Misleading and Deceptive Conduct – What Happened to Get Qualified Australia

Get Qualified Australia (GQA)  is a defendant in legal proceedings brought by the ACCC. The ACCC allege GQA engaged in misleading and deceptive conduct, unfair contract terms and unconscionable conduct. They also alleged GQA made false or misleading representations to its customers.

Some BackgroundScreen shot of dictionary - misleading and deceptive conduct

  • GQA was a company that matched its customers with Registered Training Organisations. This helped them to get formal qualifications. They were then able
    to apply for jobs holding recognised certificates and qualifications.
  • GQA offered money back guarantees to its customers.
  • GQA is now in liquidation.

Legal Actions

The ACCC used the Australian Consumer Law to take legal action against GQA.

The ACCC alleged that GQA had:

  • engaged in misleading and deceptive conduct in contravention of s18
  • engaged in unconscionable conduct in contravention of s21 and
  • its agreements contained unfair contract terms within the meaning of ss23 and 24.

Freezing Order

Section 137F allows for a freezing order. This means that a company cannot chase customers for outstanding payments.

The court stated that s137F:

 “is not available for the purpose of preserving assets to meet pecuniary penalties”.

The section is available to:

 “preserve assets to meet orders for compensation”.

The freezing order isn’t to make sure a company has the funds to pay a fine. The order ensures the company pays compensation to those who have suffered damages.
If a court grants a s137F order then usually the Applicant (person seeking the order)  has to undertake to pay damages. If the respondent defends the Applicants allegations and due to the freezing order sustained damages the Applicant has to pay the damages for the losses incurred.

The court granted the ACCC a freezing order pending the final outcome of its legal action. The ACCC didn’t have to give the usual undertaking in this case. The ACCC didn’t have to give the undertaking. The Court believed the ACCC was acting in the public interest.

The orders prevented GQA “commencing or progressing debt collection activities”. The orders also froze several of GQA’s bank accounts

ACCC Alleged

According to the ACCC, GQA engaged in misleading and unconscionable conduct by:

  • not honouring its “100% money back guarantee”;
  • assuring customers they were eligible for qualifications when they weren’t;
  • GQA used unfair sales tactics;
  • GQA insisted on up-front payments and providing important terms and conditions after payment;

  “The ACCC alleges that Get Qualified targeted vulnerable consumers with conduct that was clearly unfair and unreasonable, including providing them with false or misleading information about eligibility and refusing refunds,” ACCC Chairman Rod Sims said.

The Results of Alleged Misleading and Deceptive Conduct

GQA is now in liquidation

 “As a result of the freezing orders and the ACCC’s and ASQA’s actions, GQA has been starved of funds, placing [it] in a difficult financial position:” Get Qualified CEO Adam Wadi.

The ACCC proceeds with the prosecution even though the company is in liquidation.

The ACCC will no doubt win the prosecution as there is no defence. The Court will grant the pecuniary fines asked for by the ACCC. Another precedent will be set.

How would your business cope if it were in this situation? You may not intend to engage in misleading and unconscionable conduct. But the law does not take into account your intentions.

Misleading and deceptive conduct can occur in any business communication:

  • advertising – online and offline
  • brochures
  • telephone conversations
  • business proposals
  • contracts
  • terms and conditions
  • emails…….etc.

Avoid engaging in misleading and deceptive conduct.

Contact our expert Steven Brown on 1300 882 032 or email

To learn more about misleading and deceptive conduct watch the video below.

Misleading and Deceptive Conduct video

Steven Brown presenting to Parramatta Chamber of Commerce eNRGy 3 Networking Group on Misleading and Deceptive Conduct.

BLAB Small Business Talk Australia Websites

BLAB featuring Steven Brown


Don’t miss Etienne Lawyers’ next BLAB  Small Business Talk Australia  Websites at 4pm AEDT Sunday 8 November 2015. This week we will be discussing all things website related.

In case, like we were a couple of weeks ago – completley oblivious to BLAB, it is an app in which up to four people  have a video conversation whilst others watch and are able to interact by making comments or asking questions. We have jumped feet first into this new app and are loving it. Don’t be shy come and join us.

