In the media
New anti-scalping laws crack down on inflated bundle
deals
Victorian fans attending major sports and entertainment
events will be further protected from scalpers under new
legislation. The new measure will guard against unscrupulous
individuals and companies buying tickets and then obscuring
inflated resale prices for the seats in packages involving
hospitality, experiences or merchandise (16 November 2021).
More...
ASIC files contempt application against Mayfair 101
Director James Mawhinney
ASIC has filed a contempt application in the Federal Court
against James Mawhinney, the director of the Mayfair 101 group of
businesses. On 23 March 2021, the Federal Court ruled that
companies in the Mayfair 101 Group, of which Mr Mawhinney was a
director, made false, misleading, or deceptive representations in
ads for its debenture products (16 November 2021). More...
Alkaloids of Australia Pty Ltd pleads guilty to criminal
cartel charges
Alkaloids of Australia Pty Ltd has pleaded guilty to three
charges of criminal cartel conduct and has admitted a further seven
offences. The conduct involved price fixing, bid rigging and market
allocation arrangements with overseas pharmaceutical ingredient
suppliers. This follows and earlier guilty plea by Alkaloids'
former export manager (16 November 2021). More...
High Court denies Volkswagen leave to appeal $125
million penalty
The High Court has dismissed Volkswagen AG's
application for special leave to appeal the $125 million penalty
ordered by the Federal Court in December 2019 for making false
representations about compliance with Australia's diesel
emissions standards. The High Court's decision means the record
$125 million penalty imposed by the Federal Court
stands (12 November 2021). More...
ACCC probes flower industry over claims customers are
being scammed into buying from 'local' florists
A whistleblower at one of Australia's largest online
flower retailers said she was trained to deliberately mislead
customers. ACCC Chairman Rod Sims says he is 'extremely
concerned' about possible widespread deception in the flower
industry and the approach from Roses Only appeared to give the
false impression the businesses were local shops (13 November
2021). More...
Audio company Please Hold removes alleged unfair
contract terms for small business customers
UK based audio branding company Please Hold (UK) Limited
(PHMG) has committed to amend its contract terms
after an ACCC investigation into allegations that PHMG's
standard form contract contained unfair contract terms, and limited
consumer guarantee rights (11 November 2021). More...
Enforcing underquoting laws to protect home buyers -
News alert
Consumer Affairs Victoria is monitoring the real estate
industry for signs of underquoting, as Victoria reopens and
property sales ramp up. Under the laws, agents must not advertise a
property at a price below the estimated selling price, the
seller's asking price or a price that has been rejected as too
low by the seller (08 November 2021). More...
Cases
Stuart v Rabobank Australia
Ltd [2021] FCA 1388
BANKING AND FINANCIAL INSTITUTIONS - misleading or deceptive
conduct - financial products - loan facility - allegations that
respondent misled applicants by making representations as to loan
facility - whether representations were made - whether
representations were false or misleading - whether representations
contravened s 12DA of the Australian Securities and Investments
Commission Act 2001 (Cth) (ASIC Act) - whether
representations were fraudulent - tort of deceit - whether
provision of finance unconscionable - whether conduct contravened
ss 12CB and 12CC of the ASIC Act - whether respondent's conduct
at mediation unconscionable - cross-claim by respondent for
outstanding indebtedness
DAMAGES - ss 12GF and 12GM of the ASIC Act - tort of deceit -
causation - identification of counterfactual - whether
applicants' loss was result of respondent's conduct -
whether respondents have suffered loss or damage by reason of
applicants' default
LIMITATION OF ACTIONS - ss 12GF and 12GM of the ASIC Act -
applicants time barred - s 38 of Limitation of Actions Act 1974
(Qld) - whether applicants discovered the alleged fraud prior to
the end of the limitation period - applicants time barred
CONSUMER LAW - whether respondent contravened s 76 in sch 1 to the
National Consumer Credit Protection Act 2009 (Cth) (National Credit
Code) - whether loan advanced by respondent was "carried over
instrument" - whether loan facility was a credit contract -
whether loan was for personal, domestic or household purposes -
whether deed of forbearance was a credit contract - application
made to issue notice pursuant to s 78B of the Judiciary Act 1903
(Cth) (78B notice) due to alleged conflicting interpretations of
the National Credit Code - application to issue 78B notice
dismissed
EVIDENCE - proposed tender of expert reports - s 79(1) of the
Evidence Act 1995 (Cth) (Evidence Act) - whether
expert witnesses had requisite specialised knowledge - whether
opinions of expert witnesses based wholly or substantially on that
knowledge - reports inadmissible - alleged delay by respondent to
comply with discovery obligations - respondent's delay in
producing documents did not justify drawing of any adverse
inferences - application to adduce tendency evidence - s 97 of the
Evidence Act - whether reasonable notice provided - whether
proposed evidence has significant probative value - application
dismissed - admissibility of hardship evidence - efficient conduct
of hearing
PRACTICE AND PROCEDURE - application to set aside deed of
forbearance - whether equity will intervene to prevent
unconscientious reliance on deed of forbearance
CONTRACTS - whether binding contract entered into regarding carbon
