Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (No 3) [2021] FCA 347

Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (No 3) [2021] FCA 347

Smart Corporation Pty Ltd, by publishing statements on its website and sending emails to potential customers, made misleading and deceptive representations regarding the insurance status of its vehicles, in breach of s 18 and s 29(1)(g) of the ACL. Clauses in its standard form contracts relating to GPS tracking, the company’s discretion not to submit insurance claims and instead recover damages from hirers, and requirements not to denigrate the company were unfair contract terms under ss 23 and 24 of the ACL. The company's conduct in sending aggressive, intimidating emails to customers, making excessive deductions from security bonds, and threatening and misleading customers as to legal...

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: Smart Corporation Pty Ltd (ACN 134 192 297); Second Respondent: Vitali Roesch; Third Respondent: Maryna Kosukhina
Jurisdiction
Australia
Judgment Date
15 April 2021
Procedural Posture
Application for Remedies Under the Australian Consumer Law / Judgment and Final Orders
Outcome
Declarations made; certain contract terms declared void; non-party redress orders; disqualification of second and third respondents; pecuniary penalties ordered; costs ordered against second and third respondents.
Legal Topics
Misleading or Deceptive Conduct, False or Misleading Representations, Unfair Contract Terms, Unconscionable Conduct, Remedies Under Australian Consumer Law, Disqualification of Directors, Pecuniary Penalties
Consumer Law Commercial Law Corporations Law Misleading or Deceptive Conduct False or Misleading Representations Unfair Contract Terms Unconscionable Conduct Remedies Under Australian Consumer Law +2 more

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Parties

Australian Competition and Consumer Commission

Applicant

Smart Corporation Pty Ltd (ACN 134 192 297)

First Respondent

Vitali Roesch

Second Respondent

Maryna Kosukhina

Third Respondent

Procedural Posture

Application for Remedies Under the Australian Consumer Law / Judgment and Final Orders

Legal Issues

  1. 1 Whether the respondents engaged in misleading or deceptive conduct under s 18 of the Australian Consumer Law
  2. 2 Whether the respondents made false or misleading representations about insurance under s 29(1)(g) of the ACL
  3. 3 Whether certain standard form contract terms were unfair under ss 23 and 24 of the ACL

Ratio Decidendi

Smart Corporation Pty Ltd, by publishing statements on its website and sending emails to potential customers, made misleading and deceptive representations regarding the insurance status of its vehicles, in breach of s 18 and s 29(1)(g) of the ACL. Clauses in its standard form contracts relating to GPS tracking, the company’s discretion not to submit insurance claims and instead recover damages from hirers, and requirements not to denigrate the company were unfair contract terms under ss 23 and 24 of the ACL. The company's conduct in sending aggressive, intimidating emails to customers, making excessive deductions from security bonds, and threatening and misleading customers as to legal...

Court Disposition

Declarations made; certain contract terms declared void; non-party redress orders; disqualification of second and third respondents; pecuniary penalties ordered; costs ordered against second and third respondents.

Orders

  • Declarations that the first respondent breached s 18 and s 29(1)(g) of the ACL, and engaged in unconscionable conduct in breach of s 21.
  • Declarations that certain contract terms were unfair and void under ss 23, 24, and 250 of the ACL.