Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40

Federal Court of Australia

Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40 Appeal from: Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (No 2) [2020] FCA 802

File number: WAD 157 of 2020

Judgment of: ALLSOP CJ, BESANKO AND MCKERRACHER JJ

Date of judgment: 19 March 2021

Catchwords: CONSUMER LAW – where company admitted to unconscionable conduct by a system or pattern of behaviour in contravention of s 21 Australian Consumer Law (ACL) – where penalties and declarations agreed with regulator – where primary judge found the majority in Australian Securities and Investments Commission v Kobelt [2019] HCA 18 considered s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) requires exploitation of some disadvantage or vulnerability by a stronger party and therefore s 21 of the ACL also requires those features to be present in the conduct – primary judge not satisfied investors, to whom the company's conduct was directed, could be characterised as vulnerable or exploited – primary judge found no contravention of s 21 – whether judge found exploitation of a special disadvantage in the equitable sense is required under s 21 – whether Kobelt, precedent or statutory interpretation requires that exploitation or taking advantage of some pre-existing vulnerability, disadvantage, or disability is a necessary element of statutory unconscionability under s 21 ACL – appeal allowed.

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) ss 12CA, 12CB, 12CC Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 20, 21, 22 Trade Practices Act 1974 (Cth) ss 51AA, 51AB, 51AC, 52A