FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Beacon Products Pty Limited (in liq) (No 2) [2026] FCA 855

ORDERS

THE COURT ORDERS THAT:

1.    The matter be listed for a case management hearing at 9.30 am on 23 July 2026 for the purpose of making timetabling orders for a hearing on relief, including the making of declarations and pecuniary penalties.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    INTRODUCTION

1    In the period between November 2016 and December 2022, the first respondent, Beacon Products Pty Ltd (in liq), relevantly operated a business for the sale of cleaning goods and, from about January 2020 to December 2022, also operated a business for the sale of printer cartridges and inks for commercial and industrial use (together, Businesses).

2    In December 2022, Beacon transferred the Businesses to the second respondent, Zandox Group Pty Ltd (in liq).

3    In the period between November 2016 and April 2023, the third respondent, Warren Skry, had overall responsibility for the management and operation of the Businesses, conducted by Beacon and Zandox (together, Corporate Respondents).

4    The central issues for determination in this proceeding are first, did the use of particular sales systems and techniques by the Corporate Respondents in their dealings with consumers constitute unconscionable conduct and/or misleading or deceptive conduct in contravention of s 18, s 21 and s 29(1)(d) and 29(1)(m) of Sch 2 (Australian Consumer Law or ACL) of the Competition and Consumer Act 2010 (Cth) (Act) and second, was Mr Skry an accessory to any contraventions by the Corporate Respondents of s 21 of the ACL.

5    The applicant, the Australian Competition and Consumer Commission (ACCC), obtained leave to proceed against the Corporate Respondents pursuant to s 500(2) of the Corporations Act 2001 (Cth) on the condition that the ACCC not seek to enforce any relief granted against them without the leave of the Court. The liquidators of both Corporate Respondents have advised that they do not intend to take any active steps in the proceeding and will submit to any orders of the Court, other than any costs orders made against them in their personal capacity.

6    Mr Skry retained solicitors to act on his behalf in the proceeding and on 6 August 2025 filed an amended defence (Defence). He has not, however, served any evidence in the proceeding and has taken no further step in the proceeding since his solicitors ceased to act for him on 9 December 2025. The Defence includes admissions as to certain factual matters but no admissions of contravention by Mr Skry.

7    The misleading or deceptive conduct case advanced by the ACCC against the Corporate Respondents for contraventions of s 18, s 29(1)(d) and s 29(1)(m) of the ACL is directed at numerous representations alleged to have been made by the Corporate Respondents to consumers concerning alleged agreements to acquire goods from the Corporate Respondents.

8    The unconscionable conduct case advanced by the ACCC directly against the Corporate Respondents and indirectly against Mr Skry for contraventions of s 21 of the ACL is directed at the alleged operation of two systems or patterns of behaviour by the Corporate Respondents.

9    First, the ACCC contends that in the period between November 2016 and April 2023, the Corporate Respondents operated a system or engaged in a pattern of behaviour that comprised one or more of the following elements (First System):

(a)    a representative of a consumer would be contacted and asked for information about the consumer under the pretence of conducting a marketing campaign;

(b)    subsequently, the representative of the consumer would be contacted to confirm delivery details for an order for goods that had not been made by the consumer to enable either free samples to be dispatched or further product information or product samples to be provided to the consumer;

(c)    the representative of the consumer would be informed that a voice recording would be made of the confirmation of delivery and contact details in the telephone call;

(d)    only that part of the telephone call in which delivery and contact details were given would be recorded so that it could later be relied on by the Corporate Respondents as evidence of the purported confirmation of an order from the consumer; and

(e)    various goods would then be delivered to the consumer.

10    Second, the ACCC contends that in the period between September 2020 and February 2023, the Corporate Respondents operated a system or engaged in a pattern of behaviour that comprised one or more of the following elements (Second System):

(a)    following an initial sale of goods to a consumer that had been delivered to the consumer and paid for by the consumer (Initial Order), a representative of the consumer would be contacted to confirm delivery details for a further order that had not been placed by the consumer;

(b)    following the Initial Order, in the absence of any request or authorisation from the consumer, a subsequent delivery of goods would be made to the consumer (Subsequent Delivery), and an invoice for those goods would be issued to the consumer;

(c)    the subsequent delivery would contain a larger volume of goods than the Initial Order;

(d)    no written terms or conditions would be provided with the Subsequent Delivery;

(e)    an invoice would be issued to the consumer for the Subsequent Delivery in an amount higher than the invoice for the Initial Order;

(f)    if the consumer sought to query or challenge the Subsequent Delivery, it would be advised that the Initial Order was for multiple deliveries of goods, no assistance could be provided for cancelling orders already made, the consumer had to agree to the final or last order in order to close off the account, the records for the Initial Order proved it was for multiple supplies of goods, the price for the Initial Order was only offered on the basis that it was for multiple supplies of goods; and

(g)    if the consumer paid the invoice for the Subsequent Delivery, steps (a) to (e) above would be repeated until the consumer had repeatedly disputed the orders for a Subsequent Delivery or had threated to report the Corporate Respondent to a regulator, such as the ACCC.

11    For the reasons that follow, I have concluded that the Corporate Respondents have engaged in the misleading or deceptive conduct and unconscionable conduct alleged by the ACCC, and Mr Skry was relevantly involved in the unconscionable conduct contraventions. The issue of relief, including declarations of contravention and pecuniary penalties, is to be addressed in a subsequent hearing.

B.    GENERAL LEGAL PRINCIPLES AND ISSUES

B.1.    Onus of proof

12    The ACCC bears the onus of proof on the balance on probabilities and to the standard advanced by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 as subsequently reflected in s 40(1) of the Evidence Act 1995 (Cth). It requires a standard of “reasonable satisfaction” that should “not be produced by inexact proofs, indefinite testimony, or indirect inferences”: FWO v Sushi Bay Pty Ltd (in liq) (No 2) [2024] FCA 76 at [9] (Katzmann J).

