In the media

Fake blogger Belle Gibson faces jail if she fails to pay $30k
The 25-year-old fake wellness blogger is ordered to pay $30,000 in costs — with a further six-figure penalty possible — over misleading and deceptive conduct (07 April 2017).  More...

Nurofen manufacturer loses appeal against $6m fine for misleading consumers
The High Court rejects the manufacturer of Nurofen's appeal against being issued the largest fine on record for breaching Australian consumer law over its specific pain range (06 April 2017).  More...

ACCC takes action against Apple over alleged misleading consumer guarantee representations
The ACCC has instituted proceedings in the Federal Court against Apple Pty Limited and its US-based parent company, Apple Inc., (together, Apple) alleging that Apple made false, misleading, or deceptive representations about consumers’ rights under the Australian Consumer Law (06 April 2017).  More...

Banks to assist customers disadvantaged by dodgy loan assessments: ASIC
Eight home lenders, including three of Australia's major banks, will be required to give redress to victims of irresponsible lending under a deal with the corporate watchdog (03 April 2017).  More...

Tougher penalties under new Horticulture Code
The revised nation-wide Horticulture Code, which sets out mandatory requirements for traders and agents operating in Australian fresh fruit and vegetable markets, will include the potential for penalties of up to $54,000 when it comes into effect 1 April 2017 (31 March 2017).  More...

ACCC releases Statement of Issues on proposed acquisition of InterGrain by AGT
The ACCC has issued a Statement of Issues expressing initial concerns about the proposed acquisition of InterGrain Pty Ltd by Australian Grain Technologies Pty Ltd (AGT). The ACCC’s preliminary view is that the proposed acquisition may substantially lessen competition in relation to the breeding and development of barley seed varieties for the Australian market (31 March 2017).  More...

Competition changes: Levelling the playing field for small business
A Landmark review of Australian competition policy, introduced into Federal Parliament this week, backs small businesses to grow, innovate and create more jobs, Small Business Minister Michael McCormack says. Mr McCormack said the Competition and Consumer Amendment (Competition Policy Review) Bill 2017, implements a number of recommendations from the Harper Review to back small business (31 March 2017).  More...

Spotless takes Downer EDI to Takeovers Panel over 'misleading' statements
Spotless Group, which is the subject of a $1.2 billion hostile takeover bid from Downer EDI, has asked the Takeovers Panel to stop the dispatch of Downer's bidder statement on the grounds it contains "misleading and deceptive statements".  More…

ASIC reports on Sydney Stock Exchange’s listing standards
ASIC has today released its assessment report on the listing standards of the Sydney Stock Exchange Limited (SSX). The report concludes that SSX should make a number of changes to improve compliance with its statutory obligations. These changes include putting adequate arrangements in place to manage conflicts between its commercial interests and the need for it to operate a listing market that is fair, orderly and transparent (30 March 2017).  More...

ACCC denies authorisation for banks to collectively bargain with and boycott Apple Pay
Chairman Rod Sims indicated that the ACCC was 'not satisfied, on balance, that the likely benefits from the proposed conduct outweigh the likely detriments. The ACCC is concerned that the proposed conduct is likely to reduce or distort competition in a number of markets (31 March 2017).  More...

Federal Court confirms ACCC approach to setting Telstra fixed-line access pricing
The Federal Court of Australia has dismissed Telstra’s application for judicial review of the ACCC’s fixed-line services final access determinations made in October 2015. The ACCC’s 2015 final access determinations required a one-off uniform decrease of 9.4 per cent in access prices from previous levels for the seven declared fixed-line access services (28 March 2017).  More...

ACCC issues draft assessment of NBN Co SAU variation
The ACCC has today issued a draft decision to reject NBN Co’s proposed variation to its Special Access Undertaking (SAU) to incorporate new technologies such as fibre-to-the-node (FTTN), fibre-to-the-building (FTTB) and hybrid fibre coaxial (HFC) (28 March 2017).  More...

Unfair contract terms under scrutiny
Since the introduction of the new business-to-business (B2B) unfair contract laws were introduced in November, the ACCC has received 48 complaints from businesses about unfair contract terms. The ACCC says a number of clauses it identified as being potentially unfair continue to be used in standard form contracts (28 March 2017).  More...

Australian Vocational Learning Centre agrees to make repayments for VET FEE-HELP diploma courses
In a court-enforceable undertaking, AVLC has admitted that between 1 July 2014 and 30 April 2015, through the conduct of certain marketing agents, it made false or misleading representations to consumers, including that the VET FEEHELP courses were free, government funded or specifically for low-income individuals (27 March 2017).  More...

Government announces review into retail electricity prices
The Federal Government has ordered the consumer watchdog to look into retail electricity prices amid a spike in power costs for consumers on Australia's east coast (26 March 2017).  More...

ASIC releases findings of CommInsure investigation
ASIC has released a public report today on its investigation into the life insurance business of CommInsure.  In the course of the investigation, ASIC identified a number of areas where CommInsure needs to make improvements to its claims handling processes (23 March 2017).  (Report) More...  (ASIC) More...

