In the media
The Sarain Pty Ltd (previously t/as Ray White Werribee)
- Commencement of action
Consumer Affairs Victoria has applied to the Victorian Civil and
Administrative Tribunal to hold an inquiry in relation to The
Sarain Pty Ltd (ACN: 143 731 006) and its director, Surinder
Sarain, alleging the company and Mr Sarain contravened the
Estate Agents Act 1980 when the company was trading as Ray
White Werribeeain un-competitve sale pricing (28 June 2017).
More...
Petrol prices increased during the March quarter but
fuel price apps can help motorists
The ACCCs tenth quarterly report on the Australian petroleum
industry has found that the quarterly average price for petrol in
the March quarter 2017 was 129.1 cents per litre
(cpl), which is the highest since the September
quarter 2015 (133.2 cpl). The ACCC believes that the increase in
margins in recent quarters cannot be adequately explained by an
increase in regulatory and compliance costs and petrol retail
margins are currently higher than we think they should be (30 June
2017).
More...
Court sentences online electronics store operator to
three months imprisonment following ACCC contempt
action
The Federal Court has sentenced Dhruv Chopra, the former operator
of online electronics stores Electronic Bazaar and Dream Kart, to
three months imprisonment for failing to comply with court orders
made against him in May 2015, following ACCC action for contempt of
court. The Court ordered Mr Chopra to serve one month of the
sentence immediately with the remainder suspended on condition that
for a period of five years he stop making false or misleading
representations online about consumers' refund and warranty
rights (28 June 2017).
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Court finds Get Qualified Australia was misleading and
unconscionable
The Federal Court has found that Get Qualified Australia Pty Ltd
made false or misleading representations and engaged in
unconscionable conduct in its supply of services to consumers
seeking recognition of their prior learning to gain qualifications,
in contravention of the Australian Consumer Law (27 June 2017).
More...
ACCC won't allow tobacco companies to act
together
The ACCC is denying authorisation to British American Tobacco,
Imperial Tobacco, and Philip Morris to jointly cease supplying
retailers or wholesalers they consider to be supplying illicit
tobacco. This kind of interaction between all of the major
competitors raises competition concerns, and the ACCC doesn't
consider that there would be a net public benefit in giving the
three dominant tobacco companies immunity for information sharing
and joint boycotts of retailers (23 June 2017).
More...
ACCC 2015-16 Water Monitoring Report shows rural water
sector adapting to change
The ACCC's seventh annual
Water Monitoring Report, covering 2015-16, shows the effects of
structural changes in the Murray-Darling Basin rural water sector
on regulated charges and terminations, transformations, and trades.
Customers are using market mechanisms in innovative ways to adjust
their water holdings and access to infrastructure, signalling
greater confidence in using markets (20 June 2017).
More...
ACCC commences Federal Court action against
Thermomix
The ACCC has revealed that it has commenced proceedings in the
Federal Court against Thermomix In Australia Pty Ltd
(Thermomix), alleging it contravened several
provisions of the Australian Consumer Law (the ACL) - contained in
Sch 2 to the Competition and Consumer Act 2010 (Cth). The
ACCC alleges that Thermomix misled customers about their consumer
guarantee rights, failed to comply with mandatory reporting
requirements for injuries arising from the use of the appliances,
made false representations and engaged in misleading conduct
regarding the safety of the TM31 model, and made false and
misleading statements about its 2014 recall (20 June 2017). More...
Australian School of Management's registration
cancelled
Celebrity-endorsed higher education provider the Australian School
of Management (ASM) has had its registration
cancelled by the Turnbull Government. In May last year it signed an
agreement with the ACCC where it agreed to pay $44 million back to
the Federal Government for using door-to-door sales brokers who
broke consumer law by misleading people by saying courses were
free, would help people find jobs and offering inducements such as
free iPads (16 June 2017).
More...
AIG: What will new energy policies actually
do?
The disastrously high prices facing electricity and gas users
across Eastern Australia are inspiring a lot of activity. Energy
users and businesses using gas directly in production are looking
for ways to cut their own costs, and a range of technology and
services providers are eager to help them. Governments are
searching for a mix of reforms that will reduce costs, maintain
reliability and reduce greenhouse gas emissions (16 June 2017).
More...
In practice and courts, published reports
ACCC Electricity supply & prices inquiry
update
Submissions are due by 30 June 2017. A preliminary report is now
due to the Treasurer by 27 September 2017 and a final report by 30
June 2018.
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NSW Fair Trading: Have your say on retirement village
reforms
NSW Fair Trading is inviting public comment on draft reforms
affecting the state's retirement villages. The new regulation
will retain a number of existing provisions, while also making
amendments to reduce excessive administrative requirements for
operators, and improve protection for both prospective and current
residents. Submissions close 20 July 2017 (22 June 2017).
More....
