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Inside track: Competition & Consumer

24 November 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Court finds Jayco misled a consumer but otherwise dismisses ACCC’s case
After finding that Jayco had made false or misleading representations to one consumer, the Court dismissed the remainder of the ACCC’s case, finding that Jayco did not make false or misleading representations to the three other consumers or act unconscionably towards the four consumers. The Court found that the caravans purchased by the consumers were not of acceptable quality, and that defects in three of the caravans were major (20 November 2020).  More...

Peters allegedly hindered or prevented competition in ice-cream supply
The ACCC has instituted Federal Court proceedings against Australasian Food Group Pty Ltd, trading as Peters Ice Cream (Peters), alleging it engaged in conduct which hindered or prevented competition for the supply of single-wrapped ice creams to petrol and convenience retailers (20 November 2020).  More...

NIBA examines Hayne legislative package details
The National Insurance Brokers Association is examining a legislative package tabled in Federal Parliament last week that introduces reforms recommended by the Hayne royal commission around add-on sales, hawking and claims handling (16 November 2020).  More...

Treasury moves to strengthen UCT protection regime
Unfair contract terms in standard form contracts will be outlawed and courts given powers to impose civil pecuniary penalties for contraventions, Treasury announced last week following a public consultation on ways to improve protections for small businesses and consumers (16 November 2020).  More...

Katy Perry faces a lawsuit from Australian designer Katie Perry for alleged trademark infringement
Lawyers for Katy admit the Katy Perry brand is “deceptively similar” to the Australian designer’s trademark. They allege that the designer’s use of her trademark is “contrary to law” and amounts to misleading or deceptive conduct and unlawful passing off because consumers might believe Katy is associated with the Australian designer’s clothing (14 November 2020).  More...

Allianz Australia issues statement amid class action
On behalf of motorists, Maurice Blackburn is accusing the insurer of having paid lucrative commissions to dealers in exchange for promoting “unduly expensive” policies which the law firm claims did not provide customer value. Additionally, Watson’s camp is pointing to alleged conduct that is said to have been misleading or deceptive (19 November 2020).  More...

No copyright in upmarket Australian designer bags, court rules
It is the distinctive neoprene tote that spawned countless copycats, but the Federal Court has ruled Australian brand State of Escape's bag is not protected by copyright law. But the brand was able to crack down on misleading marketing claims made by a business claiming to be "home to the famous neoprene totes"(13 November 2020).  More...

Motor dealer fined $15,000 after misleading buyers
A Runaway Bay motor dealer has been ordered to pay $15,000 in fines after prosecution by the Office of Fair Trading (OFT) for misleading car buyers and failing to supply the vehicles. Fair Trading Executive Director Brian Bauer said it was completely unacceptable for a dealer to purport to sell the same car to multiple consumers (11 November 2020).  More...

Choice hands Shonky awards to InvoCare funerals and Harvey Norman's partnership with Latitude Finance
Allegations of questionable credit practices, unclear funeral pricing and deceptive sales tactics have put five products and businesses in the firing line of this year's Shonky awards (10 November 2020).  More...

Health survey sales tricks hurt older Australians: CHOICE Shonkys
Revitalife has received a CHOICE Shonky award for targeting older Australians with a misleading “health survey” and selling expensive “therapeutic” beds with questionable benefits, and  believe Revitalife has breached the Australian Consumer Law by engaging in misleading and deceptive conduct (09 November 2020)..  More...

Save money when grocery shopping

Consumer Affairs Victoria is reminding Victorians an easy way to save money when grocery shopping is by comparing the price per unit of items. Director of Consumer Affairs Victoria said unit pricing allows consumers to quickly and accurately compare the cost and value of grocery products.  More information on unit pricing and where to locate it on different packages can be found on the Grocery unit prices page on the ACCC website (09 November 2020).  More...

Funeral insurer accused of targeting vulnerable Aboriginal communities now facing deceptive conduct charge
A company accused of misleading vulnerable Aboriginal people to sell low-value funeral insurance, including cover for children and babies, is now being sued by the Australian corporate regulator for allegedly deceptive conduct (08 November 2020).  More...

Practice and regulation

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 24 April 2020, the reporting date was extended from the first sitting day in October 2020 to 16 April 2021.


Aardwolf Industries LLC v Tayeh [2020] NSWCA 301
NEGLIGENCE – duty of care to avoid economic loss – whether vulnerability required – applicants pleaded vulnerability as an essential element of duty – no obligation on primary judge to consider alternatives to that position – no relevant vulnerability due to applicants’ ability to protect themselves from consequences of liquidators’ actions CONSUMER LAW – misleading or deceptive conduct – whether reliance on accuracy of recitals to deed – clear inference from evidence that person knew of true position CONSUMER LAW – misleading or deceptive conduct – whether conduct “in trade or commerce” – court-appointed liquidators performing statutory functions – assignment of property with view to facilitating business interests of purchaser arguably had an essentially trading or commercial character CORPORATIONS – leave to commence action against court-appointed liquidators – governing principles – relevance of lengthy and inadequately explained delay

Wormald v Maradaca Pty Ltd [2020] NSWCA 289
(1) Appeal and cross-appeal allowed.
MISLEADING OR DECEPTIVE CONDUCT – Misleading or deceptive conduct – misleading or deceptive conduct by silence - alleged non-disclosure relating to sale of shares in private company – where purchaser was an experienced commercial participant – whether primary judge erred in characterising specific representation as providing an “assurance” to the purchaser of shares in private company – whether primary judge erred in finding that the purchaser had a “reasonable expectation” that certain disclosures would be made – whether any misleading or deceptive conduct was causative of loss or damage – where as a matter of common sense causation, loss sustained was due to a calculated risk by an experienced commercial participant, and not by any alleged misleading or deceptive conduct
Civil Procedure Act 2005 (NSW) s 100
Competition and Consumer Act 2010 (Cth) sch 2 – Australian Consumer Law s 18
Trade Practices Act 1974 (Cth) s 52

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