In the media
Stone & Wood revives Byron Bay labeling
controversy
Stone & Wood's use of a third-party brewery to
facilitate its entry into the contemporary beer market has revived
the contentious issue of transparency in labeling for beers made
under contract. Alcohol labeling in Australia is governed by a raft
of unrelated but interlocking regulatory requirements designed to
protect consumers from a food safety perspective and false and
misleading claims (09 September 2021).
More...
Bathroomware brand Nero admits to likely resale price
maintenance
Bathroomware brand, Nero Bathrooms International Pty Ltd,
trading as Nero Tapware, has admitted it was likely to have engaged
in resale price maintenance by withholding supply of its products
from a small independent building supplies retailer when that
retailer failed to raise its advertised prices (08 September 2021).
More...
Allianz and AWP to pay $1.5m penalty over misleading
sale of travel insurance
Insurance giant Allianz and its related arm AWP Australia
(AWP) have been hit with a $1.5 million penalty by
the Federal Court following misleading sales of travel insurance
policies through Expedia websites, by failing to correctly state
how premiums were calculated and allowing insurance to be sold to
ineligible customers (07 September 2021).
More...
ASIC to go hard on super funds that overpromise
The Australian Securities and Investments Commission has
fixed a regulatory anomaly which was unjustifiably hindering full
AFSL-holders in delivering tax-exempt advice. Speaking at the AIST
Superannuation Investment Conference, Jane Eccleston, ASIC senior
executive leader for superannuation, said the regulator would act
if it saw false, misleading or deceptive conduct in these
disclosures (02 September 2021).
More...
Alex Gow Funerals pays penalty for allegedly misleading
consumers on funeral pricing
Funeral services provider Alex Gow Proprietary Limited
(Alex Gow Funerals) has paid a penalty of $13,320 after the ACCC
issued it with an infringement notice for allegedly making a false
and misleading representation about the price of its funeral
services and the fees that consumers are required to pay (02
September 2021).
More...
Cases
Allergan Australia Pty Ltd v Self Care IP Holdings Pty
Ltd [2021] FCAFC
163
TRADE MARKS – infringement claim pursuant to s 120
of the Trade Marks Act 1995 (Cth) – whether primary judge
erred in concluding that the respondents did not infringe the
appellant's BOTOX mark by using PROTOX as a trade mark –
whether primary judge erred in concluding that PROTOX was not
deceptively similar to BOTOX – held that PROTOX is
deceptively similar to BOTOX mark – infringement
established
TRADE MARKS – infringement claim pursuant to s 120 of the Act
– whether the respondents used the composite phrase
"instant Botox® alternative" as a trade mark –
whether "instant BOTOX® alternative" deceptively
similar to appellant's BOTOX marks – phrase was used as a
trade mark – phrase was deceptively similar to BOTOX mark
– whether comparative advertising "defence" under s
122(1)(d) of the Act available and established – meaning of
"comparative advertising – whether "defences"
under s 122(1)(b) and (c) and (e) of the Act available and
established – discussion of the nature of s 122
"defences" – defences not made out –
infringement established
CONSUMER LAW – misleading or deceptive conduct –
performance characteristics, uses or benefits –
representations as to period of time effect of treatment would last
– whether the use by the respondents of the phrase
"instant Botox® alternative", assessed in context,
conveyed a representation that the respondents' Inhibox product
would provide results which would, after treatment has ceased, last
about as long as treatment with Botox – contraventions of s
18, s 29(1)(a) and s 29(1)(g) Australian Consumer Law, being
Schedule 2 to the Competition and Consumer Act 2010 (Cth)
established
Australian Securities and Investments Commission v Allianz
Australia Insurance Limited [2021] FCA
1062
CORPORATIONS – misleading or deceptive conduct
–financial products – insurance – allegation that
defendants had misled insureds by making four discrete
representations about the Integrated Product – where first
defendant represented that the premium of the Integrated Product
was calculated by reference to matters having no bearing on the
calculation – where defendants represented that the
Integrated product provided coverage for journeys which were not
covered – where defendants represented that the Integrated
product provided coverage for customers of a demographic who were
not covered – where defendants represented that travel
insurance covering medical expenses was an essential part of travel
in circumstances where the Integrated Product did not cover medical
expenses – where liability admitted
CORPORATIONS – misleading or deceptive conduct
–financial products – insurance – penalty –
