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Inside track: Competition and Consumer Law

03 September 2019

#Competition & Consumer Law

Inside track: Competition and Consumer Law

In the media

Action against BlueScope for alleged cartel conduct
The ACCC has instituted civil proceedings in the Federal Court against BlueScope Steel Limited (BlueScope) and its former general manager sales and marketing, Mr Jason Ellis, for alleged cartel conduct in relation to the supply of flat steel products with agreements containing a price fixing provision (30 August 2019).   More...

Online publishing company and former director found liable for misleading and deceptive statements
The Federal Court of Australia has found an AFSL holder and its former director made misleading and deceptive statements about an investment strategy targeting retired investors and investors approaching retirement, said to mimic the performance of the Australian Government’s Future Fund (30 August 2019).  More...

Rural Funds Group to sue US short seller
In a release to the ASX the Rural Funds Group announced it has instructed law firm Clayton Utz to commence legal action against Bonitas for “misleading and deceptive conduct” as a result. “The independent investigation conducted by EY concludes that the assertions contained within the Document are not substantiated (27 August 2019).  More...

Global shipping company, Wallenius Wilhelmsen Ocean AS, charged with criminal cartel conduct
The CDPP has laid charges against Wallenius Wilhelmsen Ocean AS (WWO), a Norwegian-based global shipping company, alleging criminal cartel conduct. First mention is listed for 29 August (23 August 2019).  More...

Advertisers need to act now in response to the ACCC’s Digital Platforms Inquiry
If the ACCC's recommendations are implemented, big changes could be facing the advertising industry, advertisers need to get ahead of the increased scrutiny and regulation. The Australian Competition and Consumer Commission (ACCC) is already flexing its muscles in respect of misleading and deceptive conduct under consumer law (21 August 2019).  More...

Water filter cartridge business likely to have misled customers
Saipol Technologies Pty Ltd (Saipol), a water filter cartridges business, has acknowledged it was likely to have breached the Australian Consumer Law (ACL) by engaging in misleading or deceptive conduct and making false or misleading representations regarding its water filter cartridges (20 August 2019).  More...

Lawyers out as Pendolino demands $20 million over development deal
Zoccali alleges misleading and deceptive conduct, according to the letter from Horton to Tallawoladah seen by CBD, which ended his plans to open a new eatery called Venetian Republic in the refurbished Campbell’s Store development at the Rocks (20 August 2019).  More...

Opioid marketing scrutinised by TGA, questioned by RACGP
The Therapeutic Goods Administration has confirmed it is examining opioid marketing material aimed at GPs. Asked by Centre Alliance Senator Stirling Griff whether the Government would close what he dubbed a loophole allowing misleading marketing material aimed at GPs, Senator Cash said that if such a loophole were discovered, the Federal Health Minister would ‘take the appropriate action’ (19 August 2019).  More...

Practice and regulation

New Gift Card Laws
The Australian Consumer Law (ACL) has been amended to provide protections for gift card consumers across Australia. With some exemptions, the ACL will: require minimum three year expiry periods for gift cards; require gift cards to display expiry dates; and ban most post purchase fees on gift cards.
These changes apply to gift cards supplied to consumers on or after 1 November 2019.
Further information can be found in the Explanatory Memorandum to the Treasury Laws Amendment (Gift Cards) Act 2018 and the Explanatory Statement to the Treasury Laws Amendment (Gift Card) Regulations 2018.

ACCC Digital Platforms Inquiry Reminder
The report contains 23 recommendations, spanning competition law, consumer protection, media regulation and privacy law, reflecting the intersection of issues arising from the growth of digital platforms. Before a detailed Government response is provided a further consultation process will take place. It will run for 12 weeks, after which the Government intends to release its response (by the end of 2019). Further details to follow on Digital Platforms page.

