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Inside track: Competition & Consumer

22 June 2021

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Former Dick Smith CFO Michael Potts to pay $43M to NAB
Justice Michael Ball has found that NAB advanced money as a result of misleading and deceptive conduct in exchange for a promise to repay that money and security, and that Potts did engage in misleading conduct when he said that the increase in the overdraft with HSBC was to fund the acquisition of additional stock for the Boxing Day sales (16 June 2021).  More...

digiDirect pays penalties for misleading consumers about 'storewide' sales
Digital Imaging Express Pty Ltd, trading as digiDirect, has paid $39,240 in penalties after the ACCC issued the company three infringement notices for allegedly misleading consumers about the details of advertised sales in breach of the Australian Consumer Law (ACL) (15 June 2021).  More...

Renewed pressure on Nuix Board with CFO rumours
Nuix is already under pressure on disclosure, governance issues and the quality of its financial accounts, years before it floated, with ASIC and the Federal Police running investigations to the company’s affairs has seen three class action law firms investigating Nuix for misleading and deceptive conduct or breaches of continuous disclosure obligations (14 June 2021).  More...

Shipping cost surge: Retail price pressures and inflation risks
Paul Zalai from the Freight & Trade Alliance, calls on Trade Minister for regulation of the shipping industry like in the US, where there is a Federal Maritime Commission, to make sure that pricing here isn’t artificially being inflated, and that again, there’s enough safeguards in place to ensure that surcharges are reasonable (14 June 2021).  More...

Waterdale property agent - commencement of action
Consumer Affairs Victoria has commenced criminal action against a real estate agency which allegedly served Notices to vacate illegally under laws introduced to protect renters during the COVID-19 pandemic.
Waterdale was investigated after complaints from renters alleging that they had been served the notices and that the company had also made what amounted to false and fraudulent misrepresentations about their rights (11 June 2021).  More...

Mike Tyson sues Australian streetwear retailer Culture Kings for ‘deceptive’ T-shirts
Former world champion boxer Mike Tyson has sued local streetwear retailer Culture Kings for allegedly using his likeness to sell T-shirts without permission, has initiated proceedings against Culture Kings for misleading and deceptive conduct (08 June 2021).  More...

Practice and Regulation

ACCC seeks leave to appear in Epic v Apple appeal
The ACCC has sought leave to appear as ‘amicus curiae’ or as non-party in Epic’s appeal to the Full Federal Court against the Court’s decision to stay Epic’s proceedings against Apple.
Epic has alleged Apple engaged in anti-competitive conduct in relation to the App Store. Apple sought to stay proceedings on the ground that an agreement between them required disputes to be determined in California. Justice Perram granted the stay in April. Epic lodged a notice of Appeal on 14 April. A hearing is scheduled for 9 June 2021

ACCC Consultation: Facebook advertisements
Closes 1 September 2021 - The ACCC is aware of advertisements on Facebook about cryptocurrency products featuring the name or image of an Australian public figure. These advertisements might look like articles or posts in your Facebook newsfeed. We are concerned that the advertisements may be false or misleading.
If you see one of these advertisements on Facebook, please take a screenshot and submit it to the ACCC

ACCC Note: Screen scraping warnings not anti-competitive
The ACCC, responding to questions on notice as part of a parliamentary inquiry by the Senate Select Committee on Financial Technology and Regulatory Technology, said that “statements or warnings regarding potential security or safety risks associated with screen scraping and sharing passwords does not appear to have the purpose or effect of substantially lessening competition.”
On 18 March 2021 the Senate agreed: That the resolution of appointment of the Select Committee on Financial Technology and Regulatory Technology be amended as follows: That the committee present its final report on or before 30 October 2021.


DSHE Holdings (Receivers & Managers Appointed)(In Liquidation) v Nicholas Abboud (No 3); National Australia Bank Limited v Nicholas Abboud (No 4) [2021] NSWSC 673
CORPORATIONS – Directors and officers – Directors’ duties – duty of care and diligence – where executive directors alleged to have adopted a “rebate maximisation policy” – whether policy led to buy stock irrespective of consumer demand – whether non-executive directors failed to put in place internal controls to monitor procurement activities
CORPORATIONS – shares – dividends – where dividend allegedly declared in breach of section 254T Corporations Act 2001 (Cth) – where dividend allegedly declared in breach of directors’ duties – whether directors can act in breach of duty when declaring a dividend even without contravening section 254T – whether reference to “creditor” in section 254T includes future creditors –– meaning of “materially prejudice” expression in s 254T – whether business judgment rule applies to decision to declare dividends
CONSUMER LAW – misleading and deceptive conduct – whether executive directors made misleading and deceptive statements when negotiating credit facilities – where executive director made statements concerning matters within his area of responsibility and about which he had personal knowledge – where statements misleading or incomplete – executive director found to have personally engaged in misleading and deceptive conduct on the facts
DAMAGES – damages caused by misleading and deceptive conduct – proof – where misled party acquired something of value as result of misleading conduct by way of security over loan – held misled party’s onus of proof is discharged by showing value of security lower than value of loan
DAMAGES – damages caused by misleading and deceptive conduct – quantification – held damages to be assessed as the difference between the amount lent and the amount actually received in the receivership – Whether payment by receivers of creditors’ legal costs amounts of a distribution in the creditors’ favour.

Secure Logic Pty Limited v Paul William Noble (No. 2) [2021] NSWSC 675
CONFIDENTIAL INFORMATION – the plaintiffs are members of a group of companies providing information security services to the IT industry – the plaintiffs claim the first and third defendants each diverted and misused the plaintiffs’ confidential information – the plaintiffs seek a permanent injunction to restrain further misuse – whether the information was confidential – whether the information was misused – whether a permanent injunction should be granted against the first and third defendants in the absence of the plaintiffs seeking relief against other persons to prevent the misuse of the plaintiffs’ confidential information obtained through the first and third defendants.
PRACTICE AND PROCEDURE – judgments and orders – CONTRACTS – construction –
CONSUMER LAW – MISLEADING AND DECEPTIVE CONDUCT – whether the plaintiffs/cross-defendants made representations as to the financial benefits the first defendant/cross-claimant would be likely to derive from taking employment with the plaintiffs’ group – whether the representations were made – whether they were representations as to future matters – whether they were misleading or deceptive – whether the first defendant/cross-claimant relied upon the representations and whether he suffered any loss or damage as a result.

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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