False and Misleading Statements – Potential to attract criminal and civil penalties
On 19 January 2024, in Walker v Members Equity Pty Ltd (formerly Members Equity Bank Ltd) (ME) [2024] FCA 15, the Court imposed sentences against ME for false and misleading representations and failing to provide written notices. In the first criminal prosecution of its kind, ME was fined $820,000. The Court recognised a requirement to […]
ReadmoreIs the presence of a renter a barrier to execution of a court warrant?
Since around April 2011, the Sheriff’s Office of Victoria has taken the view that they would not execute a court warrant of possession against a person in occupation of land if they were under a residential rental agreement within the meaning of the Residential Tenancies Act 1997 (Vic) (RTA) and the mortgagee must instead comply […]
ReadmoreA new Banking Code of Practice is on the horizon
Background The Australian Banking Association’s (ABA) Banking Code of Practice (the Code) contains a set of contractually enforceable industry standards that customers and small businesses can expect subscribing banks to uphold. The Code has been in place in various forms since 1993, including a range of protections that are intended to complement and set higher […]
ReadmoreUnfair contract terms and your franchise agreement
As of 9 November 2023, changes to the unfair contract terms (UCT) regime have come into effect. Franchisors should be aware that unfair terms under the previous regime are void, while unfair terms under the new regime will be unlawful and significant penalties may apply (for companies, up to $50 million or even more). Unfair […]
ReadmoreThe deadline to update the Franchise Disclosure Register is 14 November 2023
Following the amendments to the Franchising Code of Conduct in 2021, the Franchise Disclosure Register (FDR) was established in November 2022. The FDR is administered by the Department of the Treasury and is accessible to the public, allowing prospective franchisees to access information about franchise opportunities. Purpose of the FDR The FDR aims to provide […]
ReadmoreDefamation – what is required to establish ‘serious harm’?
The Federal Court of Australia recently handed down a decision in Selkirk v Hocking (No 2)[1] shedding light on the serious harm element of the cause of action for defamation. Background In November 2019, Ms Selkirk was convicted of multiple counts of dishonestly obtaining financial advantage by deception by using falsified receipts to return goods […]
ReadmoreUnmasking errors – the TGA’s post-market face mask review
The Therapeutic Goods Administration (TGA) has recently had to make amends after releasing information about surgical face masks sponsored by M House Pty Ltd (M House) without authority under the Therapeutic Goods Act 1989 (Cth) (Act). The Australian Register of Therapeutic Goods (ARTG) saw a rapid rise of medical device inclusions in the wake of […]
ReadmoreASIC commences proceedings against Vanguard Investments
Further to our series of articles on ESG, on 24 July 2023 ASIC commenced proceedings seeking declarations, pecuniary penalties and adverse publicity orders against Vanguard Investments Australia Ltd (Vanguard) alleging misleading conduct in relation to claims about the applicability of environmental, social and governance (ESG) criteria applied to investments in an investment fund offered by […]
ReadmoreMislead or misread? How a simple miscalculation resulted in the setting aside of an otherwise valid Bankruptcy Notice
The Federal Court of Australia recently considered whether a Bankruptcy Notice with an arithmetical error in relation to the exchange rate and currency conversion contained a formal defect or irregularity that could be cured by section 306 of the Bankruptcy Act 1966 (Cth) (Act). Background This case concerns a judgment awarded by the High Court […]
ReadmoreASX Wolf in sheep’s clothing: Federal Court grants injunctive relief for ASIC over unlicensed financial advice
In late 2022, ASIC filed an application with the Federal Court, claiming that the Defendant, Mr Scholz, was conducting a financial services business by offering direct and indirect tips regarding the purchasing of shares in particular companies through Instagram stories, online seminars and Discord channels. The court decided that this activity constituted financial product advice, […]
ReadmoreSet off vs unfair preference claims – uncertainty resolved
By an Amended Special Case, Derrington J reserved for consideration by the Full Court of the Federal Court the following question: “Is statutory set-off, under s 553C(1) of the Act, available to the [appellant] in this proceeding against the [first respondent’s] claim as liquidator for the recovery of an unfair preference under s 588FA of […]
ReadmoreGadens assists ASIC to secure findings of contravention in failed managed investment scheme
Introduction In ASIC v Daly (Liability Hearing),[1] the fallout from the failure of Linchpin Capital Group Ltd (Linchpin) continued on 3 April 2023, when Justice Cheeseman in the Federal Court made findings of contravention of section 601FD of the Corporations Act 2001 (Cth) (the Act) sought by ASIC against four officers of Endeavour Securities (Australia) […]
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