex BlueScope general manager pleads guilty to
obstructing cartel investigation
Former general manager of sales and marketing at BlueScope
Steel Limited, Jason Ellis, has entered a guilty plea to 'one
charge of inciting the obstruction of Commonwealth public officials
in the performance of their functions' (01 September 2020).
More...
Cases
Australian Securities and Investments Commission v MLC
Nominees Pty Ltd [2020] FCA 1306
CORPORATIONS – admitted contraventions of the
Corporations Act 2001 (Cth) and the Australian Securities and
Investments Commission Act 2001 (Cth) (ASIC Act)
related to the charging and deductions of fees and representations
about the right to charge fees from members of superannuation funds
– imposition of penalties pursuant to s 12GBA of the ASIC Act
– where quantum of penalties is contested. MLC Nominees in
trade or commerce engaged in conduct in relation to financial
services that was misleading or deceptive or was
likely to mislead or deceive and thereby contravened s 1041H of the
Corporations Act and s 12DA of the ASIC Act - order that
MLC Nominees pay a pecuniary penalty of $22.5 million for its
contraventions of s 12DB of the ASIC Act in respect of no-adviser
members and a penalty of $27 million for its contraventions of 12DB
in respect of linked members,
Australian Securities and Investments Commission v Rent 2
Own Cars Australia Pty Ltd [2020] FCA
1312
CONSUMER LAW – consideration of whether the
National Consumer Credit Protection Act 2009 (Cth) (NCCP
Act) and the National Credit Code (the
Code), Schedule 1 to the NCCP Act, apply to 232 contracts
for the provision of credit in the form of hire purchase style
contracts – consideration of whether the contracts are credit
contracts – consideration of the elements of provision of
credit – consideration of the construction to be attributed
to each of the subsections of s 9 in the context of the statutory
purpose
CONSUMER LAW – consideration of the following provisions of
the NCCP Act: ss 3, 5, 7, 8, 29, 47, 64, 65, 71, 166, 168, 169,
177, 187 – consideration of the following provisions of the
Code: ss 3, 4, 5, 6, 9, 17, 23, 32A, 32B, 111, 112, 113, 116, 122,
124, 204
CONSUMER LAW – consideration of whether conduct said to
engage contraventions of the Code also engages contraventions of
the Australian Securities and Investments Act 2001 (Cth)
(the ASIC Act) – consideration of ss
12DA(1), 12DB(1)(a), 12DB(1)(g), 12BAA(7), 12BAB(1) of the ASIC Act
– consideration of the terms "standard, quality, value
or grade" in s 12DB(1)(a) of the ASIC Act
STATUTORY CONSTRUCTION – consideration of the principles to
be applied – consideration of provisions of the NCCP Act and
the Code – consideration of whether the directors of the
respondent corporation were knowingly concerned in the
contraventions of the Code by the respondent corporation and
whether they were knowingly concerned in the respondent
corporation's contraventions of the ASIC Act –
consideration of s 12GBA(1)(e) of that Act – consideration of
the principles derived from Yorke v Lucas [1985] HCA 65; (1985) 158
CLR 661 – consideration of the state of knowledge that must
be shown to exist in the relevant person before such a person is
knowingly concerned in the contraventions of another –
consideration of authorities of intermediate courts of appeal
applying principles of accessorial liability under the statutory
text in issue
Glencore Coal Assets Australia Pty Ltd v Australian
Competition Tribunal [2020] FCAFC
145
COMPETITION – applications for review of decision of
the Australian Competition Tribunal (Tribunal)
reviewing decision of the Australian Competition and Consumer
Commission (ACCC) – where ACCC made an
arbitration determination pursuant to s 44S of Competition and
Consumer Act 2010 (Cth) (CCA) – where
Tribunal conducted a "re-arbitration" pursuant to s 44ZP
of the CCA – where declared service is the right to access
and use monopoly infrastructure assets at Port of Newcastle –
where access dispute concerns quantum of charges levied for access
and use of declared service and proper scope of application of such
charges – whether Tribunal erred in determining how declared
service is to be interpreted and appropriate scope of application
of arbitration determination – whether scope can be justified
by reference to the underlying State legislation being the Ports
and Maritime Administration Act 1995 (NSW) – where parties
agreed to use building block model and depreciated optimised
replacement cost methodology to calculate regulated asset base
– whether Tribunal erred in deciding that contributions of
service users should not be deducted when calculating regulated
asset base – meaning of "extensions" in s 44X(1)(e)
of the CCA – application of pricing principles in s 44ZZCA
