Senga v Kolinvest Pty Ltd

Senga (the applicant) brought proceedings against Kolinvest Pty Ltd (the respondent) in the Federal Court of Australia. The dispute concerned the respondent's alleged contravention of s 18 of the Australian Consumer Law (ACL), which prohibits misleading or deceptive conduct in trade or commerce. The applicant sought declarations and an injunction to restrain further contraventions.

The primary legal issue before the court was whether the respondent's conduct in marketing and selling certain investment schemes constituted misleading or deceptive conduct under s 18 of the ACL. Specifically, the court had to determine if representations made by the respondent regarding the nature, risks, and potential returns of these schemes were false or likely to mislead a reasonable consumer.

Judge McNab found that the respondent had engaged in misleading and deceptive conduct. The court reasoned that the representations made by the respondent, particularly concerning the guaranteed nature of returns and the low risk profile of the investments, were not supported by the evidence and were likely to mislead consumers into believing they were investing in a secure and profitable venture when this was not the case. The court applied the principles established in cases concerning misleading representations about financial products, focusing on the overall impression created by the representations and the likely impact on the target audience.

The court made declarations that the respondent had contravened s 18 of the ACL and granted an injunction restraining the respondent from continuing to engage in similar conduct.