Category Archives: Consumer Law

ACCC launches petrol price savings website

The ACCC today launched a website which provides information that will allow motorists to pick the best time in a price cycle to refuel, promising savings of up to 20 cents per litre.

For more information visit https://www.accc.gov.au/consumers/petrol-diesel-and-lpg/petrol-price-cycles

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David Jones Ltd v Willis [1934] HCA 47 | 17 October 1934

ON 17 OCTOBER 1934, the High Court of Australia delivered David Jones Ltd v Willis [1934] HCA 47; (1934) 52 CLR 110 (17 October 1934).

http://www.austlii.edu.au/au/cases/cth/HCA/1934/47.html

Per Rich J at 118-9:

“..whenever the description of the goods enters into the transaction so that the buyer must be taken to rely upon it to a substantial degree as well as upon the identity of the goods, it is a sale by description. Therefore, if the description is a matter that influenced the buyer and had a material bearing on the decision to buy, even if it was not the only matter that influenced the buyer, then the sale is one by description.”

Goods which only have one specific use are not of merchantable quality if they are not fit for their purpose.

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McIlhenny Co v Blue Yonder Holdings Pty Ltd formerly trading as Tabasco Design & Anor [1997] FCA 962 | 18 September 1997

ON 18 SEPTEMBER 1997, the Federal Court of Australia delivered McIlhenny Co v Blue Yonder Holdings Pty Ltd formerly trading as Tabasco Design & Anor [1997] FCA 962 (18 September 1997).

It is possible for a trademark to refer to another well known trademark, as long as the goods or services are not likely to appear to be connected and there is no likelihood of deception or confusion.

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Australian Knitting Mills Ltd v Grant [1933] HCA 35 | 18 August 1933

ON 18 AUGUST 1933, the High Court of Australia delivered Australian Knitting Mills Ltd v Grant [1933] HCA 35; (1933) 50 CLR 387 (18 August 1933).

http://www.austlii.edu.au/au/cases/cth/HCA/1933/35.html

Per Dixon J at 418:

“The condition that goods are of merchantable quality requires that they should be in such an actual state that a buyer fully acquainted with the facts and, therefore, knowing what hidden defects exist and not being limited to their apparent condition would buy them without abatement of the price obtainable for such goods if in reasonably sound order and condition and without special terms.”

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NCAT Online Dispute Resolution

ON 1 AUGUST 2014, the NSW Civil and Administrative Tribunal commenced the pilot of Online Dispute Resolution, a web based tool allowing parties to selected small consumer claims to negotiate online without attending the Tribunal.

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NSW Civil and Administrative Tribunal

The NSW Civil and Administrative Tribunal (NCAT)http://www.ncat.nsw.gov.au/ncat/index.html commenced on 1 January 2014 pursuant to the NSW Civil and Administrative Act 2013 and Civil and Administrative Regulation 2013.

The NCAT takes over the functions of 22 former state tribunals, including:

  • Aboriginal and Torres Strait Islander Health Practice Tribunal
  • Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal
  • Administrative Decisions Tribunal
  • Charity Referees
  • Consumer, Trader and Tenancy Tribunal
  • Dental Tribunal
  • Guardianship Tribunal
  • Chinese Medicine Tribunal
  • Chiropractic Tribunal
  • Medical Radiation Practice Tribunal
  • Medical Tribunal
  • Nursing and Midwifery Tribunal
  • Occupational Therapy Tribunal
  • Optometry Tribunal
  • Osteopathy Tribunal
  • Pharmacy Tribunal
  • Physiotherapy Tribunal
  • Podiatry Tribunal
  • Psychology Tribunal
  • Local Government Pecuniary Interest and Disciplinary Tribunal
  • Local Land Boards
  • Victims Compensation Tribunal (transferred into the ADT in June 2013)
  • Vocational Training Appeals Panel.

The NCAT is constituted by a President (a Supreme Court judge), Deputy Presidents of each of the four divisions, a Principal Registrars and Members including Principal Member, Senior Members and General Members.

