Australian Competition and Consumer Commission v Excite Mobile Pty Ltd [2013] FCA 350

Australian Competition and Consumer Commission v Excite Mobile Pty Ltd [2013] FCA 350

Excite Mobile's sales method and debt collection practices were found to be unconscionable, misleading and deceptive. The sales method failed to adequately disclose the onerous day cap and contract terms, exposing everyday users to excessive charges, thereby attracting a strong adverse moral judgment. Misrepresentations regarding coverage and complaints handling were also misleading. The use of fictitious debt collector Jerry Hastings and false threats constituted misleading representations and undue coercion. Individual respondents Brown and Samuel, as directors, were knowingly concerned in these contraventions. Ms Smart was involved in misleading representations concerning debt...

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: Excite Mobile Pty Ltd (ACN 128 229 498); Second Respondent: Obie Brown; Third Respondent: David Samuel; Fourth Respondent: Fiona Smart
Jurisdiction
Australia
Judgment Date
18 April 2013
Procedural Posture
Civil / Liability Judgment; Adjourned for Further Directions on Remedy/orders
Outcome
Liability found for ACCC against Excite Mobile, Brown, Samuel and Smart for various contraventions; adjourned for further hearing on orders.
Legal Topics
Unconscionable Conduct, Misleading or Deceptive Conduct, False or Misleading Representations, Debt Recovery, Undue Coercion
Consumer Law Unconscionable Conduct Misleading or Deceptive Conduct False or Misleading Representations Debt Recovery Undue Coercion

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Parties

Australian Competition and Consumer Commission

Applicant

Excite Mobile Pty Ltd (ACN 128 229 498)

First Respondent

Obie Brown

Second Respondent

David Samuel

Third Respondent

Fiona Smart

Fourth Respondent

Procedural Posture

Civil / Liability Judgment; Adjourned for Further Directions on Remedy/orders

Legal Issues

  1. 1 Whether the sales method employed by Excite Mobile was unconscionable under s 51AB TPA
  2. 2 Whether Excite Mobile made misleading or deceptive representations regarding mobile phone coverage and complaints handling
  3. 3 Whether Excite Mobile's debt collection practices involved false representations and undue coercion

Ratio Decidendi

Excite Mobile's sales method and debt collection practices were found to be unconscionable, misleading and deceptive. The sales method failed to adequately disclose the onerous day cap and contract terms, exposing everyday users to excessive charges, thereby attracting a strong adverse moral judgment. Misrepresentations regarding coverage and complaints handling were also misleading. The use of fictitious debt collector Jerry Hastings and false threats constituted misleading representations and undue coercion. Individual respondents Brown and Samuel, as directors, were knowingly concerned in these contraventions. Ms Smart was involved in misleading representations concerning debt...

Court Disposition

Liability found for ACCC against Excite Mobile, Brown, Samuel and Smart for various contraventions; adjourned for further hearing on orders.

Orders

  • Matter listed for further directions on a date to be fixed.
  • Parties at liberty within 21 days to file and serve written submissions and proposed directions for further hearing.