Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Turner v MyBudget Pty Limited [2018] FCA 1407 File number: NSD 297 of 2017
Judge: LEE J
Date of judgment: 18 September 2018
Catchwords: CONTRACT – proper construction of interest provision in consumer contract – whether it authorises respondent to take and use interest earned on client funds for its own purposes – whether breach of trust or breach of fiduciary duty – held contract authorises respondent's actions and no breach CONSUMER LAW – Australian Consumer Law s 24(1) – meaning of an unfair term – relevant considerations – whether a term is unfair if it authorised respondent to take and use interest earned on client funds for its own purposes – discussion of matters relevant to establish an unfair term including meaning of a "significant imbalance in the parties' rights and obligations arising under the contract" – held no unfair term REPRESENTATIVE PROCEEDING – orders made under s 33ZB of Federal Court of Australia Act 1976 (Cth) binding group members who have not opted out
Legislation: Australian Consumer Law ss 21, 23 Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33ZB, 43(1A)
Cases cited: Australian Competition and Consumer Commission v Chrisco Hampers Australia Limited [2015] FCA 1204; (2015) 239 FCR 33 Australian Competition and Consumer Commission v CLA Trading Pty Ltd [2016] FCA 377; (2016) ATPR 42-517 Beaufort Developments (NI) Ltd v Gilbert-Ash NI Ltd [1998] UKHL 19; [1999] 1 AC 266 Cherry v Steele-Park [2017] NSWCA 295; (2017) 351 ALR 521 Cook v Addison (1869) LR 7 Eq 466 Director General of Fair Trading v First National Bank plc [2001] UKHL 52; [2002] 1 AC 481 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 91 ALJR 486 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Foskett v McKeown [2001] 1 AC 102 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Jetstar Airways Pty Ltd v Free [2008] VSC 539; (2008) 30 VAR 295 Southern Cross Commodities Pty Ltd (In Liq) v Ewing (1987) 11 ACLR 818; 5 ACLC 1, Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 O'Sullivan v Management Agency and Music Ltd [1985] Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522
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