Remove claims handling exemption under law
ASIC has once again called for the exemption removal of insurance claims handling from the Corporations Law after CommInsure was cleared of any wrongdoing as per the law. Kell’s calls for ASIC’s penalty powers to be increased to enable it to enforce more stringent penalties for misconduct in relation to insurance claims (24 March 2017).  More...

Cases

Ceccon Transport Pty Ltd & Ors v Tomazos Group Pty Ltd [2017] NTSC 25
CONTRACTS – Construction and Interpretation of Contracts – Objective theory of contract – Use of post contractual communications – Identity of contracting party.
TORTS – Negligence – Negligent misstatement – Duty of care – Realisation and intention of representor – Nature and purpose of the representation – Reliance by representee – Actionable representation not made.
COMPETITION AND CONSUMER LAW – Misleading and deceptive conduct – s 18 Australian Consumer Law - Representations with respect to future matters under s 4 - Trade or commerce.
ESTOPPEL – General principles - Estoppel by encouragement - Equitable estoppel not available to assist a person to enforce an agreement that would be void at law and contrary to public policy - clean hands.
EQUITY – Fiduciary Obligations - Breach of Fiduciary duty – Fiduciary relationships.
TORTS – Interference with contractual and other relations - Inducing breach of contract - Wrongful interference with a contract by unlawful means – Earlier agreement superceded by formal contract.
Competition and Consumer Act 2010 (Cth) Schedule 2, The Australian Consumer Law s 18, s 4.

White v Quest Rosehill Pty Ltd [2017] NSWSC 238
Declaratory relief to be given as per paragraph 145 of the judgment.
LANDLORD AND TENANT – leases and tenancy agreements – construction and interpretation – leases impose obligation of repair and maintenance on landlord – leases confer certain rights upon landlord to facilitate proposed sale of leased property – whether notice that landlord must undertake repair and maintenance works validly issued – whether tenant obliged to provide landlord with access to properties to assess scope of required works – extent of landlord’s rights in relation to proposed sale of leased property – obligation to do all things necessary to enable other party to perform – obligation of co-operation – whether tenant engaged in unconscionable conduct – declaratory relief granted - Australian Securities and Investments Commission Act 2001 (Cth), s 12CB; Competition and Consumer Act 2010 (Cth), Sch 2, ss 21, 22, 237.

Chowder Bay Pty Ltd v Paganin [2017] FCA 332
CONSUMER LAW – whether respondents engaged in misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth) – where applicants invested in joint venture for development of a resort pursuant to syndicate agreements – joint venture debt to be repaid from sale of villas comprising the resort – whether first and second respondents were involved or engaged in misleading or deceptive conduct as directors of companies – companies applied to bank for a loan facility to finance the development – securities given by applicants to bank in respect of loan facility – whether valuations prepared by the third and fourth respondents for bank were misleading or deceptive.
CONSUMER LAW – whether applicants suffered loss or damage pursuant to s 82 of the Trade Practice Act 1974 (Cth) – applicants claim bank relied on valuations in providing financing for resort development – whether such reliance caused applicants to suffer loss – whether applicants entitled to damages for loss of opportunity to have development property sold – whether applicants entitled to recover legal costs incurred in related proceedings – whether related proceedings commenced as “defensive proceedings”.  Trade Practices Act 1974 (Cth) ss 52, 82.

David Clarke Air Conditioning Pty Ltd as trustee for The David Clarke Air Conditioning Trust v Quann [No 3] [2017] WASC 91
Contract - Oral agreement - Terms of oral agreement - Where precise terms not capable of ascertainment - Contemporaneous documents - Surrounding circumstances - Turns on own facts.
Equity - Fiduciary duties - Conflict of interest - Whether fiduciary duties exist - Whether fiduciary duties breached - Turns on own facts.
Contract - Misleading representation - Fair Trading Act 1987 (WA) - Turns on own facts.
Trusts - Alienation of property - Whether transaction defeats the interests of creditors - Declaration to void transaction – Section 89 Property Law Act 1969 (WA) - Turns on own facts.  Fair Trading Act 1987 (WA), s 10, s 79.

P.T. Ltd v NB2 Pty Ltd [2017] NSWSC 309
TRADE PRACTICES – misleading or deceptive conduct – whether representations made – whether reliance – unconscionable conduct – s 51AC Trade Practices Act 1974 (Cth) – RETAIL LEASES – unconscionable conduct – s 62B Retail Leases Act 1994 (NSW) – claim for compensation – s 34(1)(b) Retail Leases Act 1994 (NSW). 

Contacts:
Melbourne
Howard Rapke, Managing Partner, Melbourne
T: +61 3 9321 9752
 
Sydney
Ian Robertson, National Managing Partner
T: +61 2 8083 0401
 
Brisbane
Paul Venus, Managing Partner, Brisbane
T: +71 7 3135 0613
 
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 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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