In the media
Myer class action fails in court
The Federal Court has ruled Myer will not need to pay
damages in a class action brought by Amies Superannuation Fund
trustee TPT Patrol, despite finding the retailer had engaged in
misleading or deceptive conduct over a four-month period in FY15
(25 October 2019).
More...
Aldi drops a number of charges against TWU
Discount retailer Aldi has dropped a number of charges in
its Federal Court case against the Transport Workers Union
(TWU) before hearings concluded in the Federal
Court. The discount grocer is, however, still accusing the TWU of
misleading and deceptive conduct (25 October 2019).
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AAT unmoved by ATO website's 'poor use of
language'
A taxpayer who attested to being misled by the "poor
use of language" on the ATO's website has had his
submissions rejected by the AAT despite the tribunal acknowledging
that a mistake would not be made under the updated web page (22
October 2019).
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Flight Centre pays $252,000 in penalties for Christmas
and Easter promotions
The ACCC had grounds to believe that these advertisements
were liable to mislead, and breached the Australian Consumer Law
because Flight Centre failed to disclose to consumers that
redeeming the $250 voucher was subject to certain conditions (21
October 2019).
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Views sought on Murray-Darling Basin water markets
The ACCC is calling on irrigators and other water market
participants to share their views on the operation of water markets
in the Murray-Darling Basin. The ACCC will also be using its
compulsory information gathering powers to obtain a very detailed
picture of trading activity in water markets since 2012 (17 October
2019).
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Heating product distributor Bromic admits to resale
price maintenance
Bromic Pty Ltd, a national distributor of outdoor heating
products, has admitted to engaging in resale price maintenance when
it introduced a 'minimum advertised pricing' policy. Bromic
stopped referring to and enforcing the policy after April 2018 but
did not take any steps to communicate to its retail distributors
that the policy was no longer in effect (16 October 2019).
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Target will address customer complaints about faulty
PlayStations
The ACCC has accepted a court-enforceable undertaking from
Target Australia Pty Ltd (Target) in which Target admits it may
have breached the Australian Consumer Law by making false or
misleading representations in its dealings with customers who
purchased faulty Sony PlayStations (15 October 2019).
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Big W will address customer complaints about faulty
Dyson appliances
The ACCC has accepted a court-enforceable undertaking from
Woolworths Group Ltd trading as BIG W (Big W) in
which Big W admits it may have breached the Australian Consumer Law
by making false or misleading representations when dealing with
customers who purchased faulty Dyson appliances (15 October 2019).
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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 apply from 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.
Home loan price inquiry
On 14 October 2019, the Treasurer directed the ACCC to
conduct an inquiry into home loan pricing. The Treasurer directed
that the Inquiry cover the period from 1 January 2019.
More...
Consumer Affairs Victoria: Businesses to display all
charges up front
Changes to the Australian Consumer Law will clarify prices
for people shopping online. From 26 October 2019, businesses must
include all charges in the advertised price of goods and services
payable by a consumer. This includes charges for pre-selected
options.
More...
Cases
Bupa HI Pty Ltd v Chang [2019] FCAFC
180
HEALTH LAW — proper interpretation and application
of Medicare Benefits Schedule — claim by private health
insurer under the Australian Consumer Law against ophthalmologist
and his service company in respect of allegedly overpaid amounts
— primary judge dismissed insurer's claim — appeal
dismissed
CONTRACT — whether insurer formed a "reasonable
opinion" that conduct of ophthalmologist "may adversely
impact" insurer's "goodwill, reputation or
business" thus entitling it to "deregister" him from
its "Gap Scheme" — primary judge made declaration
that insurer had breached its contract with the ophthalmologist
— appeal dismissed
Bupa had the evidentiary and persuasive burden of proving its
misleading and deceptive conduct case, which was presented on an
"all or nothing" basis as explained above. It follows, it
cannot succeed as framed.
TPT Patrol Pty Ltd as trustee for Amies Superannuation Fund
v Myer Holdings Limited [2019] FCA
1747
CORPORATIONS — representative proceeding —
listed securities — continuous disclosure obligations —
ASX listing rule 3.1 — failure to disclose material
information to market — forecast of net profit after tax
— absence of reasonable grounds — failure to correct
forecast — concept of "information" under listing
rules — concept of "awareness" under listing rules
— contravention of s 674 of Corporations Act 2001 (Cth)
— misleading or deceptive conduct relating to securities
— contravention of s 1041H of Corporations Act –
availability of market based or indirect causation theory —
loss and damage
Australian Competition and Consumer Commission v TPG
Internet Pty Ltd [2019] FCA
1677
CONSUMER LAW — whether, by terms upon which mobile,
internet and home telephone service plans were offered on the
respondent's website, the respondent telecommunication provider
engaged in misleading or deceptive conduct — reasonable or
ordinary consumer — meaning of "prepayment" —
whether respondent contravened ss 18(1), 29(1)(b) and (i), and 34
of the Australian Consumer Law — whether term of mobile,
internet and home telephone service plans was unfair within the
meaning of s 23 of the Australian Consumer Law — whether,
within the meaning of s 24 of the Australian Consumer Law, contract
term creates significant imbalance — whether term reasonably
necessary to protect legitimate interests of respondent —
whether term causes detriment to consumers of telecommunication
services — application dismissed
Lake v GBST Holdings Limited [2019]
QSC 253
Judgment for the plaintiff for damages totalling
$2,225,205.04 plus interest subject to any variances for changes in
exchange rates since the trial.