13    Further, the ACCC is entitled to the benefit of inferences against Mr Skry by reason of his failure to call witnesses or give evidence himself. To the extent that an issue arises that is one on which an absent witness or Mr Skry could have been expected to have given evidence, an inference can be drawn that the evidence would not have assisted his case: Jones v Dunkel (1959) 101 CLR 298 at 308 (Kitto J), 312 (Menzies J) and 321 (Windeyer J). It does not matter that the party who could have called the evidence does not carry the onus of proof. Evidence that the witness might have contradicted may be accepted more readily, and any inference favourable to the other party for which there is a foundation in the evidence can more comfortably be drawn. These principles apply including where the witness is the party themselves: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63] (Heydon, Crennan and Bell JJ); Chong & Neale v CC Containers Pty Ltd (2015) 49 VR 402; [2015] VSCA 137 at [212] (Redlich, Santamaria and Kyrou JJA). These principles have been applied in the context of civil penalty proceedings in Fair Work Ombudsman v DTF World Square Pty Ltd (in liq) (No 3) [2023] FCA 201 at [16] (Katzmann J) and in Sushi Bay at [12] (Katzmann J).

B.2.    Evidence relied upon by the ACCC

14    The ACCC relies on affidavits from eleven representatives of consumers with whom the Corporate Respondents engaged in various aspects of the First System and the Second System (together, Systems). I accept the evidence given by those witnesses. It was supported by contemporaneous documents, and the accounts given by each representative was consistent with, and substantially corroborated by, the evidence given by other representatives of their dealings with the Corporate Respondents.

15    In its case against Mr Skry, the ACCC relies upon admissions made by Mr Skry in the Defence and in the course of his examination under s 155(1)(c) of the Act (s 155 examination). Admissions made by an examinee in a s 155(1)(c) examination are admissible in a case against the examinee personally: Australian Competition and Consumer Commission v Construction Forestry Mining Employees Union [2008] FCA 678 at [131] (Finn J). Mr Skry was provided with a copy of the s 155 examination transcript but did not sign it. The ACCC has otherwise established the authenticity and admissibility of the transcript by tendering a copy of the audio recording of the transcript and advancing affidavit evidence confirming the identity of the speakers on the transcript, including Mr Skry, and the accuracy of the transcriptions of the admissions made by Mr Skry on which the ACCC relied, by reference to the audio recording, consistently with the approach taken by Gilmour J in Australian Securities and Investments Commission v Fortescue Metals Group (No 2) (2009) 176 FCR 529; [2009] FCA 424 at [43] with respect to the equivalent tender of an unsigned transcript of an examinations conducted under s 19 of the Australian Securities and Investment Commission Act 2001 (Cth).

B.3.    Corporate Respondents’ representatives & use of pseudonyms

16    The contemporaneous documents and affidavits of consumer witnesses relied upon by the ACCC include references to the names of many people who were engaged in the conduct comprising the Systems. The specific employment status of these people, however, is not apparent, in particular, whether they were employees or agents of Beacon (in the period up to December 2022), or employees or agents of Zandox (in the period after December 2022). I have therefore referred to these people as “representatives” of the Corporate Respondents in these reasons, many of whom are only identified by their first name.

17    An unusual and concerning characteristic of the conduct of the representatives of the Corporate Respondents was the extent to which they used pseudonyms, rather than their actual names, in their oral and written communications with consumers, including by way of creating separate email addresses, using their pseudonyms. No coherent or plausible reason for the use of pseudonyms was apparent, other than an ostensible desire by the representatives of the Corporate Respondents not to disclose their true identity to the consumers, given the nature and character of the sales tactics that they were employing.

18    I am satisfied that the contemporaneous documents admitted into evidence establish that the true identities of the following pseudonyms used by representatives of the Corporate Respondents were Rachel Hammond (for “Lucy”), Sabrina Vaccaro (for “Jo”) and Saira Raza (for “Khloe”, “Khloe King” and “Kim”) and that Mr Skry used the pseudonym, “Warren Smith”. I am not otherwise satisfied that it is possible to identify conclusively the true identities of other pseudonyms used by representatives of the Corporate Respondents, many of which appear to be only first names.

19    Other representatives of the Corporate Respondents, who might have used their real names or pseudonyms, that engaged in the dealings between the Corporate Respondents and the consumers that the ACCC provides as examples to establish the existence of the Systems were as follows:

(a)    a representative who used the name “Czarina”;

(b)    a representative who used the name “Santhosh”;

(c)    a representative who used the name “Rob”;

(d)    a representative who used the name “Gemma”;

(e)    a representative who used the name “Jade Danniels”;

(f)    a representative who used the name “Anthia”;

(g)    a representative who used the name “Sue”.

C.    THE ACCC’S MISLEADING OR DECEPTIVE CONDUCT CONTENTIONS

20    The ACCC advances the following misleading or deceptive conduct contentions against the Corporate Respondents.

21    First, the ACCC contends that the Corporate Respondents made representations to consumers that they had agreed to acquire goods in circumstances where consumers had not agreed to acquire the goods (Agreement to Acquire Representations, and each an Agreement to Acquire Representation). The ACCC contends that on each occasion when an Agreement to Acquire Representation was made by either of the Corporate Respondents, it engaged, in trade or commerce, in misleading or deceptive conduct or conduct that was likely to mislead or deceive in contravention of s 18 of the ACL and made a false or misleading representations that consumers had agreed to acquire goods in contravention of s 29(1)(d) of the ACL.

22    Second, the ACCC contends that the Corporate Respondents made representations to consumers that they did not have any right to terminate agreements for the supply of goods in circumstances where consumers had not agreed to acquire goods on an ongoing basis (Termination Rights Representations, and each a Termination Rights Representation). The ACCC contends that on each occasion a Termination Rights Representation was made by either of the Corporate Respondents, it engaged, in trade or commerce, in misleading or deceptive conduct or conduct that was likely to mislead or deceive in contravention of s 18 of the ACL and made a false or misleading representation concerning the exclusion of a right in contravention of s 29(1)(m) of the ACL.

23    Third, the ACCC contends that Beacon made representations to consumers that they did not have any right to return and receive a refund for goods delivered by Beacon in circumstances where consumers had not agreed to acquire the goods (Return Rights Representations, and each a Return Rights Representation). The ACCC contends that on each occasion a Return Rights Representation was made by Beacon, it engaged, in trade or commerce, in misleading or deceptive conduct or conduct that was likely to mislead or deceive in contravention of s 18 of the ACL and made a false or misleading representation to consumers concerning the exclusion of a right in contravention of s 29(1)(m) of the ACL.

