Current example - ACCC v MSY Technology Pty Ltd, computer products PDF

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CURRENT CASES ACCC v MSY Technology Pty Ltd [2017] FCA 1251 (25 October 2017) In a case concerning the Australian Consumer Law, handed down late in 2017, Markovic J of the Federal Court of Australia made orders in relation to contraventions of the Australian Consumer Law by the MSY companies, and imposed certain remedies for those contraventions. The MSY companies sell a range of computer products including parts, accessories, and computer software. There were several different companies involved in this case – MSY Technology Pty Ltd, MSY Group Pty Ltd, and MSY Technology (NSW) Pty Ltd. The terms and conditions displayed by these companies contained certain provisions that were alleged to breach the Australian Consumer Law. The MSY companies admitted that they had contravened the Australian Consumer Law. The particular terms were:  that faulty computer products had to be returned within 7 days of receipt, in order for a consumer to be entitled to a remedy;  that there was only an entitlement to a replacement or refund on a case by case basis, and at the company’s discretion;  that there was only a return-to-base warranty on computer products sold by the companies, and that the remedy provided was at the company’s discretion;  that an administrative fee may be charged if faulty computer products were not under warranty; and  that there were no remedies available for faulty computer software. In addition, when customers dealt with employees, orally and by email:  they were told that consumers’ Australian Consumer Law remedies depended on the store being able to then get recovery from the manufacturer (thus there was no requirement to provide a remedy to consumers);  no response was given when consumers specifically raised their Australian Consumer Law rights (suggesting that there was no requirement to provide a remedy);  they were told that the consumer guarantees only applied for an unreasonably short period; and  they were told that faulty goods had to be returned to the store in their original packaging. As a result of making these representations, and engaging in this conduct, the MSY companies contravened the Australian Consumer Law s 18 (misleading or deceptive conduct), s 29(1)(m) (false or misleading representations about consumer rights), and s 29(1)(n) (false or misleading representations about a requirement to pay for a right that already exists under the Australian Consumer Law). The case is a good example of how companies can breach the general prohibition in s 18, and the specific prohibitions in s 29, at the same time. A range of remedies were ordered for these contraventions (demonstrating that more than one remedy can be imposed for breaches of the Australian Consumer Law):  the companies were ordered to not, for a period of five years, publish written statements on their websites representing that consumers do not have the rights granted by the Australian Consumer Law;  the companies and employees were ordered, for a period of five years, not to represent to consumers that they do not have the rights granted by the Australian Consumer Law;  pecuniary penalties of $200,000, $50,000, and $500,000 were ordered against the different companies;  a colour copy of a notice of the outcome of the case was required to be displayed on the MSY website for 90 days, and this notice was required to comply with specific formatting and display requirements;  a ‘Your ACL Rights’ webpage was required to be posted by the companies, with a hyperlink prominently displayed on the homepage;  the ‘Your ACL Rights’ material had to be hyperlinked in the terms and conditions, and also had to be made available in-store;  a phone number had to be advertised on the MSY website, in a prominent position, for customers to raise Australian Consumer Law complaints;  a compliance and training program was required to be set up, and undertaken by employees, at the companies’ expense; and  the companies were required to pay the ACCC’s court costs, of $50,000....