Cases

Eckford v Six Mile Creek Pty Ltd (No 2) [2019] FCA 1307
TRADE PRACTICES – misleading or deceptive conduct contrary to s 52(1) of Trade Practices Act 1974 (Cth) – false or misleading representation concerning use to which land capable of being put contrary to 53A(1)(b) of Trade Practices Act 1974 (Cth) – whether vendor developer misrepresented that lots were “sold” at particular prices when contracts only exchanged and vendor believed purchasers would not complete contracts for sale – whether developer misrepresented that “sold” lots were burdened by  building  covenants restricting height of  building construction  and vegetation – where lots marketed as part of sale of estate development – meaning of “sold” in real estate marketing context where contract for sale exchanged but completion had not occurred – whether applicant relied on representations – whether representations were with respect to a future matter under s 51A of Trade Practices Act 1974 (Cth) – where developer did not have reasonable grounds for making representations as to future matters – contraventions found – where injunctions could be ordered but not appropriate because of impact on third parties – compensation awarded under s 87(1) and (2) of Trade Practices Act 1974 (Cth)
TORTS – deceit – whether developer fraudulently represented that lots were sold at particular prices – where developer believed that contracts for sale of lots were not bona fide and “dodgy” – where contracts conditional and settlement of contracts extended – where nominal deposits in contracts for sale were low and unpaid – measure of damages awarded for tort of deceit
LIMITATION OF ACTIONS – whether commencement of period of limitation for deceit postponed under s 38(1) of Limitation of Actions Act 1974 (Qld) – where applicant enquired of developer and its agent about whether neighbouring lots were sold with burden of building covenants restricting height of  buildings  and vegetation – where developer and its agent fraudulently concealed true position that neighbouring lots were sold without restrictions on  building  height or vegetation
LIMITATION OF ACTIONS – where applicant precluded by s 82(2) of Trade Practices Act 1974 (Cth) from recovering damages under s 82(1) – where applicant sought injunctions under s 80 but Court exercises discretion not to order – whether compensation could be ordered under s 87(1) and (2) despite barring of claim for loss or damage under s 82(2) where no limitation period exists for commencing proceeding seeking injunctive or other relief under ss 80 and 87 of Trade Practices Act 1974 (Cth)

Longjing Pty Ltd v Perpetual Nominees Limited [2019] NSWSC 1098
2. Orders that there be judgment for the Cross-Claimant against each of the Cross-Defendants in the sum of $252,936.
CONTRACTS – Construction – Principles – Determining when Lease commenced pursuant to clauses within “Agreement to Lease” and “Lease” – Several potential dates for commencement of lease were submitted by Defendant – Plaintiffs argued lease did not commence and no Lease Commencing Date – Commercially unrealistic to conclude that no lease had commenced in the light of the parties’ conduct
CONTRACTS – Unconscionable conduct –  Misleading  or  deceptive conduct  – Whether Defendant’s conduct in terminating lease is unconscionable pursuant to meaning within s 46A of the Retail Shop Leases Act 1974 (Qld) or pursuant to s 20 or s 21 of the Australian Consumer Law, or  misleading  or  deceptive conduct
CONTRACTS – Breach of contract – Parties entered into a contract consisting of an Agreement for Lease and Lease of certain premises – Whether Plaintiff in breach of contract – Whether Defendant entitled to terminate lease
CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Quantum of damages agreed to by the parties during course of hearing

Khabiya t/as Samso Wall Printing v Sachdeva & Ors [2019] NSWDC 431
CONTRACT – supply of wall printing machinery – breach of contract – existence of oral contract –whether damage was caused.   DAMAGES – breach of warranty – loss of profits – cost of rectification – reliance damages.   TRADE PRACTICES – misleading or deceptive conduct – whether pre-contractual representations were made – whether the misrepresentations were false, misleading or deceptive – whether statement about “quality” of product actionable representation or ‘puffery’ – ancillary liability – whether agent directly liable for any misrepresentation – whether agent can only be liable as accessory for misleading or deceptive conduct – reliance.   ESTOPPEL– whether estoppel lies in respect to verbal guarantee that is unenforceable for non-compliance with requirement of writing

Harris v K7@Surry Hills Pty Ltd [2019] VSC 551
PROPERTY LAW – Sale of land – Whether lawful rescission or wrongful repudiation by purchaser – Anticipatory breach by vendor of special condition in contract – Purchaser lawfully rescinded contract – Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115.
PROPERTY LAW – Whether purchaser rescinded contract pursuant to s 9AC(2) of the Sale of Land Act 1962 (Vic)
Claims: defendant engaged in misleading or deceptive conduct  as to the car parks and storage cages that the plaintiff was to be provided under the contract of sale
Held: The plaintiff succeeds in his claim for a declaration that he has validly rescinded the Contract and the return of the deposit of $85,000 together with interest

Disclaimer
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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future. 

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Howard Rapke

Howard Rapke

Managing Partner

Melbourne

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Ian Robertson AO

Ian Robertson AO

National Managing Partner

Sydney

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Paul Venus

Paul Venus

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Brisbane

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