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Inside track: Competition & Consumer

23 November 2021

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

New anti-scalping laws crack down on inflated bundle deals
Victorian fans attending major sports and entertainment events will be further protected from scalpers under new legislation. The new measure will guard against unscrupulous individuals and companies buying tickets and then obscuring inflated resale prices for the seats in packages involving hospitality, experiences or merchandise (16 November 2021).  More...

ASIC files contempt application against Mayfair 101 Director James Mawhinney
ASIC has filed a contempt application in the Federal Court against James Mawhinney, the director of the Mayfair 101 group of businesses. On 23 March 2021, the Federal Court ruled that companies in the Mayfair 101 Group, of which Mr Mawhinney was a director, made false, misleading, or deceptive representations in ads for its debenture products (16 November 2021).  More...

Alkaloids of Australia Pty Ltd pleads guilty to criminal cartel charges
Alkaloids of Australia Pty Ltd has pleaded guilty to three charges of criminal cartel conduct and has admitted a further seven offences. The conduct involved price fixing, bid rigging and market allocation arrangements with overseas pharmaceutical ingredient suppliers. This follows and earlier guilty plea by Alkaloids’ former export manager (16 November 2021).  More...

High Court denies Volkswagen leave to appeal $125 million penalty
The High Court has dismissed Volkswagen AG’s application for special leave to appeal the $125 million penalty ordered by the Federal Court in December 2019 for making false representations about compliance with Australia’s diesel emissions standards. The High Court’s decision means the record $125 million penalty imposed by the Federal Court stands (12 November 2021).  More...

ACCC probes flower industry over claims customers are being scammed into buying from 'local' florists
A whistleblower at one of Australia's largest online flower retailers said she was trained to deliberately mislead customers. ACCC Chairman Rod Sims says he is 'extremely concerned' about possible widespread deception in the flower industry and the approach from Roses Only appeared to give the false impression the businesses were local shops (13 November 2021).  More...

Audio company Please Hold removes alleged unfair contract terms for small business customers
UK based audio branding company Please Hold (UK) Limited (PHMG) has committed to amend its contract terms after an ACCC investigation into allegations that PHMG’s standard form contract contained unfair contract terms, and limited consumer guarantee rights (11 November 2021).  More...

Enforcing underquoting laws to protect home buyers - News alert
Consumer Affairs Victoria is monitoring the real estate industry for signs of underquoting, as Victoria reopens and property sales ramp up. Under the laws, agents must not advertise a property at a price below the estimated selling price, the seller’s asking price or a price that has been rejected as too low by the seller (08 November 2021).  More...

Cases

Stuart v Rabobank Australia Ltd [2021] FCA 1388
BANKING AND FINANCIAL INSTITUTIONS – misleading or deceptive conduct – financial products – loan facility – allegations that respondent misled applicants by making representations as to loan facility – whether representations were made – whether representations were false or misleading – whether representations contravened s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) – whether representations were fraudulent – tort of deceit – whether provision of finance unconscionable – whether conduct contravened ss 12CB and 12CC of the ASIC Act – whether respondent’s conduct at mediation unconscionable – cross-claim by respondent for outstanding indebtedness
DAMAGES – ss 12GF and 12GM of the ASIC Act – tort of deceit – causation – identification of counterfactual – whether applicants’ loss was result of respondent’s conduct – whether respondents have suffered loss or damage by reason of applicants’ default
LIMITATION OF ACTIONS – ss 12GF and 12GM of the ASIC Act – applicants time barred – s 38 of Limitation of Actions Act 1974 (Qld) – whether applicants discovered the alleged fraud prior to the end of the limitation period – applicants time barred
CONSUMER LAW – whether respondent contravened s 76 in sch 1 to the National Consumer Credit Protection Act 2009 (Cth) (National Credit Code) – whether loan advanced by respondent was “carried over instrument” – whether loan facility was a credit contract – whether loan was for personal, domestic or household purposes – whether deed of forbearance was a credit contract – application made to issue notice pursuant to s 78B of the Judiciary Act 1903 (Cth) (78B notice) due to alleged conflicting interpretations of the National Credit Code – application to issue 78B notice dismissed
EVIDENCE – proposed tender of expert reports – s 79(1) of the Evidence Act 1995 (Cth) (Evidence Act) – whether expert witnesses had requisite specialised knowledge – whether opinions of expert witnesses based wholly or substantially on that knowledge – reports inadmissible – alleged delay by respondent to comply with discovery obligations – respondent’s delay in producing documents did not justify drawing of any adverse inferences – application to adduce tendency evidence – s 97 of the Evidence Act – whether reasonable notice provided – whether proposed evidence has significant probative value – application dismissed – admissibility of hardship evidence – efficient conduct of hearing
PRACTICE AND PROCEDURE – application to set aside deed of forbearance – whether equity will intervene to prevent unconscientious reliance on deed of forbearance
CONTRACTS – whether binding contract entered into regarding carbon farming project – whether any loss or damage flowed from alleged breach of contract
Constitution s 51; Australian Securities and Investments Commission Act 2001 (Cth) ss 12CB, 12CC, 12DA, 12GF, 12GM; Competition and Consumer Act 2010 (Cth) s 87; Competition and Consumer Act 2010 (Cth) sch 2, The Australian Consumer Law s 238; Corporations Act 2001 (Cth) s 912A