Designing Cartel Sanctions: A Continuing
Debate
The 8th Annual Baxt lecture, Woodward Conference Centre,
Melbourne Law School 21 June 2017 Judge Douglas Ginsburg, Federal
US judge on the Court of Appeals; Introduction by Roger
Featherston, ACCC Commissioner
The address focussed on the importance of directing sanctions to
the individuals involved in the contraventions, rather than
continuing to increase corporate sanctions; the latter, it was
argued, both fails to increase deterrence and imposes penalties on
shareholders who were not involved in the misconduct and cannot be
deterred.
More...
Cases
ACCC v Acquire Learning & Careers Pty Ltd [2017] FCA 602:
Acquire Learning Fined for Engaging in Unconscionable
Conduct
In the case of ACCC v Acquire Learning & Careers Pty
Ltd [2017] FCA 602 (30 May 2017), the Federal Court has
ordered Acquire Learning & Careers Pty Ltd
(Acquire) to pay penalties of $4.5 million for
engaging in unconscionable conduct, making false or misleading
representations and breaching the unsolicited consumer agreements
provisions in the Australian Consumer Law (the ACL – which is
contained in Sch 2 to the Competition and Consumer Act
2010 (Cth)) (23 June 2017).
Downey and Australian Securities and Investments Commission
[2017] AATA 958
CORPORATIONS LAW – six year banning order – whether
conduct misleading or deceptive or likely to mislead or deceive
– factors to be taken into account when imposing a banning
order – duration of banning order – decision under
review is set aside – applicant banned under s 920A of the
Corporations Act 2001 for a period of four years.
Director of Consumer Affairs Victoria v Daiso Industries
(Australia) Pty Ltd (No 2) [2017] FCA 720
CONSUMER LAW – product safety of consumer goods –
alleged contraventions of product safety standards – where
disputed issue resolved adversely to respondent – where
respondent otherwise admitted contraventions – application by
the parties for the making of declarations in relation to admitted
contraventions. Australian Consumer Law and Fair Trading Act
2012 (Vic), Australian Consumer Law (Victoria), ss
106, 136; Competition and Consumer Act 2010 (Cth), Sch 2,
Australian Consumer Law, ss 106, 136.
Australian Competition and Consumer Commission v Get Qualified
Australia Pty Ltd (in liquidation) (No 2) [2017] FCA
709
CONSUMER LAW – contraventions of the Australian Consumer Law
– representative case based on system of conduct or pattern
of behaviour – misleading or deceptive conduct – false
or misleading representations – unfair consumer contract
terms – unsolicited consumer agreements –
unconscionable conduct – accessorial liability of company
director – leave to proceed against company in liquidation
under s 500(2) of the Corporations Act 2001 (Cth) –
leave to proceed under r 30.21(1)(b)(i) of the Federal Court
Rules 2011 (Cth) where respondents absent at trial –
contraventions of Australian Consumer Law established.
Competition and Consumer Act 2010 (Cth), Sch 2, ss 4, 18,
21, 22, 23, 24, 25, 27, 29, 60, 61, 62, 69, 70, 79, 86, 155, 159,
224, 267.
Australian Battery Distributors Pty Ltd v Robert Bosch (Australia)
Pty Ltd (No 3) [2017] FCA 707
CONSUMER LAW – further amended statement of claim alleging
contravention of ss 18 and 21 of The Australian Consumer Law, Sch 2
to the Competition and Consumer Act 2010 (Cth) –
application to strike out or summarily dismiss the statement of
claim for alleged deficiencies – order made striking out the
statement of claim - Australian Securities and Investments
Commission Act 2001 (Cth); Competition and Consumer Act
2010 (Cth) Sch 2 – The Australian Consumer Law ss 18,
21, 22, 236, 237, 243.
Hope v Australian Community Pharmacy Authority [2017] FCA
669
ADMINISTRATIVE LAW – objection to new pharmacy –
approval of new pharmacy location – interpretation of rules
for pharmacy approval – false and misleading information
provided by applicant to the Australian Community Pharmacy
Authority – 'fraud' in Australian public law –
fraud on the Authority – jurisdiction of Authority
constructively unexercised – Authority's recommendation
vitiated – application remitted. Administrative Decisions
(Judicial Review) Act 1977; Judiciary Act 1903 (Cth);
National Health Act 1953 (Cth); National Health
(Australian Community Pharmacy Authority Rules) Determination
2011.
Director of Consumer Affairs Victoria v Daiso Industries
(Australia) Pty Ltd [2017] FCA 683
CONSUMER LAW – product safety of consumer goods –
alleged contraventions of product safety standards – where
goods in question included plastic bath toys and plastic animal
toys – whether the goods were "toys for children up to
and including 36 months of age" and so covered by applicable
product safety standards. Competition and Consumer Act
2010 (Cth), Sch 2, Australian Consumer Law, ss 106,
136, 138, 232.
