consumer law

Tortious interference with contract – what must be proven?

Unlawful interference with contractual relations (Interference) is a tort that allows  damages to be claimed against a Defendant who has induced or procured a third party to breach their contractual obligations to the Plaintiff in the proceedings.  In essence, a Defendant’s intention to induce or procure an entity to act or refrain from acting whilst being aware that such an action would result in said entity breach its contractual obligations to the Plaintiff gives rise to the Interference.[1]  This article outlines the elements needed to be proven in order to establish an Interference. [Read more…]

Changes to monetary threshold for consumer contracts

For businesses that provide goods or services to non-consumers, the recent Treasury Laws Amendment (Acquisition as Consumer – Financial Thresholds) Regulations 2020 (Amendment) has the effect of widening the scope of the consumer guarantees regime under the Australian Consumer Law (ACL).  This means that, as of 1 July 2021, contracts that were not previously subject to the consumer guarantee protections (because the value of goods or services was less than $40,000) will be captured under the new regime. [Read more…]

Legal risks inherent in the In-App Purchase business model

In the post smart phone environment, software developers and publishers are increasingly providing end users (Users) with the opportunity to make micro-transactions (In-App Purchases) within their software (App). Under this business model, the publisher or developer offers their App, or at least a limited version of it, to consumers at no upfront cost. Users then may have the opportunity to make In-App Purchases using real world currency, such as:

  • a one off fee to access an advertisement free version of the App;
  • access to additional content within the App;
  • a digital currency for use within the App; or
  • consumable items such as extra lives or turns in games.

The In-App Purchase model has proven successful for many publishers, but as with all business models, it comes with its fair share of legal risk. [Read more…]

The risks of ‘manufactured’ business testimonials: a lesson from the ACCC

On 18 December 2015, the Federal Court handed down an order for relief based on a case initiated by the ACCC in July 2014.  The order imposed penalties on A Whistle & Co Pty Ltd (the Respondent) for breaching the Australian Consumer Law (ACL) by publishing fake customer testimonials.  Whilst it is common marketing practice to use testimonials to create the appearance of customer satisfaction, the judgment, Australian Competition and Consumer Commission v A Whistle & Co (1979) Pty Limited [2015] FCA 1447 demonstrates why businesses should ensure that they engage in genuine and legitimate marketing, and avoid misleading or deceiving their consumers. [Read more…]

Federal Circuit Court invalidates ‘no refunds’ clause

In a recent judgment (Ferme v Kimberley Discovery Cruises Pty Ltd [2015] FCCA 2384), the Federal Circuit Court held that a term of a cruise company’s standard conditions, which allowed the company to cancel a cruise for a wide range of reasons without giving any refunds to its passengers, was an ‘unfair term’ under the Australian Consumer Law (ACL) and therefore void. [Read more…]

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