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Inside track: Competition and Consumer Law

02 April 2019

#Competition & Consumer Law

Inside track: Competition and Consumer Law

In the media

Car dealers are gouging buyers with ‘worthless’ insurance policies: ASIC
The regulator singled out providers like AIG, Suncorp, Allianz and QBE Insurance for past unfair conduct. Enforcement actions subsequently taken by ASIC led to more than $100 million being recovered for consumers from a number of insurers. However, the Australian Law Action Centre (ALAC) claims Australians could still be owed more than $1 billion in oversold, misleading or unsuitable add-on insurances forcibly sold over the last 10 years (30 March 2019).  More... 

Labor announces it will raise maximum penalties under the CCA if elected
Labor has announced it will raise penalties for competition and consumer law breaches if elected. In particular, it will: 'raise the maximum dollar penalty for companies that break competition laws and rip of consumers from $10 million to $50 million' and 'adopt a higher standard for competition law breaches, being 30 per cent of the annual sales of the produce or service relating to the infringement, (30 March 2019).  More... 

More work needed to make electricity prices affordable
The report is the first for the ACCC’s new electricity monitoring inquiry. Under this new inquiry, the ACCC will be closely monitoring all parts of the supply chain in the electricity sector for the next seven years, in an effort to improve affordability (29 March 2019).  More... 

STA Travel in court for alleged misleading MultiFLEX Pass advertisements
The ACCC has instituted proceedings in the Federal Court against STA Travel Pty Ltd for allegedly making false or misleading claims in relation to its MultiFLEX Pass product. The ACCC alleges that, since September 2011, STA Travel has misled consumers by representing in advertisements that a customer who changed the date of their flight after purchasing a MultiFLEX Pass would not pay any fees or charges (28 March 2019).  More... 

Click Energy to pay $900,000 for misleading claims
The Federal Court has ordered penalties of $900,000 against Amaysim Energy Pty Ltd (trading as Click Energy) for making false or misleading marketing claims about potential discounts and savings available to Victorian and Queensland consumers, in breach of the Australian Consumer Law (27 March 2019).  More... 

Submissions invited on Vic IVF inquiry
The state government has tasked Health Complaints Commissioner Karen Cusack with uncovering questionable practices by IVF and Assisted Reproductive Treatment services, with a final report delivered to the government by the year's end. Any matters of false, misleading and deceptive conduct will be referred to Consumer Affairs Victoria (25 March 2019).  More...

Jewellery group Pandora admits to misleading customers on refund rights
Jewellery business Pandora has acknowledged it likely breached Australian consumer law by misleading customers about their right to a refund for faulty items bought in store and online. The consumer watchdog accepted a court enforceable undertaking from Pandora on Friday "to fix its consumer rights practices", after investigating consumer complaints (22 March 2019).  More.... 

Adviser banned as ASIC continues BDBN document swoop
Ms Anneliese Ada Willmott, a former financial adviser from Victoria, has been permanently banned from providing financial services. In a public statement, ASIC said it found that Ms Willmott had engaged in dishonest, misleading and deceptive conduct by forging client signatures, using false documents and back-dating documents (21 March 2019).  More... 

Five Star Car Sales Pty Ltd: Commencement of action
Consumer Affairs Victoria has started tribunal proceedings against Camberwell business Five Star Car Sales, alleging it breached a number of its obligations under Victorian motor car trader laws. Our allegations include that Five Star’s business showed our inspectors a false and misleading document (21 March 2019).  More...  


F.Y.D. Investments Pty Ltd v Promptair Pty Ltd (No 2) [2019] FCA 419
CONTRACTS – claim for a debt arising pursuant to the terms a contract – Applicants the owner and builder of a commercial building – Respondent the mechanical services contractor contracted to supply and install air conditioning equipment – Respondent supplied Air Handling Units (AHUs) which had not been approved by the Applicants’ engineer and which did not provide the “Air Off” temperature required – Applicants issued a Notice of Default and removed the work from the Respondent’s hands – claim in debt arising from contract.
Held: Notice of Default was ineffective as it included a direction by the Applicants to the Respondent to do acts which had not been required of it under the contract.
CONTRACT – claim for damages for breach of contract – the contract required that the Respondent install only AHUs which had been approved and which produced Air Off temperatures of 10°C – claim that the Respondent supplied non-approved and non-complying AHUs.
Held: breaches of contract established.
CONSUMER LAW – claim that the Respondent engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law by failing to disclose, when submitting progress payment claims, that the AHUs it had installed were not from the approved manufacturer – claim that Promptair implicitly represented that it had properly performed part of the contract.
Held: misleading or deceptive conduct claim established.
DAMAGES – claim that judgment should be entered against the Respondent for its proportionate liability only, on basis that the Applicants’ consulting engineer had contributed to the loss by breaching its contractual and tortious duty of care – claim unsuccessful.
CONSUMER LAW – claim by the Respondent (CrossClaimant) that Cross-Respondents had engaged in misleading and deceptive conduct in representing to it that the AHUs would meet the specified requirements – CrossRespondents did not attend the trial.
Held: Cross-Claimant entitled to judgment against the Cross-Respondents on the cross-claim.