Now down to the matter of what will we be discussing in BLAB Small Business Talk Australia Websites?

Websites – Any thing and everything including:

  • Does every business need a website?
  • How is the best way to get a website?
  • What should a website cost me and how should I expect to pay for it?
  • SEO – what is it and why do I need it?
  • Marketing – a very big topic, having a website is great but unless people know you have one it is just a waste of money.
  • Breach of Copyright
  • Defamation – Your website makes you a publisher.
  • Are you responsible for the content users leave on your website?
  • Terms and Conditions of Use of Your Website
  • Website Privacy
  • Contracts
  • Trade Mark Infringement
  • Misleading and Deceptive Conduct

The points above are a general guide to our conversation but feel free to jump in and ask questions. We will BLAB for about an hour and it will be recorded. If you miss the live the stream it will be available at the same link. If you have questions that weren’t answered in BLAB Small Business Talk Australia Websites please contact our BLABbers offline for further information.

This weeks BLAB features James Cooke – Cooke Consulting @CookeConsulting, Julie Sanderson – Jacaranda Grove Consulting @jacarandagrove, Steven Brown – Etienne Lawyers @SteveBrown_  and Suzanne Brown – Etienne Lawyers @tbearetienne. Don’t forget to follow our BLABbers on Twitter.

BLAB Small Business Talk Australia Websites – Join the BLAB Here

BLAB All About Websites



Etienne Lawyers FREE download – Is Your Website Legal? – 12 Ways to Use Photos Legally on your Website will help you to understand how to use photos on your website without fear of prosecution.

Images and graphics are powerful tools in your business. They will convert more customers than text alone. But if you are using those images illegally you could end up paying significant amounts of money, far more than you can imagine.


Is Your Website Legal? BLAB Small Business Talk Australia Websites

Get Your Free Download Now!






Buying Off The Plan – Filming for ICLE


Buying Off The Plan - Filming for ICLE

Buying Off The Plan

Etienne Lawyers was again asked to film a presentation for ICLE. Steven Brown’s presentation was focused on purchasers buying off the plan and developers selling off the plan. Steven has many years experience acting for both developers selling off the plan and purchasers buying off the plan. He understands the benefits and pitfalls from both the purchaser and developers point of view. Steven’s extensive experience in this area made him the logical choice for ICLE in presenting this area of law as training for other lawyers.

This is a very topical subject at the moment. With the Sydney skyline having more cranes than any other in the world except Dubai. Most of the buildings are new apartments. With interest rates low and overseas buyers being restricted to mostly new properties – new apartments are very popular. Also peaking interest in NSW is the First Home Owner Grant and First Home – New Home scheme offered by the State Government. New apartments can be cheaper than houses and land making them easier to satisfy the rules of the government schemes.

With property prices rising sometimes 10% a year developers can sell a property off the plan and not complete the building for 5 years. In that 5 years the selling price may have increased by $100,000.00 making it advantageous for the developer to decide not to sell to the original purchaser and put the property back on the market and sell for a higher price.

Buying off the plan has advantages for the purchaser but also disadvantages. There have been many examples recently in the media of developers withdrawing properties from sale, changing the size of lots, changing the fixtures and fittings, even reducing the number of bedrooms. All of this was discussed in Steven’s presentation.

There are proposed updates to laws being proposed by several State Governments.

To find out more about Buying Off the Plan, download our free reference here.

Linkedin for Lead Generation

James Cooke from Linkedin Success gave a fabulous presentation on using Linkedin as a Lead Generation Tool for Lawyers. James is passionate about using Linkedin as a lead generation tool and he conveys this passion in his presentations. His presentation was not only educational but practical and fun. James’ vast experience using Linkedin to generate leads for his Debt Collection business has enabled him to develop a proven formula that he now shares both online and in live presentations.

If you would like to learn about using Linkedin as a Lead Generation Tool for your business, why not try James’ free Udemy course

As always Alice from ICLE and Tristan from BAM Studios made the day of filming fun and productive.

Off The Plan Property Call To Action

Is Your Website Legal?

Steven Brown

Steven Brown of Etienne Lawyers is presenting a FREE seminar on Who is Responsible for the Content on Your Website at the BREED Business Centre Wednesday 21 October, 2015.

