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 FEE-HELP 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).
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
