Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (No 3) [2021] FCA 347

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (No 3) [2021] FCA 347 File number: WAD 215 of 2019

Judgment of: JACKSON J

Date of judgment: 15 April 2021

Catchwords: CONSUMER LAW - application for remedies under the Australian Consumer Law - respondent company in business of hiring out four wheel drive vehicles - knowing involvement of second and third respondents CONSUMER LAW - misleading or deceptive conduct - false or misleading representations - website and certain emails represented that vehicles were fully insured - vehicles not fully insured - contract term giving discretion to first respondent not to make claim against insurer even if vehicle insured and instead claim damage from hirer - finding that respondents had engaged in misleading or deceptive conduct CONSUMER LAW - unfair contract terms - contract term permitted first respondent to track hire vehicles by global positioning system (GPS) - GPS data used to create reports alleging that hirers had engaged in driving behaviour which caused 'excessive wear and tear' - contract term allowing first respondent to deduct $500 from hirers' bonds per incident - contract term giving discretion to first respondent not to make claim against insurer even if vehicle insured and instead claim damage from hirer - contract term providing that hirers must not denigrate first respondent in any way after hire period had expired - terms found to be unfair CONSUMER LAW - unconscionable conduct - bonds retained after hire - aggressive emails advising customers of bond retention - emails threatened customers with litigation, referral to authorities on basis of GPS data - emails intended to intimidate customers into not challenging the retention of the bonds - conduct found to be unconscionable CONSUMER LAW - remedies - declarations including that contract terms are unfair - penalties - unknowable number of contraventions - course of conduct - non-party consumer redress orders