In the media
Court finds Jayco misled a consumer but otherwise
dismisses ACCC's case
After finding that Jayco had made false or misleading
representations to one consumer, the Court dismissed the remainder
of the ACCC's case, finding that Jayco did not make false or
misleading representations to the three other consumers or act
unconscionably towards the four consumers. The Court found that the
caravans purchased by the consumers were not of acceptable quality,
and that defects in three of the caravans were major (20 November
2020).
More...
Peters allegedly hindered or prevented competition in
ice-cream supply
The ACCC has instituted Federal Court proceedings against
Australasian Food Group Pty Ltd, trading as Peters Ice Cream
(Peters), alleging it engaged in conduct which hindered or
prevented competition for the supply of single-wrapped ice creams
to petrol and convenience retailers (20 November 2020).
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NIBA examines Hayne legislative package details
The National Insurance Brokers Association is examining a
legislative package tabled in Federal Parliament last week that
introduces reforms recommended by the Hayne royal commission around
add-on sales, hawking and claims handling (16 November 2020).
More...
Treasury moves to strengthen UCT protection regime
Unfair contract terms in standard form contracts will be
outlawed and courts given powers to impose civil pecuniary
penalties for contraventions, Treasury announced last week
following a public consultation on ways to improve protections for
small businesses and consumers (16 November 2020).
More...
Katy Perry faces a lawsuit from Australian designer
Katie Perry for alleged trademark infringement
Lawyers for Katy admit the Katy Perry brand is
"deceptively similar" to the Australian designer's
trademark. They allege that the designer's use of her trademark
is "contrary to law" and amounts to misleading or
deceptive conduct and unlawful passing off because consumers might
believe Katy is associated with the Australian designer's
clothing (14 November 2020).
More...
Allianz Australia issues statement amid class
action
On behalf of motorists, Maurice Blackburn is accusing the
insurer of having paid lucrative commissions to dealers in exchange
for promoting "unduly expensive" policies which the law
firm claims did not provide customer value. Additionally,
Watson's camp is pointing to alleged conduct that is said to
have been misleading or deceptive (19 November 2020).
More...
No copyright in upmarket Australian designer bags, court
rules
It is the distinctive neoprene tote that spawned countless
copycats, but the Federal Court has ruled Australian brand State of
Escape's bag is not protected by copyright law. But the brand
was able to crack down on misleading marketing claims made by a
business claiming to be "home to the famous neoprene
totes"(13 November 2020).
More...
Motor dealer fined $15,000 after misleading buyers
A Runaway Bay motor dealer has been ordered to pay $15,000
in fines after prosecution by the Office of Fair Trading (OFT) for
misleading car buyers and failing to supply the vehicles. Fair
Trading Executive Director Brian Bauer said it was completely
unacceptable for a dealer to purport to sell the same car to
multiple consumers (11 November 2020).
More...
Choice hands Shonky awards to InvoCare funerals and
Harvey Norman's partnership with Latitude Finance
Allegations of questionable credit practices, unclear
funeral pricing and deceptive sales tactics have put five products
and businesses in the firing line of this year's Shonky awards
(10 November 2020).
More...
Health survey sales tricks hurt older Australians:
CHOICE Shonkys
Revitalife has received a CHOICE Shonky award for
targeting older Australians with a misleading "health
survey" and selling expensive "therapeutic" beds
with questionable benefits, and believe Revitalife has breached the
Australian Consumer Law by engaging in misleading and deceptive
conduct (09 November 2020)..
More...
Save money when grocery shopping
Consumer Affairs Victoria is reminding Victorians an easy way to save money when grocery shopping is by comparing the price per unit of items. Director of Consumer Affairs Victoria said unit pricing allows consumers to quickly and accurately compare the cost and value of grocery products. More information on unit pricing and where to locate it on different packages can be found on the Grocery unit prices page on the ACCC website (09 November 2020). More...
Funeral insurer accused of targeting vulnerable
Aboriginal communities now facing deceptive conduct charge
A company accused of misleading vulnerable Aboriginal
people to sell low-value funeral insurance, including cover for
children and babies, is now being sued by the Australian corporate
regulator for allegedly deceptive conduct (08 November 2020).
More...
Practice and regulation
ACCC Note: Screen scraping warnings not
anti-competitive
The ACCC, responding to questions on notice as part of a
parliamentary inquiry by the
Senate Select Committee on Financial Technology and Regulatory
Technology, said that "statements or warnings regarding
potential security or safety risks associated with screen scraping
and sharing passwords does not appear to have the purpose or effect
of substantially lessening competition." On 24 April 2020, the
reporting date was extended from the first sitting day in October
2020 to 16 April 2021.
Cases
Aardwolf Industries LLC v Tayeh
[2020] NSWCA 301
NEGLIGENCE – duty of care to avoid economic loss
– whether vulnerability required – applicants pleaded
vulnerability as an essential element of duty – no obligation
on primary judge to consider alternatives to that position –
no relevant vulnerability due to applicants' ability to protect
themselves from consequences of liquidators' actions CONSUMER
LAW – misleading or deceptive conduct – whether
reliance on accuracy of recitals to deed – clear inference
from evidence that person knew of true position CONSUMER LAW
– misleading or deceptive conduct – whether conduct
"in trade or commerce" – court-appointed
liquidators performing statutory functions – assignment of
property with view to facilitating business interests of purchaser
arguably had an essentially trading or commercial character
CORPORATIONS – leave to commence action against
court-appointed liquidators – governing principles –
relevance of lengthy and inadequately explained delay
Wormald v Maradaca Pty
Ltd [2020] NSWCA
289
(1) Appeal and cross-appeal allowed.
MISLEADING OR DECEPTIVE CONDUCT – Misleading or deceptive
conduct – misleading or deceptive conduct by silence -
alleged non-disclosure relating to sale of shares in private
company – where purchaser was an experienced commercial
participant – whether primary judge erred in characterising
specific representation as providing an "assurance" to
the purchaser of shares in private company – whether primary
judge erred in finding that the purchaser had a "reasonable
expectation" that certain disclosures would be made –
whether any misleading or deceptive conduct was causative of loss
or damage – where as a matter of common sense causation, loss
sustained was due to a calculated risk by an experienced commercial
participant, and not by any alleged misleading or deceptive
conduct
Civil Procedure Act 2005 (NSW) s 100
Competition and Consumer Act 2010 (Cth) sch 2 – Australian
Consumer Law s 18
Trade Practices Act 1974 (Cth) s 52
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.