Fitzgerald v Deloitte Services Pty Ltd [2017] NSWCA
139
TRADE PRACTICES – misleading or deceptive conduct – s
18 of the Australian Consumer Law - whether the respondent relied
on representations made by the appellant – whether it is
necessary to establish reliance on representations – whether
the appellant was 'involved' in contraventions of s 18 for
the purposes of s 2 of the Australian Consumer Law – whether
the appellant was liable for contraventions pursuant to s 236 of
the Australian Consumer Law. CONTRACT – whether the primary
judge erred in determining that a payment practice had been
established – whether the primary judge misconstrued the
terms and scope of the payment practice. APPEAL AND NEW TRIAL
– no issue of principle – failure to demonstrate that
the primary judge's findings were glaringly improbable or
inconsistent with accepted evidence or with evidence overlooked by
the primary judge.
Commonwealth Bank of Australia v Stephens [2017] VSC
385
CONTRACT – Unilateral mistake – Equitable right to
rescission where other party exploits a 'serious mistake'
– Whether Bank was aware of customer's mistaken
understanding of terms of fresh loan – Held: Bank was not
aware of a 'serious mistake' and did not deliberately set
out to ensure that customer did not become aware of this mistake
– Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422
considered and applied.
TRADE PRACTICES – Misleading or deceptive conduct –
Representation alleged to have been made to a party about the terms
of an executory contract – Representation must be made with
sufficient precision – Conduct to be assessed in the light of
all relevant facts and circumstances – Whether Bank made
representations about a loan which differed from the terms of that
loan – Held: no representation was made giving rise to
misleading or deceptive conduct – Australian Securities
and Investments Commission Act 2001 (Cth) s 12DA(1) –
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60;
(2004) 218 CLR 592 considered and applied.
TRADE PRACTICES – Statutory unconscionability – Whether
statutory unconscionability requires 'moral obloquy' as
distinct from mere unfairness or unreasonableness – Whether
there was a 'moral taint' to Bank's conduct in not
explaining terms of fresh loan to customer with sufficient clarity
– Held: (1) moral obloquy required; (2) Bank's conduct
not unconscionable – Australian Securities and
Investments Commission Act 2001 (Cth) s 12CB(1) –
Violet Home Loans Pty Ltd v Schmidt [2013] VSCA 56; (2013)
44 VR 202; Director of Consumer Affairs (Vic) v Scully (No
3) [2012] VSC 444; [2013] VSCA 292 considered and
applied.
EQUITY – Vitiating factors – General law
unconscionability – Whether customer with mistaken
understanding of terms of fresh loan was under a 'special
disadvantage' – Requires 'close consideration of the
facts' – Equitable relief requires both (1) a disabling
condition and (2) 'unconscientious taking advantage' by the
other party – Inequality in bargaining power an important but
not decisive factor – Held: (1) there was no special
disadvantage; (2) there was no 'victimisation or
exploitation' - Australian Securities and Investments
Commission Act 2001 (Cth) 12CA(1) – Blomley v
Ryan [1956] HCA 81; (1956) 99 CLR 362; Commercial Bank of
Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447;
Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250
CLR 392 considered and applied.
CONSUMER PROTECTION – Whether a credit contract between Bank
and customer was one to which Consumer Credit (Victoria) Code
applied – Whether credit contract was 'carried over
instrument' and subject to National Credit Code – Held:
Consumer Credit (Victoria) Code applied and credit contract was
carried over instrument – Consumer Credit (Victoria) Act
1995 (Vic); National Consumer Credit Protection Act
2009 (Cth).
CONSUMER PROTECTION – National Credit Code s 76(1) –
'Unjust transaction' – Court to have regard to the
public interest – Factors to have regard to under s 76(2)
– Customer did not seek legal advice before signing loan
agreement – Whether Bank discouraged customer from seeking
independent legal advice before signing loan agreement –
Whether Bank exerted unfair pressure or used unfair tactics or
otherwise engendered an unjust transaction – Held: neither of
the loan agreements nor their provisions are the product of unfair
conduct on the part of the Bank – National Consumer
Credit Protection Act 2009 (Cth).
CONTRACT – Restitution – Change of position –
Good faith and reliance on receipt of money – Whether
restitution unjust because of misrepresentations as to loan amount
– David Securities Pty Ltd v Commonwealth Bank of
Australia [1992] HCA 48; (1992) 175 CLR 353; Dextra Bank
& Trust Co Ltd v Bank of Jamaica [2001] UKPC 50; [2002] 1
All ER (Comm) 193 considered.
EQUITY – Subrogation – Payment out of a prior security
by third party – Unconscionability of denying proprietary
interest where third party presumably intended paying-out to be for
own benefit – Subrogation only available absent sufficient
remedy at law or in equity – Bofinger v Kingsway Group
Ltd [2009] HCA 44; (2009) 239 CLR 269; Aged Care Services
Pty Ltd v Kanning Services Pty Ltd [2013] NSWCA 393; (2013) 86
NSWLR 174 considered.
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.