farming project - whether any loss or damage flowed from alleged
breach of contract
Constitution s 51; Australian Securities and Investments Commission
Act 2001 (Cth) ss 12CB, 12CC, 12DA, 12GF, 12GM; Competition and
Consumer Act 2010 (Cth) s 87; Competition and Consumer Act 2010
(Cth) sch 2, The Australian Consumer Law s 238; Corporations Act
2001 (Cth) s 912A
Halal Certification Authority Pty Ltd v
Flujo Sanguineo Holdings Pty Ltd [2021]
FCA 1399
TRADE MARKS - trade mark registered by Halal Certification
Authority Australia Pty Ltd (HCA) in respect of classes 42 and 45
of services - where trade mark used as a packaging logo on
artificial sweetener products by respondents - where products
certified halal by HCA at various times and certificates issued -
where products manufactured by contract manufacturer who held
agreement with HCA - where certification had lapsed at two times -
where no permission was given to use the trade mark on packaging -
where there was no direct agreement between HCA and respondents -
whether trade mark infringement occurred because packaging was
substantially identical or deceptively similar to the goods or
services of registration per s 120(1) of Trade Marks Act 1995 (Cth)
- whether the trade mark was used as a sign that was substantially
identical or deceptively similar to the goods or services of
registration per s 120(2)(c) or (d) of the Act - whether
respondents could rely on good faith exception in s 122(1)(b)(i) of
the Act for use of the trade mark on the products - held: Trade
mark not being used on products as a trade mark for services -
held: Trade mark not used in respect of services of the same
description, or closely related to registered services - held: No
infringement within s 120 of the Act - held: Even if infringement
had been made out, good faith exception applied - claims
dismissed
CONSUMER LAW - where submitted that HCA, by the existence and use
of the trade mark, had acquired a substantial and valuable
reputation and that the respondents had made representation to
traders and consumers in relation to HCA and halal certification -
whether use of trade mark contravened ss 18 and 29(a), (b), (g) and
(h) of the Australian Consumer Law - whether respondents engaged in
tort of passing off - held: Ordinary consumer would not have
perceived necessary connection to HCA through the use of the trade
mark on the products - claims dismissed
TRADE MARKS - cross-claim - whether the register of trade marks
should be rectified by cancelling the trade mark pursuant to s
88(2)(a) of the Act as likely to deceive or cause confusion
Australian Consumer Law ss 18, 29(1); Competition and Consumer Act
2010 (Cth) sch 2
Trade Marks Act 1995 (Cth) ss 6, 7(4), 10, 17, 41, 88(2), 89,
92(4), 120(1), 120(2), 122(1), 169
Trade Marks Regulations 1995 (Cth) sch 1 pt 2 - Classes of
services
Australian Securities and Investments
Commission v GetSwift Limited (Liability
Hearing) [2021] FCA
1384
CORPORATIONS - the GetSwift saga - story of the rise and fall of a
nascent 'tech start up' listed on the ASX - market offering
'software as a service' - purported 'exclusive
multi-year' agreements with 13 Enterprise Clients - underlying
facts reveal agreements far less than certain -focus on influencing
market perceptions through 'price sensitive' ASX
announcements - 'do or die' approach to success -
"[b]it by bit until we get to a $7.50 share price :)" -
company re-domiciled to Canada during currency of regulatory
proceeding
PRACTICE AND PROCEDURE - pleadings in continuous disclosure
cases
CORPORATIONS - misleading and deceptive conduct claim - was it
necessary? - s 1041H of the Corporations Act 2001 (Cth) and s 12DA
of the Australian Securities and Investments Commission Act 2001
(Cth) - consideration of a substantial number of representations -
majority misleading or likely to mislead - consideration of
continuing and future representations - representations made by an
officer - whether two of the directors should be personally liable
for GetSwift's misleading and deceptive conduct - circumstances
in which they were the directing mind of the company - where they
drafted and/or authorised the transmission of 'price
sensitive' announcements to the ASX
Australian Securities and Investments Commission Act 2001 (Cth) ss
12BA, 12BAA, 12BAB, 12BB, 12DA, 12DB, 19
Competition and Consumer Law Act 2010 (Cth) Sch 2 s 4
Corporations Act 2001 (Cth) ss 9, 79, 180(1), 206C(1), 206E(1),
674(2), 674(2A), 675, 676, 677, 708A(5)(e), 761A, 764A(1)(a),
1001A, 1002B(2)(a), 1041H, 1042C(1), 1317G(1A), 1317R
Fan v H&T Vic One Pty Ltd (Civil
Claims) [2021] VCAT
1369
Misleading and deceptive conduct; unconscionable conduct; special
disadvantage; limited ability in the English language; sections
18(1) and 21(1) of the Australian Consumer Law; Miller v
BMW [2010] HCA 31; (2010) 241 CLR
357; Commercial Bank of Australia v
Amadio [1983] HCA 14; (1983) 151 CLR 447
H&T Vic One Pty Ltd ACN: 614 584 084 must pay Qiaoping Fan
$34,670 under sections 236(1) and 243(d) of the Australian Consumer
Law for the contravention of sections 18(1) and 21(1) of the
Australian Consumer Law.
Caliskan v Edencraft International Pty
Ltd (Civil Claims) [2021] VCAT
1344
Respondent manufactured marine vessels - applicant engaged
respondent to manufacture and supply vessel hull and deck -
applicant alleges breach of agreement by respondent and that vessel
hull and deck not of acceptable quality or fit for purpose or
reasonably fit for disclosed purposes - applicant alleged breach of
Consumer Guarantees and misleading and deceptive conduct -
applicant claims loss and damage - sections 18, 54, 55, 64, 236,
259, and 262 of the Australian Consumer Law and Fair Trading Act
2012 (Vic)
2. The Respondent is to pay to the Applicant the sum of $1680.
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.
