Federal Court of Australia

Director of Consumer Affairs Victoria v White Ray (Oakleigh) Pty Ltd [2026] FCA 497

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay to the State of Victoria pecuniary penalties totalling $600,000.00, such amount to be paid as follows, namely:

(a)    $300,000.00 within 15 days of the date of these orders; and

(b)    $300,000.00 within six months of the date of these orders.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1    By an originating application dated 11 October 2024, the applicant (hereafter, the “Director”) moves for relief in the form of pecuniary penalties, which she hopes to have imposed upon the respondent (“RWO”) in respect of conduct in which she says that it engaged in contravention of ss 18 and  30(1) of the Australian Consumer Law (the “ACL”). The ACL comprises sch 2 to the Competition and Consumer Act 2010 (Cth) (the “CAC Act”). It has (relevantly for present purposes) force as a law of the Commonwealth: CAC Act, s 131(1). The same text is also given force as a law of Victoria by ss 8 and 12 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (the “ACLFT Act”), which refer to it as the Australian Consumer Law (Victoria).

2    The conduct in question inhered in the making of public representations about nine residential properties that RWO was engaged to market and sell between February 2022 and November 2023. In short, the Director maintains that RWO advertised the properties in question for sale at indicative prices that were materially below those for which it actually (and, as it happened, correctly) anticipated that they would sell.

3    By orders made on 11 June 2025, the Director’s claims against the former second respondent were dismissed by consent. Thereafter, an accord was struck as between the Director and RWO, pursuant to which the parties have jointly proposed for the court’s consideration a statement of agreed facts (and associated documents), a minute of final orders that the court might make and some joint submissions directed to why the court should make them. The proposed orders contemplate that the court should recognise RWO’s contraventions of the ACL and impose upon it pecuniary penalties totalling $600,000.00, payable in two instalments over a period of six months.

4    For the reasons that follow, I am satisfied that it is appropriate to—and I will—grant relief substantially in the form that is jointly proposed.

5    RWO operates a real estate agency. In the usual course of its business, clients retain it to assist with the sale of their properties, which invariably involves RWO making various public representations about those properties for consumption by those who are in the market to purchase them. Just as invariably, those representations touch upon the price for which it is anticipated that each such property will sell.

6    The statement of agreed facts establishes that, on nine occasions between March 2022 and November 2023, RWO advertised properties for sale at indicative prices that were substantially (in some cases, more than 30%) below those for which they ultimately sold. In most cases, those advertised amounts were substantially (in some cases, more than 30%) below the sale amounts that RWO expected would be realised. Those expectations were variously recorded in documentation agreed with RWO’s vendor clients or otherwise in internal communications. The discrepancies are all agreed and are established by means of the statement of agreed facts.

7    Section 18 of the ACL provides (and at material times provided) as follows:

18 Misleading or deceptive conduct

(1)     A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2)     Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).

Note:     For rules relating to representations as to the country of origin of goods, see Part 5-3.

8    Section 30(1) of the ACL provides (and at material times provided) as follows:

30 False or misleading representations about sale etc. of land

(1)     A person must not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of an interest in land or in connection with the promotion by any means of the sale or grant of an interest in land:

…

(c)     make a false or misleading representation concerning the price payable for the land; or

    …

9    Presently, it is accepted, in respect of each of the nine properties adverted to above, that:

(1)    RWO advertised the property for sale and, in doing so, nominated an indicative sale price (or price bracket) of (or within) which it anticipated that the property would sell;

(2)    it did so in trade or commerce;

(3)    the price so advertised was below:

(a)    what it expected would be the price for which the property would sell; and

(b)    the price for which the property was actually sold;

(4)    the representations that were made were:

(a)    misleading or deceptive, or such as was likely to mislead or deceive;

(b)    false or misleading as to the price payable; and

(c)    in each case, deliberately so; and

(5)    the making of those representations was effected in contravention of both ss 18 and 30(1)(c) of the ACL.

10    The gross commissions (excluding GST and amounts paid by way of commission to individual agents) that RWO earned from the sale of the nine relevant properties totalled $204,367.26, a little over $70,000.00 of which is recognised as its net profit. RWO is a small business. In the year ending 30 June 2025, it achieved gross revenues totalling a little over $4 million, which generated a net profit before tax of slightly above $215,000.00.

11    Perhaps for obvious reasons, there is no evidence quantifying in any precise manner the harm that the misrepresentations described above were apt to visit. Logically, that harm inhered in the creation of false expectations amongst prospective purchasers; and, in particular, in their subjection to wasted time and, potentially, wasted expenditure associated with their considering purchases that they might otherwise not have been minded to consider. Some of the nine properties were sold upon terms that contemplated the payment of sales commissions that incorporated bonuses payable upon the degree to which the sale price exceeded the vendor’s reserve.

