Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Esanda Finance Corporation Ltd (ACN 004 346 043) [2003] FCA 1225
TRADE PRACTICES – unconscionable conduct – undue harassment – seizure of motor vehicle subject to a chattel mortgage – where mortgagee's agents entered consumer's property without his consent to effect seizure of the motor vehicle – where mortgagee's agents had reasonable cause to apprehend a physical confrontation with the consumer – where the notice of demand for delivery up conveyed an understanding that seizure of the motor vehicle could not lawfully occur without a court order – consent orders – principles governing grant of consent orders. Trade Practices Act 1974 (Cth) ss 51AB, 60, 84(2) ACCC v McCaskey (2000) 183 ALR 159 applied AUSTRALIAN COMPETITION & CONSUMER COMMISSION v ESANDA FINANCE CORPORATION LTD (ACN 004 346 043) W111 OF 2001 LEE J 7 NOVEMBER 2003 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY W111 OF 2001
BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT
AND: ESANDA FINANCE CORPORATION LTD (ACN 004 346 043)
FIRST RESPONDENT
JUDGE: LEE J
DATE OF ORDER: 7 NOVEMBER 2003
WHERE MADE: PERTH
BY CONSENT THE COURT DECLARES THAT:
1 The first respondent engaged in conduct that was unconscionable in contravention of section 51AB of the Trade Practices Act 1974 (the 'TPA') in connection with the supply of goods and services by the first respondent to Mr McPhee, pursuant to the "McPhee Agreement" referred to in par 10 of the Statement of Claim filed in the proceeding, by reason of:
1.1 it causing to be served on Mr McPhee a notice of demand for delivery up of the "McPhee vehicle" in a form that conveyed, or was capable of conveying, the meaning to Mr McPhee that the first respondent would not, or could not lawfully, repossess the "McPhee vehicle" without a court order authorising such action and then, by its agents or sub-agents, repossessing that vehicle without having obtained any such order; and
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