Halal Certification Authority Pty Ltd v Flujo Sanguineo Holdings Pty Ltd [2021] FCA 1399
TRADE MARKS – trade mark registered by Halal Certification Authority Australia Pty Ltd (HCA) in respect of classes 42 and 45 of services – where trade mark used as a packaging logo on artificial sweetener products by respondents – where products certified halal by HCA at various times and certificates issued – where products manufactured by contract manufacturer who held agreement with HCA – where certification had lapsed at two times – where no permission was given to use the trade mark on packaging – where there was no direct agreement between HCA and respondents – whether trade mark infringement occurred because packaging was substantially identical or deceptively similar to the goods or services of registration per s 120(1) of Trade Marks Act 1995 (Cth) – whether the trade mark was used as a sign that was substantially identical or deceptively similar to the goods or services of registration per s 120(2)(c) or (d) of the Act – whether respondents could rely on good faith exception in s 122(1)(b)(i) of the Act for use of the trade mark on the products – held: Trade mark not being used on products as a trade mark for services – held: Trade mark not used in respect of services of the same description, or closely related to registered services – held: No infringement within s 120 of the Act – held: Even if infringement had been made out, good faith exception applied – claims dismissed
CONSUMER LAW – where submitted that HCA, by the existence and use of the trade mark, had acquired a substantial and valuable reputation and that the respondents had made representation to traders and consumers in relation to HCA and halal certification – whether use of trade mark contravened ss 18 and 29(a), (b), (g) and (h) of the Australian Consumer Law – whether respondents engaged in tort of passing off – held: Ordinary consumer would not have perceived necessary connection to HCA through the use of the trade mark on the products – claims dismissed
TRADE MARKS – cross-claim – whether the register of trade marks should be rectified by cancelling the trade mark pursuant to s 88(2)(a) of the Act as likely to deceive or cause confusion
Australian Consumer Law ss 18, 29(1); Competition and Consumer Act 2010 (Cth) sch 2
Trade Marks Act 1995 (Cth) ss 6, 7(4), 10, 17, 41, 88(2), 89, 92(4), 120(1), 120(2), 122(1), 169
Trade Marks Regulations 1995 (Cth) sch 1 pt 2 – Classes of services

Australian Securities and Investments Commission v GetSwift Limited (Liability Hearing) [2021] FCA 1384
CORPORATIONS – the GetSwift saga – story of the rise and fall of a nascent ‘tech start up’ listed on the ASX – market offering ‘software as a service’ – purported ‘exclusive multi-year’ agreements with 13 Enterprise Clients – underlying facts reveal agreements far less than certain –focus on influencing market perceptions through ‘price sensitive’ ASX announcements – ‘do or die’ approach to success – “[b]it by bit until we get to a $7.50 share price :)” – company re-domiciled to Canada during currency of regulatory proceeding
PRACTICE AND PROCEDURE – pleadings in continuous disclosure cases
CORPORATIONS – misleading and deceptive conduct claim – was it necessary? – s 1041H of the Corporations Act 2001 (Cth) and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) – consideration of a substantial number of representations – majority misleading or likely to mislead – consideration of continuing and future representations – representations made by an officer – whether two of the directors should be personally liable for GetSwift’s misleading and deceptive conduct – circumstances in which they were the directing mind of the company – where they drafted and/or authorised the transmission of ‘price sensitive’ announcements to the ASX
Australian Securities and Investments Commission Act 2001 (Cth) ss 12BA, 12BAA, 12BAB, 12BB, 12DA, 12DB, 19
Competition and Consumer Law Act 2010 (Cth) Sch 2 s 4
Corporations Act 2001 (Cth) ss 9, 79, 180(1), 206C(1), 206E(1), 674(2), 674(2A), 675, 676, 677, 708A(5)(e), 761A, 764A(1)(a), 1001A, 1002B(2)(a), 1041H, 1042C(1), 1317G(1A), 1317R

Fan v H&T Vic One Pty Ltd (Civil Claims) [2021] VCAT 1369
Misleading and deceptive conduct; unconscionable conduct; special disadvantage; limited ability in the English language; sections 18(1) and 21(1) of the Australian Consumer Law; Miller v BMW [2010] HCA 31; (2010) 241 CLR 357; Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447
H&T Vic One Pty Ltd ACN: 614 584 084 must pay Qiaoping Fan $34,670 under sections 236(1) and 243(d) of the Australian Consumer Law for the contravention of sections 18(1) and 21(1) of the Australian Consumer Law.

Caliskan v Edencraft International Pty Ltd (Civil Claims) [2021] VCAT 1344
Respondent manufactured marine vessels – applicant engaged respondent to manufacture and supply vessel hull and deck – applicant alleges breach of agreement by respondent and that vessel hull and deck not of acceptable quality or fit for purpose or reasonably fit for disclosed purposes – applicant alleged breach of Consumer Guarantees and misleading and deceptive conduct – applicant claims loss and damage – sections 18, 54, 55, 64, 236, 259, and 262 of the Australian Consumer Law and Fair Trading Act 2012 (Vic)
2. The Respondent is to pay to the Applicant the sum of $1680.

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