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Inside track: Competition and Consumer Law

15 October 2019

#Competition & Consumer Law

Inside track: Competition and Consumer Law

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).  More... 

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).  More... 

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

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

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Howard Rapke

Howard Rapke

Managing Partner

Melbourne

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Ian Robertson AO

Ian Robertson AO

National Managing Partner

Sydney

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Paul Venus

Paul Venus

Managing Partner

Brisbane

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