24    Fourth, the ACCC contends that the Corporate Respondents made representations to consumers that they had agreed to acquire goods on an ongoing basis in circumstances where consumers had not agreed to acquire the goods on an ongoing basis (Ongoing Agreement Representations, and each an Ongoing Agreement Representation). The ACCC contends that on each occasion an Ongoing Agreement Representation was made by either of the Corporate Respondents, it engaged, in trade or commerce, in misleading or deceptive conduct or conduct that was likely to mislead or deceive consumers in contravention of s 18 of the ACL and made a false or misleading representation that consumers had agreed to acquire goods in contravention of s 29(1)(d) of the ACL.

D.    CONDUCT EVIDENCING THE FIRST SYSTEM

D.1.    Overview

25    The ACCC principally seeks to rely on the dealings between the Corporate Respondents and the following seven consumers, by way of example, to establish the existence of the First System.

D.2.    Bridgestone Armadale

26    Bridgestone Select Tyre & Auto (Bridgestone Armadale) was a tyre and mechanical repair shop located in Armadale, Western Australia with two employees, one of whom was Christopher Walling-Moore.

27    On or about 15 November 2022, a representative of Beacon telephoned Mr Walling-Moore. During that conversation, Mr Walling-Moore told the Beacon representative that Bridgestone Armadale was not interested in purchasing any goods from Beacon. The Beacon representative offered to send out a sample of degreaser and sanitiser, which Mr Walling-Moore accepted, on the basis that the sample would be free of charge. The Beacon representative then told Mr Walling-Moore that they would start to record the conversation and asked for contact and delivery details. At no point during the call did Mr Walling-Moore agree to purchase any degreaser and sanitiser from Beacon.

28    In late December 2022, Bridgestone Armadale received delivery of two large drums – one being degreaser and the other being hand sanitiser – with no invoice and Mr Walling-Moore signed to accept them without knowing who had sent them. In early January 2023, a Beacon representative contacted Bridgestone Armadale requesting payment for the drums of degreaser and hand sanitiser and provided an invoice in the amount of $686.62. Beacon repeated its requests for payment multiple times until March 2023. On each occasion, Mr Walling-Moore told the Beacon representative that the matter was being investigated.

29    On 21 February 2023, a Beacon representative, using the name “Czarina”, sent an email to Mr Walling-Moore stating that attached was “a copy of the voice confirmation of yourself authorising the order”. That recording did not include the entirety of Mr Walling-Moore’s conversation with the Beacon representative on 15 November 2022.

30    I am satisfied that by its representatives’ conduct in (a) following up payment of the invoice by telephone and by email, including sending the invoice to Mr Walling-Moore by email following two of those telephone calls, and (b) sending the partial voice recording to Mr Walling-Moore in an email and describing it in the email as a confirmation authorising the order, Beacon represented, on each occasion, that Bridgestone Armadale had agreed to acquire of degreaser and hand sanitiser from Beacon and thereby made Agreement to Acquire Representations to Bridgestone Armadale.

31    The Agreement to Acquire Representations made by Beacon to Bridgestone Armadale were false because they were made in circumstances where Bridgestone Armadale had not agreed to acquire degreaser and hand sanitiser from Beacon.

D.3.    JV Hospital

32    The Jerrabomberra Veterinary Hospital (JV Hospital) is located in Jerrabomberra, New South Wales.

33    On or about 13 July 2020, a Beacon representative telephoned a representative of JV Hospital who informed the Beacon representative that JV Hospital used a Kyocera SS4100DN printer and stated that “Brooklyn” was the “buyer”, that is, the person responsible for purchasing printer cartridges for JV Hospital.

34    On 23 June 2022, Ms Hammond of Beacon, using the pseudonym “Lucy”, telephoned Brooklyn Perrin, an employee of the JV Hospital. Ms Hammond stated she was calling about the order for disinfectant. Ms Perrin understood this to mean an existing order. Ms Hammond then started to record the conversation. Ms Perrin confirmed the delivery and contact details of the Hospital for the 25-litre drum of sanitiser and disinfectant to be delivered to the hospital.

35    A few weeks later, Beacon caused the 25-litre drum of sanitiser to be delivered to JV Hospital together with an invoice dated 27 June 2022 in the amount of $438.90.

36    On 12 August 2022, JV Hospital paid the invoice.

37    On or about 17 August 2022, Ms Perrin telephoned Beacon and had a conversation with a Czarina. Ms Perrin asked if JV Hospital could return the sanitiser, but Czarina said it was past the cooling off period mentioned in the call recording and that Ms Perrin had agreed to order the sanitiser. Ms Perrin stated that she wanted to return the sanitiser, but all Czarina offered was a 10% discount.

38    On 17 August 2022, a Beacon representative, using the name “Czarina”, sent an email to Ms Perrin stating “[p]lease find attached a copy of the voice recording of the order as discussed”. Further email correspondence followed in which Ms Perrin asked to return the sanitiser, but Czarina again stated that Beacon could not accept the return because it was beyond the cooling off period but offered a 10% discount, which Ms Perrin ultimately accepted. The 10% discount, however, was never received by the JV Hospital by way of refund.

39    I am satisfied that by its representatives’ conduct in (a) by calling Ms Perrin about the alleged order for disinfectant on 23 June 2022, (b) delivering the sanitiser to the JV Hospital in early July 2022, (c) stating that the hospital had agreed to order the sanitiser in the phone call on 17 August 2022, and (d) sending the JV Hospital an email attaching the recording of part of the conversation with Ms Perrin on 23 June 2022 and referring to it as “the order”, Beacon represented, on each occasion, that JV Hospital had agreed to acquire sanitiser from Beacon and thereby made Agreement to Acquire Representations to the JV Hospital.

40    The Agreement to Acquire Representations made by Beacon to the JV Hospital were false because they were made in circumstances where the JV Hospital had not agreed to acquire the sanitiser from Beacon.