  • What is Defamation?;
  • What is Misleading and Deceptive Conduct?;
  • What is Trademark Infringement?; 
  • What is Breach of Copyright?

Click Here to Register


You will gain concise, practical knowledge and useful tips from Steven as he has advised businesses from micros to multi-nationals on the legalities of website content over his many years giving business advice and is a Registered Business Specialist with the Law Society of NSW.  With his extensive experience lecturing at the Institute of Company Directors, UTS, Finsia and Macquarie University this seminar is bound to be as enjoyable as it is educational. Steven’s seminar will be peppered with real life examples of how other businesses protect their websites and don’t get caught out with illegal content on their website due to others. This will allow you to learn from other peoples mistakes and successes.

If you have a website, social media accounts or are thinking about getting a website this is the ideal opportunity to come along and learn from Steven about the importance of protecting your website. He will be available to answer questions you may have about what is on your website.


As part of the evening, Breed provides a warm and inviting atmosphere to facilitate networking amongst the attendees before and after the seminar. Meeting new people at events like this is a great way to grow your business. Either by connecting with new potential customers, finding new suppliers or just connecting with people who know people you might want to know.

Don’t miss out on this FREE event to increase your business skills, learn from an expert and make new business connections.

Use this seminar to find out if your website content is legal and how to protect your website to ensure your business grows.

Who is responsible for the content on your website


Etienne Lawyers FREE download Is Your Website Legal – 12 Ways to Use Photos Legally on your Website will help you to understand how to use photos on your website without fear of prosecution.

Images and graphics are powerful tools in your business. They will convert more customers than text alone. But if you are using those images illegally you could end up paying significant amounts of money, far more than you can imagine.


Is Your Website Legal?

Get Your Free Download Now!


What’s in a Name – Hog’s Breath Cafe – trademarks, logos, names and branding

Trademarks, Logos, Names & Marketing a Brand

Highlighting corporate trademarks, logos, names and marketing branding, the recent dispute between a NSW Central Coast takeaway café and the national franchise Hog’s Breath Café chain has again shone a light.

Importance of a trademark

Source: Daily Telegraph New Limited http://www.dailytelegraph.com.au/newslocal/inner-west/hoggys-takeaway-in-gosford-hopes-facebook-campaign-will-end-naming-rights-dispute-with-hogs-breath-cafe/story-fngr8h4f-1226888133765

Sam and Sarah Hogg opened a takeaway around February 2014, in Gosford. Having the name Hogg they not surprisingly came up with the name “HOGGY’s” with a caricature of pig’s head.

Seven weeks after opening, in April 2014, Sam and Sarah received a cease and desist demand from Hog’s Breath Café demanding they stop using the name on the grounds it infringed the trademark of Hog’s Breath Café and was misleading and deceptive.

The news from the Daily Telegraph newspaper and radio 2GB report that Sam and Sarah have agreed to change the name as the cost of attempting to resist the challenge is far too expensive for them to take on.

The Courts View

The situation is not novel. It has arisen at least twice in the recent past. The costs of meeting the challenge in those instances was either not beyond the parties or was to them, worth the expense.

The two decided cases were Taco Bell Pty Ltd & Anor v Taco Co of Australia Inc & Ors [1982] FCA 170 (23 August 1982) (Franki J.Deane J.Fitzgerald J.) and Anakin Pty Ltd v Chatswood BBQ King Pty Ltd [2008] FCA 1467 (30 September 2008) (BRANSON J)

The facts of each case are as follows:

Taco Bell

An Australian business had traded in Sydney since the 1970s, in two locations under the name of Taco Bell Casa (Taco Co of Australia), selling Mexican style food.

Taco Bell Pty Ltd and Taco Bell Inc were US based franchise organizations that commenced trading in Australia in 1981 also selling Mexican style food.

The US based Taco Bell organizations relied upon s.52 of the Trade Practices Act, 1974 (Cth) (“Trade Practices Act”) (now s.18 of the Australian Consumer Law but in similar terms), and sought, amongst other orders, that Taco Co of Australia cease using the name “Taco Bell Pty. Ltd.” or any name deceptively similar to the name “Taco Bell” in operating its Mexican food restaurants in Australia (albeit only in two Sydney locations).

