Set Sale Realty Pty Ltd and its director Mr David Pilling engaged in false and misleading representations about having “ACCC approval”, the Federal Court, Adelaide, has found.
The Adelaide-based company promotes a real estate property selling system under the trading name Pilling Systems in connection with the trade marks "Set Sale", "Buyer Inquiry Range" and "Buyer Ranged" and has licensing agreements with real estate agents in South Australia, Victoria, New South Wales, the Australian Capital Territory and Tasmania to use the system.
In January 2004, Set Sale Realty sent to various real estate agents an e-mail with the subject heading, "ACCC APPROVES PILLING SYSTEM", and attached an unsigned extract from an Australian Competition and Consumer Commission letter to Mr Pilling. It suggested that the unsigned extract be used by real estate agents in the information kits they provide to prospective vendors. It also attached a signed letter from the ACCC for the same purpose.
The ACCC alleged that the representations were false and misleading in breach of sections 52 and 53(c) of the Trade Practices Act1974 because the Pilling System did not have ACCC approval as claimed.
"The ACCC's role is to enforce the Trade Practices Act, not approve particular business practices", ACCC Chairman, Mr Graeme Samuel, said today. "The court has found that Set Sale Realty and Mr Pilling had represented to its agents that the ACCC had approved their marketing system when it had not.
"They did this by providing their agents with a misleading extract from a letter sent to them by the ACCC. This letter did not approve the system and in fact specifically raised concerns with Set Sale Realty and Mr Pilling that the system risked misleading consumers".
With the consent of the parties, the Federal Court made the following declarations and orders:
- declared that Set Sale Realty had:
- engaged in misleading and deceptive conduct or conduct that was likely to mislead or deceive in contravention of section 52 of the Act
- represented that the system had approval that it did not have in contravention of section 53(c) of the Act
- granted a three year injunction restraining Set Sale Realty and David Pilling from representing that the system has ACCC approval or any similar representation
- ordered that Set Sale Realty write to each of its real estate agents to inform them of the Federal Court decision
- ordered that Set Sale Realty place a corrective advertisement in the mid-week and weekend real estate sections of the Adelaide Advertiser and Melbourne Age newspapers, and on Set Sale Realty's internet site for a period of three months
- pay the ACCC's costs of $6,000.
The court also found that Mr David Pilling, a director of Set Sale Realty, aided and abetted and was knowingly concerned in the conduct and ordered him to attend a trade practices compliance seminar.