41    I am satisfied that by its representatives’ conduct in stating by phone and by email on 17 August 2022 and subsequently that the JV Hospital could not return the sanitiser or receive a refund, Beacon represented, on each occasion, that the JV Hospital did not have a right to return and receive a refund for the sanitiser and thereby made Return Rights Representations to the JV Hospital.

42    The Return Rights Representations made by Beacon to the JV Hospital were false because they were made in circumstances where the JV Hospital had not agreed to acquire the sanitiser and, therefore, had the right to return it to Beacon and receive a refund.

D.4.    Peninsula Palms

43    Peninsula Palms Aged and Community Services Limited operated a retirement village and residential care facility in Rothwell, Queensland trading under the name “Peninsula Palms” (Peninsula Palms).

44    On or about 15 September 2020, a representative of Beacon made a lead generation call to Peninsula Palms and spoke to Ngaree Besse of Peninsula Palms who (a) informed the Beacon representative that Peninsula Palms used all-purpose cleaner, degreaser, truck wash and sanitiser, and (b) provided an email address for Peninsula Palms.

45    On or about 18 March 2021, a sales representative of Beacon telephoned Ms Besse. In that conversation, the Beacon representative (a) stated that she would record part of the conversation and made a recording of the remainder of the conversation only, (b) asked Ms Besse to confirm the address and other contact details for Peninsula Palms, which Ms Besse did, and (c) stated that she was confirming delivery of one 25-litre drum of sanitiser.

46    In or about late March or early April 2021, Beacon caused a drum of hand sanitiser to be delivered to Peninsula Palms. At that time or shortly after, Beacon caused an invoice dated 22 March 2021 to be sent to Peninsula Palms in the amount of $438.90.

47    On 22 April 2021, Ms Besse emailed Beacon in relation to the sanitiser that was delivered, stating that Peninsula Palms had never ordered goods from Beacon previously, querying who ordered the sanitiser and asking how to return it.

48    On 5 July 2021, a Beacon representative and Ms Besse had a telephone conversation. Ms Besse asked for an email confirmation that the order had been requested by Peninsula Palms, and that she had understood that the purpose of the earlier telephone conversation was to confirm delivery details for sanitiser or a new sanitiser machine that had already been ordered.

49    On 6 July 2021, email correspondence was exchanged between a Beacon representative, using the name “Czarina”, and Ms Besse: (a) Czarina sent Ms Besse an email attaching the recording of the part of the telephone conversation that took place on or about 18 March 2021 referring to it as “a copy of the voice recording of yourself confirming and authorising the order”, (b) in response, Ms Besse stated that at no stage in the recording did she ask for the sanitiser, said she was giving contact details to accept a delivery she thought was already ordered and asked how to return the sanitiser, (c) in response, Czarina stated the recording showed that Ms Besse agreed to the purchase of the sanitiser and all she could offer was a 15% discount, and (d) after a response from Ms Besse, Czarina stated Ms Besse agreed to the order and that is why it was sent to her.

50    Ms Besse always maintained in her communications with Beacon that she did not order the sanitiser.

51    On 6 July 2021, Ms Besse emailed Beacon to request an address to return the sanitiser.

52    I am satisfied that by its representatives’ conduct in (a) issuing the invoice for 25-litre of sanitiser, (b) on 6 July 2021, sending the recording of the part of the telephone conversation that took place on or about 18 March 2021 and referring to it as authorisation of the order, and (c) twice stating in emails on 6 July 2021 that Ms Besse agreed to the purchase, Beacon represented, on each occasion, that Peninsula Palms had agreed to acquire sanitiser from Beacon and thereby made Agreement to Acquire Representations to Peninsula Palms.

53    The Agreement to Acquire Representations made by Beacon to Peninsula Palms were false because Peninsula Palms had not agreed to acquire the sanitiser from Beacon.

54    I am satisfied that by its representatives’ conduct in stating that Beacon could not accept the return, as it was clear that Ms Besse agreed to the purchase and there was no evidence of refusal on her part, and that all that Beacon could do is offer a 15% discount, in response to a request to return and obtain a refund, as set out above, Beacon represented that Peninsula Palms did not have a right to return, and therefore be relieved of the liability of payment for, the sanitiser and thereby made a Return Rights Representation to Peninsula Palms.

55    The Return Rights Representation made by Beacon to Peninsula Palms was false because it was made in circumstances where Peninsula Palms had not agreed to acquire the sanitiser from Beacon and, therefore, had the right to return them to Beacon and receive a refund.

D.5.    Geoff Richards Panel Beating

56    Richards Panel Pty Ltd operated a panel beating trading under the name “Geoff Richards Panel Beating” in Dubbo, New South Wales (GRPB). Tracey Richards was a business manager at GRPB who was not responsible for ordering goods but had oversight over that part of the business of GRPB.

57    On or about 31 August 2022, a Beacon representative, using the name “Santhosh”, made a lead generation call and spoke to a representative of GRPB called Sam. Sam informed Santhosh that GRPB used all-purpose cleaner, degreaser, truck wash, hand gel or soap and that Sam was responsible for purchasing such goods.

58    On or about 20 February 2023, a female representative of Zandox telephoned GRPB and had a conversation with Samantha Anderson. Ms Anderson confirmed she was able to make orders and receive deliveries. The Zandox representative advised Ms Anderson that GRPB had ordered a 25-litre drum of degreaser, and by reason of that advice, Ms Anderson understood that an order had already been placed by GRPB and that she was simply being asked to confirm delivery details. The Zandox representative then started to record the conversation. Ms Anderson then confirmed delivery and order details for the 25-litre drum to be delivered to GRPB.

59    On or about 13 March 2023, Zandox delivered a 25-litre drum of degreaser to GRPB.

60    At no stage had GRPB or its representatives agreed to acquire the degreaser from Zandox.

61    On 14 March 2023, Zandox issued to GRPB an invoice of $427.90 for the degreaser.

62    On 21 March 2023 and thereafter GRPB refused to pay the invoice. Czarina sent an email to GRPB stating “[p]lease find attached a copy of the voice confirmation of Sam Anderson authorising the order”. The recording only included the part of the conversation Ms Anderson had with the female representative of Zandox on 20 February 2023 in which she confirmed delivery details.

