Australia: Inside track: Competition and Consumer Law - In the media, practice and regulation, and cases

Last Updated: 13 September 2019
Most Read Contributor in Australia, September 2019

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

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions