Australian Competition and Consumer Commission v Chrisco Hampers Australia Limited (No 3) [2016] FCA 206

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Chrisco Hampers Australia Limited (No 3) [2016] FCA 206 File number: QUD 683 of 2014

Judge: EDELMAN J

Date of judgment: 4 March 2016

Catchwords: CONSUMER LAW – consequential issues concerning remedies for contraventions of Australian Consumer Law – appropriate declarations – appropriate order as to costs

Legislation: Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) ss 23(1), 29(1)(m), 97(1)

Cases cited: ACCC v Global One Mobile Entertainment Limited [2011] FCA 393 ACCC v Kingsland Meatworks & Cellars Pty Ltd [2013] FCA 48 Australian Competition and Consumer Commission v Chrisco Hampers Australia Limited (No 2) [2016] FCA 144

Date of hearing: 4 March 2016

Registry: Queensland

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: Catchwords

Number of paragraphs: 14

Counsel for the Applicant: Ms M Brennan QC

Solicitor for the Applicant: Norton Rose Fulbright Australia

Counsel for the Respondent: Mr T Bradley QC with Mr M Hodge

Solicitor for the Respondent: Herbert Smith Freehills

ORDERS QUD 683 of 2014

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant

AND: CHRISCO HAMPERS AUSTRALIA LIMITED ACN 080 852 535 Respondent

JUDGE: EDELMAN J DATE OF ORDER: 4 MARCH 2016

THE COURT DECLARES THAT:

1. The respondent (Chrisco), during the period from 1 January 2011 to December 2013 in trade or commerce and in connection with the supply or possible supply of goods, by making a statement in its order confirmations and on its website to the effect that consumers could not terminate their lay-by agreements after the final payment was made but before delivery of the goods, made a false or misleading representation concerning the existence, exclusion or effect of a condition, warranty, right or remedy in contravention of section 29(1)(m) of the Australian Consumer Law (the ACL) (Schedule 2 of the Competition and Consumer Act 2010) because at all material times section 97(1) of the ACL provided that a consumer who is a party to a lay by agreement can terminate the agreement at any time prior to delivery of the goods. 2. Where there is a term providing for a HeadStart Plan in a consumer contract entered into by Chrisco for the delivery of a Christmas Hamper in 2014 which provided: (a) as stated in Chrisco's website terms and conditions, for the 2014 year, that: "HeadStart Plan Your direct debit payments will continue until your order is fully paid for (no later than 24th October 2014). After the 24th October 2014, a HeadStart Plan will be created for you and direct debit payments will continue accordingly. A HeadStart Plan allows you to make payments towards next year's order, while giving you time to decide exactly which products you want. We will write to you to confirm your HeadStart Plan payments prior to commencing your direct debits. Your HeadStart Plan is fully refundable at no cost to you, should you change your mind…"; or (b) as stated in the 2014 Chrisco Catalogue Terms and Conditions, that: "How does a HeadStart Plan work? Your Direct Debit payments will continue until your order is fully paid (no later than 24th October 2014). After the 24th October 2014, a HeadStart Plan will be created for you and payments will continue accordingly. A HeadStart Plan will be created for you and payments towards next year's order, while giving you time to decide exactly what products you want We will write to you to confirm your HeadStart Plan payments prior to commencing Direct Debits."; and (c) as stated in the 2014 Catalogue Order Form and 2014 Online Order Form, that: "When your 2014 (…) Order is fully paid you will automatically roll into a 2015 HeadStart Plan for the following year. Your HeadStart Plan is fully refundable. You can choose not to have this option by ticking here"; and (d) as stated in the 2014 Order Confirmation, that: "Unless you've advised us otherwise, we'll keep your payments going for any fully paid Hamper 2014 order, so that you can keep saving for next years order. Please see above for your final payment date"; it is an unfair term within the meaning of section 24 and section 250 of the ACL because it: (e) caused a significant imbalance in the parties' rights and obligations arising under the contract, in a context in which the terms were not presented clearly, and in sufficiently plain language, to the consumer; (f) was not reasonably necessary in order to protect the interests of Chrisco; and (g) would cause financial detriment to the consumer if it were to be applied or relied upon by Chrisco. and is void pursuant to section 23(1) of the ACL.