63    I am satisfied that by its representatives’ conduct in informing Ms Anderson on or about 20 February 2023 that Zandox had ordered degreaser, in sending GRPB an invoice in respect of the degreaser that had been delivered on 13 March 2023 and in sending GRPB an email on 21 March 2023, attaching the recording of part of the conversation with Ms Anderson on or about 20 February 2023 and referring to it as a confirmation authorising the order, as set out above, Zandox represented, on each occasion, that GRPB had agreed to acquire degreaser from Zandox and thereby made Agreement to Acquire Representations to GRPB.

64    The Agreement to Acquire Representations made by Zandox to GRPB were false because they were made in circumstances where GRPB had not agreed to acquire the degreaser from Zandox.

65    The degreaser was only collected by Zandox after Ms Richards threatened to complain to the ACCC.

D.6.    Forbes Country Bakehouse

66    Forbes Country Bakehouse Pty Ltd owns and operates a bakery and café in Forbes NSW under the name “Forbes Country Bakehouse” (Forbes). Kerrie Marie Hodder has operated Forbes since 1990.

67    In or about 8 December 2021, Ms Hodder received a call from a female representative of Beacon. The Beacon representative told Ms Hodder that Forbes had ordered cleaning chemicals from Beacon, and she needed to confirm delivery details for the order. Ms Hodder told the Beacon representative that no order had been placed by Forbes with Beacon and that Forbes did not want any cleaning products. The Beacon representative repeatedly told Ms Hodder that the order had been placed and could not be cancelled. The Beacon representative then started to make a recording of the remainder of the conversation, which is reproduced below:

Beacon Products: All right, sorry. So right, I'm lost. OK, so right now we are recording. So, today’s date is just Wednesday the 8th of December 2021. If you can just state your full name.

Kerrie Hodder: Again, Kerrie Marie Hodder.

Beacon Products: And your full name of your company.

Kerrie Hodder: Forbes Country Bakehouse 15, 10th St Forbes NSW 2871.

Beacon Products: And you’re still the owner of the company.

Kerrie Hodder: I am.

Beacon Products: Excellent. Look, I’m just now confirming you have ordered of the one 25-litre drum of the super concentrated Beacon chemical supplied all-purpose kitchen cleaner. Ok so –

Kerrie Hodder: [Unclear] ordered it, so we’re paying.

Beacon Products: Sorry. OK, so it’s just the one drum. It is 25 litres. It’s 399 plus GST.

Kerrie Hodder: [Unclear] about this. Yep.

Beacon Products: And I do waive the delivery fee. Now that’s all in order. OK. And so I'll, I'll did you want me to put these on a 30-day extended account, Kerrie? So that's not payable –

Kerrie Hodder: Just send the bloody thing so I can get it paid and please don't anyone ever ring here again because I didn't order it and it's – I'm really annoyed because we've just – we've been trying to cut costs so there's no way. So anyway, just send the invoice, send the goods and then just leave us be, OK –

Beacon Products: [Overlapping] Alright, well, I’ll send your invoice via email –

Kerrie Hodder: [Overlapping] happy

Beacon Products: I'll send your invoice via email then. So, what's your email address?

Kerrie Hodder: How is it that you don't know that?

Beacon Products: Because you didn't give it to me.

Kerrie Hodder: Oh when I spoke to you and ordered it, I didn't give it to you?

Beacon Products: No, otherwise I'd have it here. So, what do you want me to do? Did you want me to email you or do you want me to just send it through your address?

Kerrie Hodder: Here's the email that I would have thought you would have if we'd have actually spoken, forbescountrybakehouse@outlook.com. All one word, all lower case.

Beacon Products: OK, so what I'll do is I'll email you your invoice and statement as well. As I said, it's not payable for 30 days after the goods arrive. If you do need time to pay, please –

Kerrie Hodder: Just send it love, please don’t say anymore and please don't say you're sorry again. Just send it to me and we'll sort it out from this end.

Beacon Products: Ok, thanks. Bye.

Kerrie Hodder: Bye.

68    In or about mid to late December 2021, Beacon delivered a 25-litre drum of kitchen cleaner to Forbes.

69    On 19 January 2022, Beacon issued an invoice to Forbes in the amount of $438.90. Ms Hodder responded to that email stating that she would return the kitchen cleaner, Forbes would not pay the invoice, and that Beacon should not contact Forbes again.

70    On 21 January 2022, a Beacon representative, using the name “Czarina”, a sent an email to Ms Hodder, stating “please find attached a copy of your voice recording confirming the delivery of the Kitchen Cleaner” and attaching the partial recording of the conversation from 8 December 2021.

71    On 24 January 2022, Sue Fleming, a representative of Beacon, emailed Mr Skry forwarding Ms Hodder’s emails dated 19 and 22 January 2022. Those emails stated that Forbes had been scammed, that Ms Hodder had not ordered the kitchen cleaner and would be forwarding information to the fraud squad and ACA.

72    On 10 March 2022, Czarina followed up with Forbes regarding the invoiced amount. Ms Hodder caused Forbes to pay the invoice and responded to Czarina by email stating that she had paid the invoice, wanted Forbes’ contact details removed from Beacon’s files, would report Beacon if they ever contacted Forbes again, and that the kitchen cleaner did not work.

73    I am satisfied that by its representatives’ conduct in (a) informing Ms Hodder on or about 8 December 2021 that Forbes had ordered kitchen cleaner from Beacon, (b) sending Forbes an invoice in respect of the kitchen cleaner that had been delivered in or about mid-late December, (c) sending Forbes an email attaching the recording of part of the conversation with Ms Hodder on or about 8 December 2021 and referring to it as authorisation of the order, and (d) sending the email requesting payment on 10 March 2022, Beacon represented, on each occasion, that Forbes had agreed to acquire kitchen cleaner from Beacon and thereby made Agreement to Acquire Representations to Forbes.

74    The Agreement to Acquire Representations made by Beacon to Forbes were false because they were made in circumstances where Forbes had not agreed to acquire the kitchen cleaner from Beacon.