principles relating to the determination of penalty -where parties
are in agreement as to the appropriate range
Australian Competition and Consumer Commission v Phoenix
Institute of Australia Pty Ltd (Subject to Deed of Company
Arrangement) [2021] FCA
956
CONSUMER LAW – alleged contraventions of s 21 of the
Australian Consumer Law – unconscionable conduct in trade or
commerce in connection with the supply of goods or services –
where the first respondent was a vocational education and training
(VET) provider of online courses – whether
respondents' marketing and enrolment systems unconscionable
– where marketing and enrolment systems targeted at
vulnerable consumers – whether respondents' purpose in
marketing and enrolment systems was to maximise enrolments
attracting VET FEE-HELP assistance payments so as to maximise
revenue via the VET FEE-HELP assistance scheme – whether
respondents displayed a callous indifference to consumers'
eligibility and suitability for the online courses – where
consumers often denied a reasonable opportunity to withdraw from
the online VET course before the census date for each unit of study
had passed – where Brokers and Agents deployed without
effective training, monitoring or control – where consumers
offered "free" laptops and other inducements to enrol
– where Agents made misrepresentations that the online
courses were free or free until the consumer earned a particular
amount – attribution of conduct of Brokers and Agents to
respondents
CONSUMER LAW – alleged contraventions of ss 18 and 29 of the
Australian Consumer Law – misleading or deceptive conduct in
trade or commerce – where Phoenix through its Brokers and
Agents engaged in false, misleading or deceptive conduct towards
four individual consumers in representing that if consumers
enrolled they would receive a free laptop and the online courses
were free, or free until they earned a particular amount, in
contravention of ss 18 and 29 – where Phoenix engaged in
unconscionable conduct in connection with the supply of online VET
courses to the individual consumers in contravention of s 21 of the
Australian Consumer Law – attribution of conduct of Brokers
and Agents to Phoenix
Australian Consumer Law (contained in Sch 2 to the Competition and
Consumer Act 2010 (Cth)) ss 18, 20, 21, 22, 22A, 29, 224, 232,
239
Australian Securities and Investments Commission Act 2001 (Cth) ss
12CA, 12CB, 12CC
Competition and Consumer Act 2010 (Cth) ss 2, 4, 84, 139B, 155, Sch
2
Australian Competition and Consumer Commission v Employsure
Pty Ltd (No 2) [2021] FCAFC
157
CONSUMER LAW – misleading or deceptive conduct and
making false or misleading representations – whether
appellate court should make declarations of contravention and grant
injunctive relief – issue of injunctive relief remitted to
primary judge - Competition and Consumer Act 2010 (Cth) Sch 2
(Australian Consumer Law) ss 18(1), 29(1)(b), 29(1)(h), 232
THE COURT ORDERS THAT: Employsure is, is affiliated with, or is
endorsed by a government agency when, in fact, Employsure is a
private company that has no affiliation with, and is not endorsed
by, any government agency; and Employsure thereby: (a) Engaged in
conduct which was misleading or deceptive, or likely to mislead or
deceive, in contravention of s 18(1) of the Australian Consumer Law
in Schedule 2 to the Competition and Consumer Act 2010 (Cth)
Lakomy v Accounting TEK Property Investment Pty
Limited [2021] NSWSC
1152
CONTRACT – where a defendant company (the
first party) executes a written instrument (subscription
agreement) and delivers it to the plaintiff company (the
second party) on conditions that the second party will not
do anything with it unless it hears from the first party that it
may and the first party is misled into signing it by the
misrepresentation that it is "not a proper document" and
nothing would happen if it were signed – HELD –
subscription agreement not binding – CONTRACT – terms
– implied term – whether the subscription agreement
included an implied term that the first party would not have to pay
unless an investor made funds available – HELD – term
not to be implied as not necessary to give the subscription
agreement business efficacy – CONTRACT – performance
– breach – readiness, willingness and ability to
perform – where the first party's obligations to
subscribe and pay for shares under the subscription agreement are
interdependent with the second party's obligations to pass
certain resolutions, issue shares and deliver documents and the
second party does not tender performance – HELD – the
second party cannot assert breach by the first party of its
obligations where the second party was not ready, willing and able
to perform – the second party has no right to recover from
the first party – CONTRACT – discharge/abandonment
– where parties execute another contract in substitution for
the subscription agreement – HELD – if the subscription