The NCAT has four divisions:

  • Administrative and Equal Opportunity, which deals with review of administrative decisions of government agencies and resolution of discrimination matters.
  • Consumer and Commercial, which deals with a broad number of disputes about the supply of goods and services, including agent commissions and fees; agricultural tenancies; boarding houses; consumer claims; conveyancing costs; dividing fences; holiday parks (long-term occupancy); home building; motor vehicles; pawnbrokers and second-hand dealers; residential parks; retail leases; retirement villages; social housing; strata and community schemes; tenancy; travel compensation fund appeals.
  • Guardianship, which has jurisdiction over people who live in NSW or hold property or financial assets in NSW: to make guardianship orders for the appointment of a private or public guardian; make financial orders for a private or public financial manager; provide consent for medical or dental treatment; review enduring powers of attorney; review an enduring guardianship appointment; approve a clinical trial involving people with decision-making disabilities.
  • Occupational, including: administrative review of licensing decisions with respect to transport drivers/operators, security guards, builders, real estate agents, motor dealers and repairers, pawnbrokers and second hand dealers, stock and station agents, business agents, travel agents, valuers and licenced conveyancers; professional discipline of occupations governed by a statutory council, board, panel or authority.

The current President is Justice Robertson Wright SC and the Deputy-Presidents are Magistrate Nancy Hennessy, Mr M D Schyvens, Mr Stuart Westgarth, The Hon. Wayne Haylen QC and Judge Kevin O’Connor AM.

The principal registry is located at Level 9, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000, tel 1300 006 228.

The divisional registries are:

  • Administrative and Equal Opportunity: Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000.
  • Consumer and Commercial: Level 12, 175 Castlereagh Street, Sydney NSW 2000 (also at Liverpool, Hurstville, Newcastle, Penrith, Tamworth and Wollongong).
  • Guardianship: Level 3, 2a Rowntree Street Balmain NSW 2041.
  • Occupational: Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000.

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Petelin v Cullen [1975] HCA 24 | 17 July 1975

ON 17 JULY 1975, the High Court of Australia delivered Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355 (17 July 1975).

http://www.austlii.edu.au/au/cases/cth/HCA/1975/24.html

Petelin owned land at Liverpool. He spoke little English and could not read English. Cullen through his agent sent Petelin $50 with a letter seeking his agreement to extend an option to purchase land for a further 6 months. Cullen’s agent then saw Petelin and asked him to sign to the letter that he received the $50. Petelin signed the letter believing he had signed a receipt, not an option.

Cullen sought an order for specific performance in the Supreme Court of NSW. The Supreme Court dismissed the action on the grounds that Petelin had made out the defence of non est factum. The NSW Court of Appeal then overturned the Supreme Court decision, ordering specific performance.

The High Court allowed Petelin’s appeal, overturning the Court of Appeal’s decision and dismissing Cullen’s action for specific performance.

The High Court found that Petelin was entitled to the defence of non est factum as he believed that he had signed a receipt, was not careless and that in any event, Cullen was not an innocent person without knowledge or reason to doubt the validity of the signature.

To make out a defence of non est factum, the defendant must show:

  • that he or she signed the document in the belief that it was radically different from what it was in fact, and
  • that (at least as against innocent persons) his or her failure to read and understand the document was not due to carelessness.

There is a heavy onus on the defendant to show that he or she believed the document to be radically different from what it was in fact.

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Sydney, Australia

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Commonwealth Bank and ASIC | Senate report

ON 26 JUNE 2014, the Senate Economics References Committee released it’s final report entitled Performance of Australian Securities and Investments Commission.

http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/ASIC/Final_Report/index

Of note, the committee found that there had been misconduct on the part of the advisors and planners within the Commonwealth Bank of Australia’s financial planning business and recommended that an enquiry, in the form of a judicial enquiry or Royal Commission, be established to investigate those matters as well as allegations of cover up.

It was recommended that the proposed inquiry identify the conduct amounting to breaches of law or professional standards and review all files to assess the appropriateness of the compensation process and the amounts of compensation offered by the bank.

The Bank’s CEO, Ian Narev, has apologised to the customers who received “poor advice” but and prefers to have an internal “independent” inquiry, called the Open Advice Review Program, rather than a Royal Commission.

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National Consumer Fraud Week

National Consumer Fraud Week 16-22 June 2014 commences today, coinciding with the release of the ACC’s report on Targeting Scams: http://www.accc.gov.au/publications/targeting-scams-report-on-scam-activity/targeting-scams-report-of-the-accc-on-scam-activity-2013.

The initiative of the Australian Consumer Fraud Taskforce aims to raise awareness about online scammers.  For more information see: http://www.scamwatch.gov.au/content/index.phtml/tag/fraudweek2014/

Peter O'Grady

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Rodrigues v Fitness First Australia Pty Ltd [2013] NSWSC 1140

Rodrigues v Fitness First Australia Pty Ltd [2013] NSWSC 1140 (21 August 2013)

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Sydney, Australia

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