D.7.    Paragalli Haulage

75    A landscaping supplies business operated in Queanbeyan, New South Wales, under the business name “Paragalli Haulage” (Paragalli Haulage).

76    On 19 January 2023, a representative of Zandox, using the name “Rob”, telephoned Meloe Russo of Paragalli Haulage and had a conversation. Rob told Mr Russo that he spoke to him a few months ago regarding truck degreaser. Mr Russo replied that “Scott” was now the person responsible for orders of that nature as opposed to him. Rob told Mr Russo that Zandox was running late with an existing delivery of degreaser but wanted to run the confirmation by Mr Russo. Rob made a recording of the remainder of the conversation only, in which Rob referred to an order of 25 litres of degreaser, and Mr Russo confirmed the delivery details.

77    In or about late January or early February 2023, Zandox delivered a 25-litre drum of degreaser to Paragalli Haulage.

78    At no stage had Paragalli Haulage agreed to acquire that drum of degreaser from Zandox.

79    On 6 February 2023, Czarina sent an email to a Paragalli Haulage representative called Guy, attaching a recording and describing it as a voice recording of Mr Russo confirming the order.

80    On 7 February 2023, Guy sent an email to Czarina attaching the full recording of the conversation made by Paragalli Haulage.

81    On 8 February 2023, Ms Fleming forwarded Guy’s email and the full recording to Mr Skry in which she stated:

PLEASE…. have a listen to this recording, customer recorded Tristan from the beginning of the call.

This is not a solid sale, he can’t be saying this. The guy clearly says the order goes through Scott, but he completely talks over the customer. Customers think goods have been ordered and they are just confirming the delivery address etc...

We are getting way too many queries like this, just for Tristan and Jade, they can’t keep doing this.

(Just FYI, we’ve had to pick this one up like many others, an unnecessary expense)

82    On or about 21 February 2023, the goods delivered to Paragalli Haulage were returned to Zandox.

83    I am satisfied that by its representatives’ conduct in (a) implying that an order had been placed by Paragalli Haulage for degreaser from Zandox on 19 January 2023, and (b) sending an email attaching the partial recording of the 19 January 2023 conversation and referring to it as a confirmation of the order on 6 February 2023, Zandox represented, on each occasion, that Paragalli Haulage had agreed to acquire degreaser and thereby made Agreement to Acquire Representations to Paragalli Haulage.

84    The Agreement to Acquire Representations made by Zandox to Paragalli Haulage were false in circumstances where Paragalli Haulage had never agreed to acquire the degreaser from Zandox.

D.8.    Discovery Childcare and Education Centre

85    A childcare centre operated in Croydon, Victoria, under the business name “Discovery Childcare and Education Centre” (Discovery Centre).

86    On 26 September 2022, a representative of Beacon, using the name “Rob”, telephoned Morgan LeTret, a representative of the Discovery Centre. Rob stated that he would record the next part of the conversation and made a recording of the remainder of the conversation from that point onwards only. Rob indicated that there was an existing order for 25 litres of sanitiser disinfectant to be delivered. When Mr LeTret stated that he wanted to check with the Discovery Centre and call Rob back, Rob stated that all he was doing that day was ensuring the sanitiser disinfectant was not sent out before the Discovery Centre needed it. Rob stated that the order was just for the one drum that was due to be delivered to the Discovery Centre, and that it was the last order that was due to be delivered.

87    On 27 September 2022, Ms Fleming sent an email to Mr Skry attaching the recording made by Rob. She asked Mr Skry to listen to it and let her know if he would put the sale through and stated that she thought it would become a query down the track.

88    On 27 September 2022, Mr Skry made a telephone call to Ms Fleming in which they discussed the recording made by Rob, and Mr Skry either authorised Ms Fleming to proceed with the sale to the Discovery Centre or alternatively did not take any steps to prevent the sale being approved. This can be inferred from Mr Skry’s admission in his second s 155 examination that if he had told Ms Fleming not to put the Discovery Centre order through, it would not have been put through, and the fact that the order was put through, as is evident from the matters which follow.

89    On or about 12 October 2022, Beacon delivered the sanitiser disinfectant to the Discovery Centre.

90    On 12 January 2023, a Zandox representative, using the name “Gemma”, sent an email to a representative of the Discovery Centre called Tamara, attaching a copy of an invoice dated 28 September 2022 addressed to the Discovery Centre, in the total amount of $350.90, stated to be due on 28 October 2022.

91    I am satisfied that by its representatives’ conduct in stating to Mr LeTret on 26 September 2022 that there was an existing order for the sanitiser disinfectant to be delivered to the Discovery Centre, Beacon represented that the Discovery Centre had agreed to acquire the sanitiser disinfectant and thereby made an Agreement to Acquire Representation to the Discovery Centre.

92    I am satisfied that by its representatives’ conduct in issuing an invoice for the sanitiser disinfectant to the Discovery Centre on 12 January 2023, Zandox represented that the Discovery Centre had agreed to acquire the sanitiser disinfectant and thereby made an Agreement to Acquire Representation to the Discovery Centre.

93    The Agreement to Acquire Representations made by Beacon and Zandox to the Discovery Centre were false because they were made in circumstances where the Discovery Centre had not agreed to acquire the sanitiser disinfectant from Beacon.

D.9.    Conclusion

94    I am satisfied that the findings that I have made at [26] to [55], [66] to [74], [85] to [89], [91], and [93] above are sufficient to establish that Beacon, by the conduct of its representatives, engaged in the First System in the period between at least July 2020 and December 2022.

95    I am satisfied that the findings that I have made at [56] to [65], [75] to [84], [90], [92] to [93] above are sufficient to establish that Zandox, by the conduct of its representatives, engaged in the Second System in the period between at least February 2023 and March 2023.

E.    CONDUCT EVIDENCING THE SECOND SYSTEM

E.1.    Overview

96    The ACCC principally seeks to rely on the dealings between the Corporate Respondents and the following ten consumers, by way of example, to establish the existence of the Second System.

E.2.    Dale T Sullivan

97    Shallum Holdings Pty Ltd operated a farming business trading as “Dale T Sullivan” in Casterton, Victoria (Dale T Sullivan).

