The recent Full Federal Court decision in favour of the ACCC
in their unconscionable conduct appeal against Lux Distributors Ptd Ltd (Lux) is an important case in developing the law both in regard to unconscionable conduct by a business towards customers and/or other businesses, and the law of unconscionable conduct generally.
The judgement is the first Full Court judgment on the application of the ACL’s prohibition on unconscionable conduct relating to transactions involving “unsolicited consumer agreements” and, provides important guidance on the application of the prohibition against unconscionable conduct present in s 21(1) of the Australian Consumer Law (ACL) (and its predecessor, s 51AB(1) of the Trade Practices Act 1974 (Cth)).
Last week the Full Federal Court declared that Lux engaged in illegal unconscionable conduct when its sales representative conducted unsolicited in-home sales of vacuum cleaners to elderly, vulnerable customers in 2010 and 2011, overturning the trial decision of Justice Jessup. Please click here for more on the facts of the case: A win for vulnerable consumers in the Federal Court
The decision is of particular significance as the judicial approach
to the statutory concept of unconscionable conduct has been unsettled, with some taking the view that the common law concept of unconscionable conduct has been improperly influencing the court’s approach to statutory unconscionable conduct.
Key aspects of the decision include:
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