EMPLOYMENT LAW — TERMINATION AND BREACH OF CONTRACT —
TERMINATION OR BREACH — GENERALLY
CONTRACTS — GENERAL CONTRACTUAL PRINCIPLES — DISCHARGE,
BREACH AND DEFENCES TO ACTION FOR BREACH — REPUDIATION AND
NON-PERFORMANCE — REPUDIATION — GENERAL
PRINCIPLES
TRADE AND COMMERCE — COMPETITION, FAIR TRADING AND CONSUMER
PROTECTION LEGISLATION — CONSUMER PROTECTION —
MISLEADING AND DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS —
PARTICULAR CASES — CONTRACTS GENERALLY — where
communications were made by directors of the defendant company,
GBST Holdings Limited, relating to share sales for the purpose of
the plaintiff obtaining approval to sell shares and with respect to
a proposal for entry into a lease for the benefit of the plaintiff
– where the plaintiff subsequently sold shares in the
defendant company and caused a subsidiary of the defendant company
to enter into a lease for an apartment in which he and his family
were to live – where as a result of the plaintiff's entry
into these transactions, the defendant company alleged that he had
engaged in fundamental and serious breaches of his employment
contract giving it the right to summarily terminate that contract
– whether the communications occurred in the course of trade
or commerce – whether the communications were misleading
– whether the plaintiff relied on the communications –
whether the plaintiff would not have proceeded with entering into
the transactions if the alleged misleading or deceptive conduct had
not occurred. Australian Consumer Law (sch 2 of the Competition and
Consumer Act 2010 (Cth))
F.J. & P.N. Curran Pty Ltd v Almond Investors Land Pty
Ltd [2019] VSCA
236
CONTRACTS — Construction of contracts — Rural
land — Option to purchase — Lease — Development
works for almond farming rendered land unusable — 'Crop
compensation' paid — Whether crop compensation payable
under contractual documents — No entitlement to crop
compensation under contract.
EQUITY — Estoppel by convention — Whether
representations regarding crop compensation made — Evidence
that crop compensation would be paid supported by objective
circumstances and compelling inferences – No lack of clarity
or precision in evidence — Representations made —
Whether oral evidence of pre-contractual negotiations can found
conventional estoppel — Retirement Services Australia RSA
Pty Ltd v 3143 Victoria Street Doncaster Pty Ltd [2012] VSCA
134; (2012) 37 VR 486; Johnson Matthey Ltd v AC Rochester
Overseas Corp [1990] 23 NSWLR 190 considered —
Unnecessary to decide — Representations made in continuum of
conduct between parties — Mutual assumption found —
Conventional estoppel found.
EQUITY — Equitable estoppel — Promissory estoppel
pleaded as positive right to crop compensation payments —
Whether promissory estoppel has defensive character only —
Saleh v Romanous [2010] NSWCA 274; (2010) 79 NSWLR 453;
DHJPM Pty Ltd v Blackthorn Resources [2011] NSWCA 348;
(2011) 83 NSWLR 728 considered — Not appropriate case in
which to decide principle.
LIMITATION OF ACTIONS — Limitation of Actions Act 1958 s 27
— Whether payments by mistake — Payments not by mistake
— Conventional estoppel — Any mistake discoverable by
2007 — Counterclaim for repayment of crop compensation
statute-barred.
The judge described the 'main issues to be resolved' as
follows: (c) Did AIL engage in misleading and deceptive conduct in
breach of section 18 of the Australian Consumer Law, or act
negligently and thereby cause loss and damage to Curran? (d) Is
Curran entitled to damages for any loss suffered as a result of
misleading and deceptive conduct or negligent misrepresentation by
AIL?
In the matter of AA Management Co Pty Limited
[2019] NSWSC 1443
CORPORATIONS — Winding up — Statutory demand
— Application to set aside demand because of genuine dispute
— Dispute involving family companies — Prior
proceedings settled by Deed of Settlement — Deed provided for
payment of sum by sunset date to defendant from proceeds of sale of
real property — "Best endeavours" clause —
Property not sold — Demands served on eight family companies
— Recovery proceedings simultaneously commenced against
individual family members — Whether genuine dispute as to
construction of Deed — Whether deed voidable or rescindable
for misleading and deceptive conduct or misrepresentation —
Genuine dispute made out — Demands set aside. Australian
Consumer Law, ss 18, 243
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