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Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

In April 2019, The Australian Competition and Consumer Commission (ACCC) instituted legal proceedings in the Federal Court against iSelect Ltd (iSelect) for misleading and deceptive conduct.

The ACCC alleges that iSelect prioritised companies on their ‘Preferred Partner Program’ over other companies on their website. iSelect would display to consumers more energy plans from these companies on their ‘Preferred Partner Program’ who were paying a higher commission to iSelect.

In doing so, iSelect was providing less representation of companies which were not part of this program and which may have had more affordable energy plans available to consumers. In doing so, it is alleged that iSelect misled consumers by failing to provide the ‘impartial and objective’ comparison of energy plans that consumers believed they were receiving.

The proceedings commenced by the ACCC sought to address this allegedly misleading conduct by seeking orders requiring iSelect to cease the relevant conduct and pay pecuniary penalties for their failure to comply with the Australian Consumer Law (ACL). Given the potential ramifications of misleading and deceptive conduct, it is important that consumers and business owners alike are able to identify prospective misleading conduct before problems such as this arise.

What is Misleading and Deceptive Conduct?

Under section 18 of the ACL, persons involved in trade or commerce are prohibited from engaging in conduct that is misleading or deceptive. This includes a prohibition of conduct that is likely to mislead or deceive. Importantly, there is no requirement that the misleading conduct be intentional, or that anyone suffer any loss or damage as a result of the conduct.

Claims of misleading and deceptive conduct can be made by the ACCC or by anyone to whom the misleading conduct was directed – though in the latter case, this would be unlikely to occur unless some loss or damage had been suffered.

What can be classified as misleading and deceptive conduct?

Misleading conduct is not limited to written statements made in advertising material. It extends to oral and visual representations that are misleading, and also extends to representations made by silence.

For example, if a retailer stated that a customer could return a couch within a month and the customer, upon attempting to do so, is informed that this is only applicable where there is a manufacturing fault with the couch, then the retailer has engaged in misleading conduct.

Similarly, if the consumer had advised that they intended to return the couch if it did not suit their house and the retailer remained silent as to the terms regarding returning the couch, then the retailer has engaged in misleading conduct.

A further essential element of misleading and deceptive conduct under the ACL is that it must occur in trade or commerce. Private representations made outside of trade or commerce do not fall within this conduct.

How to avoid misleading conduct

Given the wide range of conduct that is capable of falling within the purview of this section of the ACL, it is difficult to provide hard and fast rules for avoiding misleading conduct.

An essential element to keep in mind is the audience. Whether or not conduct is misleading depends on the person or persons to whom it is directed. A different standard is likely to be applied for representations made to a specific person than those made to a much wider audience.

As such, it is important to always keep in mind the impression that your conduct may give to your audience. As a preventative measure, offering context to all parties involved at the time of making any representation can be helpful as it ensures that all people involved are under the same understanding. This may be done by ensuring that the consumer is advised of all relevant terms and conditions, or simply by ensuring the wording or impression given by your conduct conveys the appropriate message. Where you are concerned that a misleading representation may have been made, it is best to clarify this with your audience, if this is at all possible.

Making representations

It is also important to be careful when making representations regarding the quality of work or products. While some exaggerations may be simple puffery, the use of specific terms that provides a certain impression to consumers should be carefully used.

For example, in 2013, the ACCC took action regarding both written and visual statements made by a duck meat producer that described their products as open range, even though the ducks were raised solely in an indoor shed. The Federal Court found that these statements were misleading and ordered that the producer pay $375,000.00 for penalties and costs. Similarly, terms such as ‘top-quality’ or relevant industry-specific terms should be used carefully and in accordance with commonly understood definitions.

How can Sharrock Pitman Legal assist?

If you require advice on misleading and deceptive conduct, please feel free to contact Simon Matters on (03) 8561 3324. As Accredited Commercial Litigation Specialists, we are able to provide you with advice regarding your options, whether it be as a consumer or a business owner.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Rhiannon Carpenter

For further information contact

Simon Matters

Simon is a Senior Associate of Sharrock Pitman Legal.

He is an Accredited Commercial Litigation Specialist (accredited by the Law Institute of Victoria) and deals with Litigation, Mediation of Disputes, and Law for Charities & Not for Profits. For further information, contact Simon Matters on his direct line (03) 8561 3324.

More on

Litigation [Courts & Tribunals]

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers'. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.