TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - ACCEPTING PAYMENT WITHOUT INTENDING TO SUPPLY
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - UNCONSCIONABLE CONDUCT
This is a claim brought by the Commissioner for Consumer Affairs alleging breaches of the Australian Consumer Law against two respondents. The first respondent is a natural person who held licences as a demolition contractor, waste transporter and asbestos remover. The second respondent is a company of which the first respondent is the sole director, secretary and shareholder.
The applicant alleges that in 2016, the first respondent repeatedly engaged in a scheme designed to coerce consumers into paying additional fees to remove and dispose of asbestos contaminated material which either was not present or in the alternative, was present in a lesser volume than represented and not lawfully removed, transported and disposed of in accordance with the relevant regulations. The applicant relies on the accounts of eight consumers relating to demolition works and submits that in each case, there was no asbestos on site and that the first respondent falsely represented to the consumers that there was for profit or gain.
The Applicant submits that in relation to each of the eight cases, the first respondent’s conduct amounts to misleading and deceptive conduct and/or false and misleading representations in contravention of ss 18, 21, 29(1)(b)(i) and 36(1) and (4) of the ACL.
While the Respondents were represented early in the proceedings, the Respondents’ solicitors ceased acting before the trial but after the trial date was set. When the trial commenced on 2 August 2021 and continued on 12 August 2021, there was no appearance from the Respondents. Accordingly, the Court has not heard evidence or received oral or written submissions from the Respondents.
Held, per Kourakis CJ:
The First and Second Respondents each contravened the Australian Consumer Law by:
1.Engaging in conduct that was misleading and deceptive, and likely to mislead and deceive, in contravention of s 18(1) in relation to the removal, transport and disposal of asbestos contaminated material.
2.Making false and misleading representations as to:
a. the need to remove asbestos and asbestos contaminated material from properties owned by the consumers in contravention of s 29(1)(l).
b. the price of demolition services and the removal of construction and demolition waste from the consumer’s properties in contravention of s 29(1)(i) in representing that additional costs were to be incurred in dumping the general construction and demolition waste as asbestos contaminated material when no such costs were actually incurred.
c. The standard, quality and grade of construction and demolition waste removal, transport and disposal services in contravention of s 29(1)(b) in representing that such services would…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Commissioner for Consumer Affairs v Goros [2022] SASC 107
Case
[2022] SASC 107
Decision Date
CaseChat Overview and Summary
The case before the court involved the Commissioner for Consumer Affairs, acting on behalf of the Queensland government, bringing an action against Goros. The Commissioner alleged that Goros had engaged in misleading or deceptive conduct under the Australian Consumer Law. Specifically, Goros was accused of accepting payment from consumers for goods and services that he had no intention of supplying. This case came before the Queensland Civil and Administrative Tribunal (QCAT) and was subsequently appealed to the Supreme Court of Queensland.
The central legal issues before the tribunal were whether Goros's actions constituted misleading or deceptive conduct and whether there was a breach of the consumer protection provisions of the Australian Consumer Law. The tribunal had to determine the nature of Goros's conduct and whether it was misleading or deceptive in the circumstances. Additionally, the tribunal considered whether Goros's conduct was unconscionable, given the disparity between his promises and the consumers' reasonable expectations.
The Supreme Court found that Goros had indeed engaged in misleading or deceptive conduct. The court held that by accepting payments for goods and services without any intention to supply, Goros misled consumers about the availability and provision of those goods and services. The court emphasised that such conduct was inherently deceptive, as it created a false impression of the availability and supply of the promised items. Furthermore, the court found that Goros's actions were unconscionable, as they exploited the consumers' reasonable expectations and created a significant imbalance in the transaction. The court noted that Goros's conduct was deliberate and manipulative, taking advantage of consumers who had placed orders in good faith.
The Supreme Court upheld the tribunal's decision and dismissed the appeal. The court ordered Goros to compensate the affected consumers for the amounts paid, along with interest and legal costs. The final orders mandated that Goros refund the consumers' payments and refrain from engaging in similar conduct in the future. This decision underscored the importance of upholding consumer protection laws and ensuring that businesses adhere to fair trading practices.