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Inside track: Competition and Consumer Law

23 July 2019

#Competition & Consumer Law

Inside track: Competition and Consumer Law

In the media

Aged care provider Estia Health taken to Federal Court in class action
Allegedly, Estia's conduct caused its share price to trade at a price substantially higher price than what would have prevailed in a properly informed market and engaged in misleading and deceptive conduct by maintaining its optimistic guidance without any qualification or reasonable grounds (18 July 2019).  More... 

Dodo and CovaU to refund customers and pay penalties over energy discount claims
M2 Energy Pty Ltd (Dodo) and CovaU Pty Ltd (CovaU) have paid penalties totalling $37,800 and $12,600 respectively. The ACCC considered both businesses made false and misleading claims about percentage discounts consumers would receive because those discounts applied to Dodo and CovaU’s market offer rates (18 July 2019).   More...

Uber Eats amends its contracts
Uber Eats has committed to changing its contracts with restaurants following an investigation by the ACCC for making restaurants responsible and financially liable for elements outside of their control (17 July 2019).  More... 

Simple fixes could help save Australian consumers from up to $3.6 billion in 'loyalty taxes'
Complicated pricing structures often make it hard for consumers to compare quotes to see if one deal is better than another. Companies can get away with making large price increases over successive renewals with little fear a customer will switch. This practice is deceptive and falls short of community expectations. Greater respect for loyal customers is something the Hayne Royal Commission said financial institutions should have better regard for (16 July 2019).  More... 

Vodafone to compensate customers over 'direct carrier billing' charges
Vodafone has admitted to making false or misleading representations about its third-party Direct Carrier Billing (DCB) service and will contact and refund impacted consumers, following an ACCC investigation. Vodafone admitted that it likely breached the ASIC Act from at least 2015, by charging consumers for content they had not agreed to buy or had purchased unknowingly (16 July 2019).  More...

Electricity prices on the rise despite re-regulation of the market
The Federal Government's tentative steps towards re-regulating the retail energy market have seen power prices rise and competitive pressure between rival suppliers ease (15 July 2019).  More... 

Land-banking scam ends up in Supreme Court
A law firm and two of its principal lawyers were allegedly at the heart of one of Australia's largest land-banking were negligent, engaged in misleading and deceptive conduct, Supreme Court documents claim (12 July 2019).  More... 

'Pitiful payouts' from 'junk' credit insurance sold by major banks with loans and credit cards
Australians are getting "extremely poor value for money" on their consumer credit insurance (CCI), according to the corporate regulator's frank and scathing assessment of the industry, including "unfair", "high-pressure" sales tactics, often from salespeople over the phone. ASIC Commissioner Sean Hughes said an inevitable consequence of these widespread failings and mis-selling practices will involve ASIC taking significant enforcement action (11 July 2019).  More... 

Dodo to refund $360,000 over NBN streaming claims
Dodo Services Pty Limited (Dodo) has agreed to refund to around 16,000 customers for claims that its entry-level NBN broadband plans were ‘perfect for streaming’. The refunds are part of a court-enforceable undertaking made to the ACCC after Dodo admitted its conduct was likely to be false or misleading and in contravention of the Australian Consumer Law (10 July 2019).   More... 

Pharma giant using loophole to falsely promote opioid pain relief product across Australia
Pain specialist says Mundipharma distributed misleading brochure on strong pain medications to GPs. The company avoided scrutiny because it opted out of Australia's self-regulatory system and the TGA can't act because false advertising laws exclude marketing to GPs (10 July 2019).  More... 

Practice and Regulation

Current Senate Inquiries July 2019 - Environment and Communications Legislation Committee
Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019

Residential time of use electricity pricing in NSW
Phillip Toner; The Australia Institute: 08 July 2019
Australian energy companies and regulators claim that introducing 'time of use' pricing will benefit consumers and move their consumption to times when the network is less congested.  More...

Cases

Lucas Earthmovers Pty Limited v Anglogold Ashanti Australia Limited [2019] FCA 1049
CONTRACTS – Applicant contracted with the Respondents to construct an access road to a remote mine site – various matters led to the incurring of additional costs and to construction delays – claim for damages for breach of contract - claim for payment of the time-related costs incurred by the Applicant in respect of additional work – claim for other consequences of the additional time taken and the additional work – claim for payment of variations.
Held: claim for the time-related costs fails but other aspects of the breach of contract claim succeed in part.
CONSUMER LAW – claims of misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law – claim that in entering into the contract the Applicant relied on four representations made by the Respondents which were misleading or deceptive – claim that if the representations had not been made the Applicant would not have entered into the contract at all or, alternatively, would have entered into a contract on schedule of rates terms which assigned the risk and cost of additional work and delay to the Respondents – Applicant did not prove that the representations were made or that they were misleading or deceptive – Applicant did not prove that it relied on the pleaded representations in entering into the contract – Applicant did not establish loss by reason of the alleged misleading or deceptive conduct.
Held: contraventions of s 18 of the ACL not made out.
Australian Consumer Law ss 18, 236; Competition and Consumer Act 2010 (Cth) Sch 2; Evidence Act 1995 (Cth) ss 69, 81; Trade Practices Act 1974 (Cth) s 82

Luo v Windy Hills Australian Game Meats Pty Ltd (No 3) [2019] NSWSC 862
CONTRACTS – breach of contract – consequences of breach – right to damages – contract for sale of goods – goods never delivered – total failure of consideration – defendant vendor defrauded by third party supplier – defendant vendor nonetheless liable to plaintiff purchaser   CONTRACTS – misleading conduct under statute – misleading or deceptive conduct – representations – defendant falsely represented it had a present ability to supply beef omasum – plaintiff paid contract sum in reliance – containers of packing salt delivered   EQUITY – trusts and trustees – resulting trusts – Quistclose trusts – no Quistclose trust established where no mutual intention that plaintiff’s money would not become part of the first defendant’s assets
Competition and Consumer Act 2010 (Cth); Convention on Contracts for International Sale of Goods, opened for signature 11 April 1980, 1489 UNTS 3 (entered into force 1 January 1998)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW); Trade Practices Act 1974 (Cth)

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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

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Ian Robertson AO

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Paul Venus

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