Receive the latest mybusiness news
Copyright © 2020 MOMENTUMMEDIA

Unconscionable conduct ruling a ‘landmark’ decision, says ACCC

Adrian Flores
Adrian Flores
23 March 2021 2 minute readShare
Unconscionable conduct ruling a landmark decision

A decision of the Full Federal Court clarifying the definition of unconscionable conduct has been viewed by the competition regulator as “a landmark decision” for small businesses.

The Full Federal Court upheld an appeal by the ACCC declaring that Quantum Housing Group Pty Ltd engaged in an unconscionable system of conduct in its dealings with investors regarding the National Rental Affordability Scheme (NRAS), and was in breach of the Australian Consumer Law.

The ACCC alleged that Quantum made false or misleading representations and engaged in systemic unconscionable conduct by pressuring investors in the NRAS to terminate agreements with their existing property managers and engage a property manager approved by Quantum.

In addition, the ACCC said Quantum failed to tell investors that it had commercial links with the property managers it recommended.

The ACCC also alleged that Quantum’s sole director, Cheryl Howe, was knowingly concerned in this conduct.

Quantum and Ms Howe subsequently admitted liability for both false or misleading representations and unconscionable conduct.

In June 2020, the court declared that Quantum had made false or misleading representations, but was not satisfied that its conduct was within the statutory notion of unconscionable conduct because it had not been demonstrated that the investors were at a disadvantage or had some vulnerability which had been exploited by Quantum.

The judge ordered Quantum to pay $700,000 in penalties and Ms Howe to pay a penalty of $50,000 for being knowingly concerned in the false or misleading conduct, and also made an order banning her from managing a corporation for three years.

However, the ACCC appealed from the trial judge’s decision to clarify whether special disadvantage was necessary to establish unconscionable conduct under the Australian Consumer Law.

The ACCC did not appeal the penalty amounts, and Quantum and Ms Howe elected not to participate in the appeal. A contradictor was also appointed to assist the court by arguing against the ACCC’s appeal.

ACCC chair Rod Sims called the ruling “an extremely important decision for all Australian consumers and businesses”.

“The Full Court has made clear that for conduct to be held to be ‘unconscionable’ under the Australian Consumer Law and other similar laws, it is not necessary to establish that the business engaging in the conduct has exploited some disadvantage or vulnerability on the part of the consumers or small businesses affected, although this may often be the case,” Mr Sims said.

“The Full Court has confirmed that the correct approach to assessing statutory unconscionability is to focus on the conduct, and assess whether it is a sufficient departure from the norms of acceptable commercial behaviour as to be against conscience or to offend conscience.

“Because this decision makes it clear that it is not necessary to demonstrate exploitation of vulnerability, it extends the reach of the statutory unconscionable conduct prohibition so that it will protect more consumers and small businesses against egregious conduct by corporations.”

The Australian Small Business and Family Enterprise Ombudsman, Bruce Billson, said the decision was great for small businesses seeking protection from unconscionable conduct that can harm enterprises and livelihoods.

“The decision ensures egregious commercial conduct can be captured by the unconscionable conduct provisions under the Australian Consumer Law without having to prove that the harmed small business or consumer has a special disadvantage or vulnerability that was exploited,” Mr Billson said.

“I welcome the Full Court confirmation that conduct may be found to be unconscionable as a result of deviations from the norms of acceptable commercial behaviour, even where there has not been a special disadvantage or vulnerability that was exploited.

“This should reassure smaller businesses that remedies are available for the harm caused by the unconscionable conduct of a counterparty and that fair and reasonable commercial dealings support Australian commerce, even where a larger, more powerful corporation is involved.”

Unconscionable conduct ruling a ‘landmark’ decision, says ACCC
mybusiness logo
Adrian Flores
Adrian Flores

Adrian Flores is the deputy editor of MyBusiness. Before that, he was the deputy editor for SMSF Adviser as well as features editor for ifa (Independent Financial Adviser), InvestorDaily, Risk Adviser, Fintech Business and Adviser Innovation.

You can email Adrian at [email protected].

Leave a Comment

Latest poll

How satisfied are you with the SME measures in the federal budget?