98    On 2 November 2020, Ms Vaccaro of Beacon, using the pseudonym “Jo”, sent a text message to Dale Sullivan of Dale T Sullivan requesting that he reply “YES” to confirm delivery of truck wash, degreaser, hand gel and hand cleaner. Mr Sullivan responded “Yes please note this is my last order”.

99    In or about November 2020, Beacon caused goods to be delivered to Dale T Sullivan.

100    On 29 January 2021, a representative of Beacon communicated with Mr Sullivan and repeated in a text message the same day that there was a further delivery of goods, being “100lxtruckwash & 100lxdegreaser & hand cleaner” ready to be delivered to Dale T Sullivan. The Beacon representative confirmed to Mr Sullivan that it would be the last delivery and asked Mr Sullivan to confirm that the delivery was “confirmed for dispatch”, to which Mr Sullivan responded “Yes”.

101    In or about February 2021, Beacon caused the truck wash, degreaser and handwash to be delivered to Dale T Sullivan and on 8 April 2021 issued an invoice to Dale T Sullivan dated 29 January 2021.

102    On or about 10 May 2021, Beacon caused to be delivered to Mr Sullivan a further delivery of goods.

103    On or about 3 June 2021, Mr Sullivan telephoned Beacon and communicated with a sales representative. Mr Sullivan stated that he was disappointed that he was receiving deliveries when he already told them he wanted no more deliveries, and he stated that he would return the products. By 22 June 2021, Dale T Sullivan had returned the goods to Beacon.

104    On or about 1 July 2021, Ms Raza of Beacon, using the pseudonym “Khloe”, contacted Mr Sullivan. Ms Raza stated that she had “taken away the handwash and hand sanitiser” to finalise his order and asked him to confirm the order. Ms Raza then sent an email asking him to confirm delivery of 125 litres of truck wash and 125 litres of degreaser.

105    On or about 6 July 2021, Ms Raza telephoned Mr Sullivan. Ms Raza stated that she was recording the order and delivery details for Mr Sullivan’s “final order” and made a recording of the part of the telephone call with Mr Sullivan which followed. Ms Raza then stated that delivery of the truck wash and degreaser would be made in July and this would be the last instalment to close off the Dale T Sullivan account.

106    On 7 July 2021, Ms Fleming sent the recording made by Ms Raza of her call with Mr Sullivan to Mr Skry. I infer that Mr Skry approved, or otherwise did nothing to prevent, the sale as it subsequently occurred, as I have found below.

107    On or about 7 July 2021, Beacon issued an invoice to Dale T Sullivan for the truck wash and degreaser in an amount of $4,730.00. I infer from the issue of the invoice that the truck wash and degreaser was delivered to Dale T Sullivan in early July 2021.

108    I am satisfied that by its representatives’ conduct in (a) sending a text or email on 29 January 2021 and 1 July 2021, asking Mr Sullivan to confirm a purported existing order for goods, which had not been made, (b) stating to Mr Sullivan that there was an existing order for the delivery of various goods that would be the last delivery to Dale T Sullivan on 29 January 2021 (in at least a text message) and 6 July 2021 (in a telephone conversation), and (c) on 8 April 2021, issuing an invoice for the truck wash, degreaser and handwash to Dale T Sullivan, Beacon represented, on each occasion, that Dale T Sullivan had agreed to acquire goods from Beacon and thereby made Agreement to Acquire Representations to Dale T Sullivan.

109    The Agreement to Acquire Representations made by Beacon to Dale T Sullivan were false because they were made in circumstances where Mr Sullivan had not agreed to acquire the goods from Beacon.

E.3.    Bounce Rehab

110    A physiotherapy and Pilates studio operated in Pyrmont, New South Wales, under the business name “Bounce Rehab” (Bounce Rehab).

111    On 30 April 2021, Ms Hammond of Beacon, using the pseudonym “Lucy”, sent an email to Bounce Rehab in which she requested confirmation of a delivery of eight black toner cartridges to be delivered in mid-May 2021.

112    Later that day, a representative of Bounce Rehab requested that Beacon delay the delivery, and that it be the final delivery.

113    On or about 13 May 2021, Beacon delivered eight black toner cartridges to Bounce Rehab.

114    On 30 June 2021, Czarina sent Bounce Rehab an invoice dated 19 May 2021 in an amount of $814. It was paid by Bounce Rehab on or about 2 July 2021.

115    On or about 19 August 2021, Beacon sent an email to Bounce Rehab requesting that Bounce Rehab confirm that Beacon had the correct delivery details for a delivery of ten black toner cartridges. On 20 August 2021, Bounce Rehab responded “YES”.

116    In or about late August 2021, Beacon delivered ten black toner cartridges to Bounce Rehab, and on 31 August 2021, Beacon issued an invoice to Bounce Rehab in an amount of $1,023 for the toner cartridges.

117    On 7 September 2021, a representative of Bounce Rehab sought confirmation from Beacon that Bounce Rehab no longer had any future orders in place for ink toners, and requested that if there were any, that they be cancelled.

118    In or about early to mid-September 2021, a representative of Bounce Rehab contacted Beacon on several occasions requesting collection of products that had been delivered and a refund for invoices paid.

119    On 15 September 2021, Paul Dardagan of Bounce Rehab emailed Beacon stating that Bounce Rehab had received 30 cartridges it had not ordered (and had paid for 20 of them) and requesting Beacon to accept a return of the products and refund the payments made by Bounce Rehab. Mr Skry was notified of the situation and directed that no refund be offered, which was conveyed to Bounce Rehab on 14 December 2021 and on 11 January 2022.

120    In February 2022, Mr Dardagan continued to pursue Beacon to accept a return of the cartridges. On 15 February 2022, Ms Fleming informed Mr Skry of the requests made by Mr Dardagan.

121    At some point during the period from 18 February 2022 to 3 August 2022, Mr Skry spoke to Mr Dardagan and said he would cancel the August 2021 invoice and provide him with a partial refund of $800 plus GST.

122    In August 2022, there was further correspondence regarding return and refund of the cartridges received by Bounce Rehab in May and August 2021.