At the time of making their claims seeking orders against the Australian operators, the American Franchisors had:

  1. not carried on business in Australia;
  2. not used the mark “Taco Bell”;
  3. not used the name “Taco Bell”

in relation to restaurants or goods or services supplied in any restaurants in the Sydney metropolitan area.

Whilst the Courts accepted that a number of people in the relevant area knew of restaurants operated in America by the American Franchisors, the Court acknowledged there was absolutely no evidence that Taco Bell (USA Franchisors) had sold in the area “a class of goods to which the particular trade name applies” (paraphrased judgment)

Lord Diplock decision Taco BellThe plain fact was that the American Franchisors did not at the time of making their claim have any relevant goodwill or business in the Sydney metropolitan area.

In the initial judgment, the Australian operators were able to continue trading as they always had. The US Franchisors appealed the decision, and on appeal the Australian operators sought and obtained, amongst other orders that, the US Franchisors in all its guises, be restrained from operating any restaurants in the Sydney metropolitan area under the name “Taco Bell” or under any name similar which is deceptive or misleading or which is likely to deceive or mislead.

The case was decided on the facts that the Australian operators had established business years before the American Franchisors tried to commence operations in Australia and as such the goodwill and reputation of the name “Taco Bell”, at least in the Sydney metropolitan area was connected with the Australian operators, not the American Franchisors.

BBQ King

The other case occurred 26 years later.

BBQ King was the name of a well-known restaurant in Golburn Street, Haymarket, in Sydney. Anakin owned the trademark:/

BBQ King Logo

Anakin was a director of two companies that operated the BBQ King restaurant.

The restaurant opened around 1982 and has been in Goulburn Street (albeit in two adjacent premises) since then.

In 2005, Chatswood BBQ King Pty Ltd opened the Chatswood BBQ King restaurant in Victoria Avenue, Chatswood, NSW. The restaurant used the sign or logo:

BBQ King Chatswood

In the case, Anakin claimed that the Chatswood operator:

  • infringed Anakin’s registered trade mark,
  • engaged in misleading and deceptive conduct in contravention of s 52 and s 53 of the Trade Practices Act; (now s.18 and s.29 respectively of the Australian Consumer Law) and
  • tortiously passed off its restaurant in Chatswood as a restaurant associated with the BBQ King restaurant in Goulburn Street, Sydney.

His Honour Justice Branson found that:

  1. The use of different fonts and, in the one case, upper case lettering, did not avoid the likelihood of deception.  The differences are not marked and the words convey the same message.  That message is not to be determined by giving separate consideration to “BBQ” and “King” but rather by giving consideration to them as a composite phrase.
  2. The logo used by Chatswood’s operator was deceptively similar to the Trademark of Anakin.
  3. The evidence supported a finding that there was a real chance of customers being misled or deceived by the name of the Chatswood restaurant.  As, he found that, it was more likely than not that the name of the Chatswood BBQ King was selected because the Chatswood operator appreciated the possibility that customers might be led to believe that the restaurant was associated with the BBQ King restaurant in Goulburn Street, Sydney.

The lessons from the cases are that when many people identify the name under which a restaurant operates belongs to an existing operator, if another choses to use a similar name, the new operator is obligated to ensure that the new restaurant is adequately distinguished from the existing.

If the new operator does not fulfill this obligation, they will be restrained from using an infringing trademark where the name is registered as a trademark, and or will be restrained from engaging in misleading or deceptive conduct by using a deceptively similar or a name that displays a sponsorship, affiliation or association with the existing restaurant through the name chosen.

These cases, and in particular, Sam and Sarah Hogg’s unfortunate situation, illustrate that the obtaining of a business name, does not carry with it any goodwill or proprietary rights. It is merely a record of who is trading under a name not being just their own legal name. Also it is not sufficient to prevent the owner of a trademark from forcing them to cease and desist in using such business name when the business name infringes an existing registered trademark and or amounts to the owners of the business name engaging in misleading and deceptive conduct.


Intellectual Property