Aucare Dairy (Aust) Pty Ltd v Huang (No 3) [2019] FCA 412
CORPORATIONS – breakdown of joint venture between first applicant and fourth respondent for construction of factory to manufacture and export infant milk powder to China – where third respondent contracted to construct factory – where first respondent a director of joint venture company and third respondent – where dual directorship not disclosed – where construction costs capped – where joint venture agreement required parties to make equal payment contributions – where third respondent inflated prices in excess of cost cap – where fourth respondent breached equal payment term – where first respondent removed plant and equipment from completed factory – where first respondent incorporated fifth, sixth and seventh respondents to retain control of plant and equipment and carry on substantially the same enterprise – breaches of statutory directors’ duties – declaratory relief
CONSUMER LAW – whether second respondent contravened s 18 of the Australian Consumer Law – where representations made that contractor company necessary to control costs – where evidence of intention that contractor company would charge inflated prices for substantial profit
EQUITY – multiple and significant breaches of fiduciary duties – when third party can be held accountable for breaches of fiduciary duty – knowing assistance and knowing receipt – proprietary relief – applicable principles – where wholesale acquisition of joint venture business – where fiduciary acted dishonestly and fraudulently
Competition and Consumer Act 2010 (Cth)

Australian Securities and Investment Commission v Aviation 3030 Pty Ltd [2019] FCA 377
CORPORATIONS – application by ASIC to wind up solvent companies on the just and equitable ground – s 461(1)(k) of the Corporations Act 2001 (Cth) – where company is solvent – where private proceeding also on foot – where pattern of unlawful and misleading behaviour – application to wind up managed investment scheme pursuant to s 601EE(2) of the Corporations Act – applications granted

Australian Competition and Consumer Commission v Australian Private Networks Pty Ltd (trading as Activ8me) [2019] FCA 384
Date of publication of reasons: 20 March 2019
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 18(1), 29(1)(b), 29(1)(g), 29(1)(i), 34, 48(1), 224, 232, 239, 246(2); Federal Court of Australia Act 1976 (Cth) ss 21, 43; Treasury Laws Amendment (2018 Measures No. 3) Act 2018 (Cth)
THE COURT DECLARES THAT: Activ8me, in trade or commerce, in connection with the supply or possible supply, or the promotion of the supply, of internet services: (a) engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of the Australian Consumer Law (‘ACL’), which is Schedule 2 to the Competition and Consumer Act 2010 (Cth); and (b) made false or misleading representations with respect to the price of the services in contravention of s 29(1)(i) of the ACL. 

WG Riverview Pty Ltd v Ireland [2019] NSWDC 79
Verdict and judgment for the plaintiff in the sum of $200,191.88
COMMERCIAL – False representations – Misleading conduct – Disclaimer clause – Assessment of damages – Mitigation – Contingencie. Australian Consumer Law ss 18, 236;  Competition and Consumer Act 2010 (Cth) s 2 – bull breeding. 

Harker-Mortlock v Commonwealth Bank of Australia [2019] NSWCA 56
REAL PROPERTY – mortgages – where bank relies on liquidation of company to enforce possessory interest under mortgages – whether liquidation of company an event of default – whether repayment of bills matured loan account secured by mortgages – whether appointment of new trustee replaces the borrower in loan documents PRIMARY INDUSTRY – farm debt mediation – Farm Debt Mediation Act 1994 (NSW) – where proceedings for possession an enforcement action under the Act – where s 11 certificate issued following farm debt mediation and settlement – whether certificate void – whether the Act applied at time of enforcement action MISLEADING AND DECEPTIVE CONDUCT – where mortgagee informs mortgagor that mediation under Farm Debt Mediation Act 1994 (NSW) unavailable – whether misleading or deceptive conduct – whether mortgagor principally engaged in farming operations EQUITY – rectification – where trustee purportedly declares property as being held for the benefit of itself – where true meaning of documents can be ascertained as a matter of construction – whether declarations of trust should be rectified GUARANTEE AND INDEMNITY – where parties have agreed to maximum amount that the guarantor can be called to pay on demand – whether award of interest under Civil Procedure Act 2005 (NSW), s 100 contrary to agreed maximu. 


Howard Rapke, Managing Partner, Melbourne
T: +61 3 9321 9752

Ian Robertson, National Managing Partner
T: +61 2 8083 0401

Paul Venus, Managing Partner, Queensland
T: +71 7 3135 0613

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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