The Australian Competition and Consumer Commission has instituted proceedings in the Federal Court, Brisbane against Shopping Centre Manager, Westfield alleging misleading or deceptive conduct and/or unconscionable conduct in breach of the Trade Practices Act 1974 in relation to its dealings with one of its former tenants.
Certain related companies and representatives of Westfield have also been joined in the proceedings for allegedly aiding or abetting or being knowingly concerned in the breaches.
The ACCC alleges that Westfield contravened the misleading or deceptive conduct provisions of the Act through misrepresentations made to the former tenants regarding certain matters including:
- the development of the area adjacent to the tenants' site into an outdoor dining precinct and the construction, by a certain date, of a number of specified restaurants that would attract patronage to the area
- the consistent flow of customers past the site because of its location and the design of the food court
- that the plans discussed with the former tenants for the food court were final and not subject to revision.
The ACCC also alleges that Westfield acted unconscionably towards the former tenants pursuant to section 51AC of the Act by refusing to finalise a settlement with a small business tenant regarding the misleading and deceptive conduct unless:
- the former tenants withdrew their complaint to the ACCC and notified it that they were satisfied with the settlement
- an undertaking was received by Westfield from the ACCC that it would cease its investigations into the matter
- the former tenants would not commence, recommence or continue any claim, administrative or governmental investigation or challenge against the landlord and/or Westfield in respect of the misrepresentations, the lease, the previous litigation undertaken by the former tenants or any contract, arrangement or understanding between the former tenants and Westfield.
The ACCC is seeking court orders including:
- findings of fact
- declarations that the parties have breached the relevant provisions of the Act
- injunctions preventing the repetition of similar conduct in the future
- damages for the former tenants
- costs.
The Federal Court has ordered by consent, that the case be programmed towards a hearing. The matter will be heard before the Court on a date to be fixed.