12    RWO accepts that, at the times of present relevance, it did not have in place systems that were adequate to ensure that the representations that it made concerning the prices of the properties that it was engaged to market were made consistently with the requirements of ss 18 and 30(1)(c) of the ACL. It has since taken steps to address that deficit. The present action represents the first and only time that it has found itself on the wrong end of charges like those that the Director has brought. It has cooperated with the Director in getting the matter to the agreed position in which it now stands.

13    The court has original jurisdiction with respect to those aspects of the Director’s claims that arise under the ACL: CAC Act, s 138(1); Judiciary Act 1903 (Cth), s 39B(1A)(c). That being so, it enjoys jurisdiction to determine the whole of the justiciable controversy, including those claims that are advanced under the ACL as it exists in Victorian statute law: Re Wakim; Ex parte McNally (1999) 198 CLR 511, 585-6 [139]-[140] (Gummow and Hayne JJ).

14    Section 224(1) of the ACL confers upon the court a power to impose pecuniary penalties in respect of conduct engaged in in contravention of s 30(1)(c) of the ACL. The Director has standing to prosecute an action for relief of that nature, at least insofar as it is premised upon the ACL as an instrument of Victorian law: ACL, ss 2(1), 228; ACLFT Act, s 10(1). Although not now pressed, the Director’s originating application seeks other forms of relief, including relief that she has standing to seek under the ACL as an instrument of federal law. There is, then, no doubt that the Director has standing to seek and the court has jurisdiction to grant the relief that the parties jointly propose.

15    In fashioning pecuniary penalties appropriate to be imposed in respect of acts or omissions engaged in in contravention of s 30(1)(c) of the ACL, the court must, by operation of s 224(2) of the ACL, have regard to all relevant matters, including:

(1)    the nature and extent of the act or omission;

(2)    any loss or damage occasioned by the act or omission;

(3)    the circumstances attending the act or omission; and

(4)    whether the person who engaged in the conduct has previously been found to have engaged in similar conduct.

16    The parties are agreed that RWO contravened s 30(1)(c) of the ACL on nine occasions (one occasion related to each of the nine properties that are the subject of the action). Further, they are agreed that penalties totalling $600,000.00 are appropriate to be imposed in respect of those contraventions. It is proposed that half of that amount be paid within 15 days of the court’s orders and the remainder within six months.

17    The principles that regulate the imposition of pecuniary penalties—and, in particular, the imposition of agreed pecuniary penalties—are notorious and well-settled: Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24, 44-5 [125]-[129] (Wigney, Beach and O’Bryan JJ). I need not rehearse them now. For the reasons that the parties have very helpfully articulated in their joint submissions, I have not the slightest hesitation in accepting that the total amount of the penalties that are proposed is within the boundaries of what the court would reasonably be minded to impose independently of any agreement. In saying so, I have taken account of the following matters (each of which is the subject of address in the parties’ joint submissions), namely:

(1)    the nature and extent of the acts that constitute the contraventions that are agreed;

(2)    the circumstances attending each instance of relevant conduct;

(3)    RWO’s status as a first-time contravener;

(4)    the maximum penalty amounts for which the ACL at relevant times provided;

(5)    the loss or damage that the relevant conduct caused or, so far as the evidence permits, should be presumed to have caused;

(6)    the degree to which RWO profited from its conduct;

(7)    RWO’s size and financial position;

(8)    the deliberateness of RWO’s conduct;

(9)    the systems RWO had in place to ensure that its conduct complied with the norms established by the ACL;

(10)    RWO’s willingness to address its systemic shortfalls by means of remedial actions; and

(11)    RWO’s efforts to assist the Director and cooperate in relation to the present matter.

18    None of those individual considerations is dispositive for present purposes. As authority makes clear, the court’s task now is one of “instinctive synthesis”, the proper discharge of which requires an holistic consideration of all relevant circumstances: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25, 37-8 [44] (Jagot, Yates and Bromwich JJ).

19    It is unnecessary to trespass beyond that high-level analysis. As I have said, the circumstances as they now present are such that I have no hesitation in accepting that the total amount that the parties jointly propose by way of pecuniary penalty is within what is properly described as appropriate, as are the timeframes within which it is proposed that it should be paid.

20    For that reason, it should be endorsed and I endorse it.

Associate:

Dated:    24 April 2026