Commissioner for Fair Trading v Digital Marketing and Solutions Pty Ltd (ACN 614 430 983) trading as Android Enjoyed and Camerasky & Anor [2019] NSWSC 370

Commissioner for Fair Trading v Digital Marketing and Solutions Pty Ltd (ACN 614 430 983) trading as Android Enjoyed and Camerasky & Anor [2019] NSWSC 370

The first defendant repeatedly engaged in misleading, deceptive, and false advertising conduct in contravention of ss 18, 29(1)(a), 33, 36(3) and 36(4) of the ACL, and supplied electrical articles in breach of s 16 of the ECS Act. The second defendant was knowingly involved as director. Given the seriousness, systemic and deliberate nature of the conduct, significant pecuniary penalties and a two-year disqualification order against the second defendant were justified.

Jurisdiction
Australia
Judgment Date
04 April 2019
Procedural Posture
Principal Judgment / Final Orders With Judgment
Outcome
Declarations made; injunctions and pecuniary penalties imposed; director disqualified; order for compensation refused; costs awarded to plaintiff.
Legal Topics
['misleading and Deceptive Conduct' 'false or Misleading Representations' 'wrongly Accepting Payment' 'electrical Product Safety' 'pecuniary Penalties' 'disqualification of Directors']
['consumer Law' 'trade and Commerce' 'corporate Law'] ['misleading and Deceptive Conduct' 'false or Misleading Representations' 'wrongly Accepting Payment' 'electrical Product Safety' 'pecuniary Penalties' 'disqualification of Directors']

Case Brief

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Procedural Posture

Principal Judgment / Final Orders With Judgment

Legal Issues

  1. 1 ['Whether the defendants breached ss 18, 29(1)(a), 33, 36(3) and 36(4) of the Australian Consumer Law' 'Whether the defendants breached s 16 of the Electricity (Consumer Safety) Act 2004 (NSW)' 'Quantum of pecuniary penalty to be imposed' 'Appropriateness of disqualification from managing corporations']

Ratio Decidendi

The first defendant repeatedly engaged in misleading, deceptive, and false advertising conduct in contravention of ss 18, 29(1)(a), 33, 36(3) and 36(4) of the ACL, and supplied electrical articles in breach of s 16 of the ECS Act. The second defendant was knowingly involved as director. Given the seriousness, systemic and deliberate nature of the conduct, significant pecuniary penalties and a two-year disqualification order against the second defendant were justified.

Court Disposition

Declarations made; injunctions and pecuniary penalties imposed; director disqualified; order for compensation refused; costs awarded to plaintiff.

Orders

  • ['Leave granted to proceed against second defendant under r 11.8AA UCPR.' 'Defendants restrained from further misleading representations, sale of non-compliant or unsafe goods, and false advertising as detailed in orders under ss 232(1)(c) and (e) of the ACL.' 'First defendant ordered to pay pecuniary penalty of...