and criteria in s 44X(1) of the CCA – whether assessment is
forward-looking – appropriate relief – whether matter
should be remitted to Tribunal pursuant to s 44ZR(4) of the
CCA
ADMINISTRATIVE LAW – application for judicial review of
decision of the Tribunal by ACCC – where ACCC made
arbitration determination pursuant to s 44S of CCA – where
Tribunal conducted a "re-arbitration" pursuant to s 44ZP
of the CCA – where ACCC sought declaration that Tribunal
erred – whether ACCC can seek review pursuant to s 163A(3) of
the CCA
Explorer Pty Ltd t/as I&D Industries v System Logix
Pty Ltd [2020] NSWSC 1198
CONTRACT – Whether representations misleading
and deceptive under Australian Consumer Law, s 18 – Where
some of the representations were mere puffs – Where some
representations were false – Whether Plaintiff entitled to
damages under Australian Consumer Law, s 236 – Whether
Defendant involved in making false representation under Australian
Consumer Law, s 2 – Where Defendant did not know
representations were false at the time they were made
PRACTICE AND PROCEDURE – Admissions – Where
Defendants/Cross-claimants repeated Plaintiff's claims in their
cross-claim against third party – Held not an admission
EVIDENCE – Expert evidence – Where expert did not
personally conduct inspection – Where expert report based on
photographs taken by others
Norcross Pictorial Calendars Pty Ltd v Central Coast
Council [2020] NSWSC
1201
Plaintiffs entitled to damages; Council's claim for
misleading or deceptive conduct to be dismissed
CONTRACTS – joint venture to develop Council's land into
car park and residential-commercial development CONTRACTS –
parties – whether second plaintiff a successor to first
plaintiff and able to sue under joint venture agreement
CONSUMER LAW – misleading or deceptive conduct –
whether first plaintiff's failure to provide Council with
geotechnical report prior to entry into joint venture agreement was
misleading or deceptive – whether warranties and indemnities
in joint venture agreement should be declared void
Trade Practices Act 1974 (Cth)
Luben Petkovski v Kai Yin Huang (No.
4) [2020] NSWSC 1182
Orders for interest and costs made.
INTEREST - interest up to judgment – loss of opportunity
– compensation awarded to cross-claimants on the basis of a
market valuation of real property as at the date of hearing
including capital gains up to that date – property income
producing – whether pre-judgment interest should be
awarded.
COSTS - claim and cross-claim – mixed result on some claims
in the proceedings – some claims took substantially more time
than other claims – whether one party was substantially
successful – what is an appropriate cost order in the
circumstances.
In the Court's first judgment the Huangs were held to be
substantially successful in establishing their claims for
unconscionable conduct, misleading and deceptive conduct and
economic duress against the cross-defendants.
Gallagher
v Associated Equipment Pty Ltd [2020] QCA
183
APPEAL AND NEW TRIAL – PROCEDURE –
QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT
– BY LEAVE OF COURT – where the applicant seeks leave
pursuant to s 118(3) of the District Court of Queensland Act 1967
(Qld), to challenge a judgment that found him to have caused loss
by engaging in misleading or deceptive conduct – where the
relevant conduct was the provision of a tax invoice by Evolution
Piling Pty Ltd, of which the applicant was the director, which was
held to have falsely represented that there had been an
unconditional sale of four pieces of drilling equipment –
where leave to appeal is granted as a matter of discretion and
usually only where: (i) there is an important point of law or
question of general or public importance, and (ii) there is a
reasonable argument that there is an error to be corrected, because
it is necessary to correct a substantial injustice to the applicant
– whether leave to appeal should be granted
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER
PROTECTION LEGISLATION – CONSUMER PROTECTION –
MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS –
where the learned trial judge made two central findings: (a) the
Evolution tax invoice was misleading because it falsely represented
that there had been an unconditional sale of the equipment
effective to confer title on Slap; and (b) Mr Spong (and therefore
Associated) relied upon the Evolution tax invoice, and it caused
him to decide to have Associated purchase the equipment from Slap
and borrow money to facilitate that purchase – where the
appeal seeks to challenge those two findings – whether those
grounds of appeal lack merit
District Court of Queensland Act 1967 Qld s 118(3)
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