agreement was binding, it was discharged – CONTRACT –
damages – quantification of loss – where second
party's obligation was to issue shares in return for money
– whether it sufficiently quantified its loss – HELD
– if it were otherwise entitled to succeed, loss sufficiently
quantified CONSUMER LAW – Competition and Consumer Act 2010
(Cth) s 139B, sch 2 ss 4(1), 18(1) – misrepresentations by
the second party that the subscription agreement was "not a
proper document", that nothing would happen if the first party
signed it and that the natural person making the misrepresentation
would do nothing with it until he heard from the signatory –
authority of the natural person making the misrepresentation
– HELD – second party engaged in conduct that was
misleading or deceptive or likely to mislead or deceive –
appropriate to make a declaration EQUITY – estoppel –
where subscription agreement is signed on common understanding or
convention that the first party will not have to subscribe and pay
for shares unless funds are obtained from an offshore investor
– funds not obtained – second party seeks to enforce
agreement – HELD – such conduct is an attempt
unconscionably to depart from the common assumption or convention
and the second party is estopped from so acting
Kumar v Sydney Western Realty Pty Ltd & Anor (No.
2) [2021] NSWDC
446
TRADE AND COMMERCE – misleading or deceptive conduct
– advertisement by vendor's agent for sale of residential
property – advertisement refers to expected dual income
stream from two buildings on property acquired under contract for
sale, one of those buildings being a granny flat – doubt
about the legality of use of building as a granny flat –
whether the agent was aware of such doubt – whether opinion
on rental misleading or deceptive for absence of qualification
– whether vendor's agent acted as a mere conduit –
whether test for causation on statutory action the same as the test
under common law TORT – professional negligence –
conveyancing – omission by solicitor to advise purchaser that
granny flat lacked necessary development consent from local council
– content of duty of care – identification of risk of
harm – whether solicitor failed to take reasonable
precautions by omitting to advise client of ramifications of notice
from local council that granny flat not habitable – whether
factual causation – whether evidentiary onus upon solicitor
to establish information could not have been obtained from local
council DAMAGES – contributory negligence –
apportionment EVIDENCE – whether Jones v Dunkel
adverse inference should be drawn from failure of first defendant
to call former employee as witness
Adani
Abbot Point Terminal Pty Limited v Lake Vermont Resources Pty
Limited & Ors [2021] QCA
187
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND
CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION –
UNCONSCIONABLE CONDUCT – WHAT CONSTITUTES – where the
respondents are the users of a coal terminal – where the
appellant is the effective owner of the coal terminal – where
the respondents have separate user agreements with the appellant
concerning their use of the terminal – where a previous user
paid the respondent to be relieved of its obligations – where
charges payable by the existing users increased to account for the
previous user's exit – where the trial judge found that,
in all the circumstances, the appellant had engaged in
unconscionable conduct – whether the appellant's conduct
was unconscionable under s 21(1) of the Australian Consumer
Law
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where user
agreements exist between the appellant, as the owner, and the
respondents, as users, of a coal terminal – where the
contract provides that the appellant must demonstrate that its
charges are reasonable having regard to the efficient operation of
the Terminal – where the trial judge found that the appellant
had not made such a demonstration as the appellant had not
demonstrated that the way the Terminal was operated was, itself,
efficient – whether the appellant had made the relevant
demonstration
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where user
agreements exist between the appellant, as the owner, and the
respondents, as users, of a coal terminal – where the fourth
respondent's user agreement contains a clause which provides
"... No other Access Holder Presenting Coal for Handling at
the Terminal will be charged less than the User is charged at that
time for a substantially similar commercial arrangement"
– where the appellant charges another user less to handle its
coal than it charges the fourth respondent – where the trial
judge found that the appellants conduct was in breach of its
contract with the fourth respondent – whether the trial
judge's interpretation was in error
Competition and Consumer Act 2010 Cth Australian Consumer Law s 21,
s 22
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.