In the media
TPG emerges victorious against ACCC in
"prepayment" charges lawsuit
The Federal Court of Australia has ruled in favour of TPG
Telecom in a lawsuit filed by the Australian Competition and
Consumer Commission (ACCC) over misleading conduct
claims related to a "prepayment" charge. Justice David
O'Callaghan ruled that the telco did not unfairly charge
customers a non-refundable bond (11 October 2019).
More...
New Gift Card Laws
Businesses and consumers should be aware that from 1 November
2019 new Australian Consumer Law gift card provisions will be
in place. These new rules apply no matter where in Australia you
are. More...
'Misleading, deceptive': Tenants of Central Pier
launch legal action
Businesses at Docklands' damaged Central Pier have
launched legal action in the federal court over claims Development
Victoria engaged in "misleading and deceptive" conduct in
its role as the landlord of the precinct and led tenants to believe
that the repairs being undertaken would mean they could continue to
do business until the end of their lease in 2026 (08 October 2019).
More...
Former MG CEO Gary Helou fails in bid to stop ASIC case
against him
A case against Gary Helou by the ASIC will proceed after a
ruling by the Federal Court after they failed in the bid to have a
case against him thrown out. ASIC alleges that Mr Helou acted
without reasonable care and diligence by permitting MG and MGRE to
make misleading statements and engaged in misleading or deceptive
conduct by approving the February announcement (07 October 2019).
More...
Bitter legal stoush over vitamins and milk powder headed
for China
A Melbourne pharmacy is being sued for more than $6.5
million over allegations that vitamins, milk powder and skincare
products bound for China were never delivered. Documents lodged in
the Supreme Court of Victoria allege Mr Puthenpurackal breached his
contractual obligations and engaged in misleading or deceptive
conduct against several former clients who now face financial ruin
(04 October 2019).
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Revised cartel immunity and cooperation policy
Commencing 1 October 2019 the ACCC immunity and
cooperation policy for cartel conduct sets out the ACCC's
approach to immunity applications and how cooperation will be
recognised (30 September 2019).
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The dangers of monopolists without constraint
The Port of Newcastle is at risk of becoming a monopolist
without constraint, said ACCC Chair Rod Sims.
ACCC Chair, Rod Sims said it is bad for the economy when bottleneck
infrastructure, at the end of a crucial value chain, is in the
hands of a company with unfettered market power (30 September
2019).
More...
Cases
Fuge v Commonwealth Bank of Australia
[2019] FCA 1621
CONTRACTS – whether release extended to certain
claims – application of legal and equitable principles of
construction applicable to wide or general words of release.
CONTRACTS – Unjust contracts – When contract or
provision of contract is "unjust" – Where money
borrowed for farming purposes on basis of business plan prepared on
behalf of borrower – Bank applied standard assessment tools
and not indifferent to purpose and practicality of loans.
CONTRACTS – Unjust contracts – provisions of heads of
agreement settling dispute resulted in the inevitability of default
and were unnecessary to protect the legitimate interests of the
Bank – provisions "unjust" but were not enforced so
no relief declaring the provisions void granted.
BANKING AND FINANCIAL INSTITUTIONS – scope and content of
obligation to participate in a mediation in good faith –
whether Bank breached its obligations pursuant to the Code of
Banking Practice – whether Bank engaged in asset lending
– whether Bank breached cll 3.2 and 28.2 of the 2013 Code of
Banking Practice in refusing to accept refinancing offers
MORTGAGES – sale of assets under power – remedies of
mortgagor - consideration of Bank's obligations upon
sale.
EQUITY – a mortgagor alleging that a mortgagee has exercised
a power of sale in such a way that the equity of redemption has
been lost discloses no cause of action at common law the proper
remedy is a suit in equity for an account on the footing of wilful
default – Coroneo v Australian Provincial Assurance
Association Ltd [1935] NSWStRp 47; (1935) 35 SR (NSW) 391
applied.
EVIDENCE – whether s 18F of the Farm Debt Mediation Act
1994 (NSW) preventing evidence being adduced as to what occurs
during a farm debt mediation is picked up by s 79 of the
Judiciary Act 1903 (Cth) in respect of proceedings in the
Federal Court where admissibility is governed by ss 55 and 56 of
the Evidence Act 1995 (Cth) – provision not picked
up.
EVIDENCE – no Dobbs v National bank of Australasia
Limited [1935] HCA 49; (1935) 53 CLR 643 certificate proving
debt – Bank tendered some business records and adduced some
evidence relevant to proving debt – whether evidence
sufficient to prove alleged cross-claim debt.
CONSUMER LAW – alleged misleading and deceptive conduct
– findings relating to whether oral representations were
conveyed – application of principles explained in Watson
v Foxman [1995] 49 NSWLR 315.
DISCOVERY – allegation that discovery obligations not
complied with such that there could not be a proper testing in
evidence of the credit assessments – whether Kuhl v
Zurich inference should be drawn
Australian Securities and Investments Commission v
Helou [2019] FCA
1634
CORPORATIONS – multiple regulatory enforcement
proceedings – breaches of duties of directors and officers
– ASIC proceedings against chief executive officer and chief
financial officer for disqualification orders – earlier ASIC
proceedings against corporate entity – separate ACCC
proceedings against corporate entity and officers for
disqualification orders – application for permanent stay of
proceedings – overlap of proceedings – vexatious and
oppressive proceedings – administration of justice –
abuse of process – applications dismissed
Australian Consumer Law ss 18, 21, 29, 224, 248
Australian Securities and Investments Commission Act 2001
(Cth) ss 1, 12A, 12DA, 13, 19, 102
Competition and Consumer Act 2010 (Cth) ss 26, 155, Sch
2
Corporations Act 2001 (Cth) ss 180, 206C, 206E, 674, 675,
1041H, 1317F, 1317G, 1317J, 1317N, 1349
Federal Court of Australia Act 1976 (Cth) ss 33M, 33V
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.