123    By October 2022, Bounce Rehab had returned to Beacon the cartridges delivered in August 2021, and Beacon had cancelled the August 2021 invoice and provided a refund to Bounce Rehab.

124    I am satisfied that by its representatives’ conduct in (a) sending an email requesting confirmation of a purported existing order on 30 April 2021 and 19 August 2021, (b) issuing an invoice for toner cartridges on 30 June 2021 and 31 August 2021, and (c) stating that Beacon would not take back the delivered cartridges because all the orders were confirmed and authorised by Bounce Rehab on 14 December 2021 and on 11 January 2022, Beacon represented, on each occasion, that Bounce Rehab had agreed to acquire the cartridges from beacon and thereby made Agreement to Acquire Representations to Bounce Rehab.

125    The Agreement to Acquire Representations made by Beacon to Bounce Rehab were false in circumstances where Bounce Rehab had not agreed to acquire the cartridges from Beacon.

126    I am satisfied that by its representatives’ conduct in stating on 14 December 2021 and 11 January 2022 that no refund would be offered to Bounce Rehab for the cartridges delivered in May 2021 and that Beacon would not take all of the cartridges back, Beacon represented, on each occasion, that Bounce Rehab did not have a right to return, and receive a refund for the cartridges delivered in May 2021, and thereby made Return Rights Representations to Bounce Rehab.

127    The Return Rights Representations made by Beacon to Bounce Rehab were false because they were made in circumstances where the Bounce Rehab had not agreed to acquire the cartridges and, therefore, had the right to return them to Beacon and receive a refund.

E.4.    Mr Keller

128    In the period from May 2013 to February 2020, John Keller operated a business in Caringbah, New South Wales, which rented space and equipment to music teachers trading under the name “the Music Teachers’ Co-operative”. Since then, Mr Keller has worked as a casual music teacher.

129    In or about April 2020, a representative of Beacon telephoned Mr Keller. Mr Keller agreed to place an order for cartridges on a one-off basis. The cartridges were delivered later that month, and Beacon issued an invoice to Mr Keller on 21 May 2020 for the cartridges. Mr Keller paid the invoice on 21 May 2020.

130    On or about 5 April 2022, a representative of Beacon, using the name “Rob”, telephoned Mr Keller. Mr Keller stated that he did not require or want ink cartridges from Beacon. Rob stated that Mr Keller had previously agreed to an order and that it could not be cancelled. Mr Keller stated that he had only agreed to one order and that was in April 2020. Rob made a recording of the remainder of the conversation in which he confirmed delivery details with Mr Keller.

131    Mr Keller agreed to accept the delivery of the ink cartridges because he had been told by Rob that it could not be cancelled.

132    On 6 April 2022, Rob telephoned Mr Keller and told him that he was calling to confirm changes to the upcoming delivery of the ink cartridges, which included an increase in the price of the cartridges. Again, Rob told Mr Keller that the existing order could not be cancelled and made a recording of the remainder of the conversation. However, Mr Keller demanded that the number of black cartridges, which have increased in price from the day before, be reduced from three cartridges to two. Following the conversation, the order was amended to reduce the number of black cartridges to be sold by one, but both the price per cartridge and the overall price was increased.

133    By 22 April 2022, the cartridges were delivered, and an invoice was issued by Beacon to Mr Keller. On 27 April 2022, Mr Keller paid the invoice.

134    In or about early November 2022, Ms Hammond of Beacon, using the pseudonym “Lucy”, telephoned Mr Keller. Ms Hammond told Mr Keller that she had a dispatch of cartridges to be sent to Mr Keller. Mr Keller responded that he did not make an order and did not want them. Ms Hammond told Mr Keller that he had made a deal for ongoing deliveries and had to accept the delivery of the cartridges. Mr Keller asked Ms Hammond what he agreed to at the beginning. Ms Hammond said that she did not have those details, but that Mr Keller had ordered the delivery, and she was following up on the original order. Mr Keller then asked whether Ms Hammond had a record of him agreeing to an ongoing order. Ms Hammond responded that she did not have a record, but she could split up or delay the invoice and ensure that this was the last order and cancel any further orders. Ms Hammond then said that she would send Mr Keller a text message to confirm these arrangements. Mr Keller responded that this needed to be the last order.

135    In his affidavit, Mr Keller said that he eventually gave up protesting the further delivery because he thought Ms Hammond was not listening to him and he was weak from chemotherapy treatment he was undergoing in 2021.

136    On 4 November 2022, Ms Hammond sent a text message to Mr Keller asking him to reply “YES” to confirm delivery of the cartridges. Mr Keller replied “Yes”, but only because he felt powerless in the face of Beacon’s persistence. The text message did not contain any reference to the price of the cartridges.

137    In or about mid to late November, Beacon delivered the cartridges to Mr Keller.

138    On 9 December 2022, Beacon issued Mr Keller with an invoice for the cartridges in the amount of $363 (incl. GST).

139    On 10 December 2022, Mr Keller sent an email to Beacon in which he stated that he did not remember agreeing to ongoing deliveries and requested proof that he had agreed to do so. Mr Keller did not receive any response to this request.

140    In his affidavit, Mr Keller said that at the time, he was earning around $420 per week or less, and, consequently, an order of $363 (including GST) was very expensive for him.

141    In or about December 2022, Mr Keller spoke to Ms Hammond on two occasions. In those conversations, Mr Keller sought to return the cartridges as he considered that he had been duped into accepting the orders. Ms Hammond responded by stating that Mr Keller could not return the cartridges as he had accepted the order and must pay for the cartridges.

142    On 11 January 2023, Czarina resent the invoice to Mr Keller. Czarina followed up Mr Keller for payment of the invoice by telephone in the following days.

143    In the period between 13 and 17 January 2023, Mr Keller telephoned Beacon seeking proof of the supposed ongoing agreement he had with Beacon. The Beacon representative told him he needed to speak to Czarina.

144    On 17 January 2023, Czarina forwarded to Mr Keller his “Yes” confirmation SMS from 4 November 2022 as proof of his order. On 20 January, Mr Keller responded, seeking, amongst other matters, proof of any agreement and an explanation for why the order volumes and prices had increased and why he was not able to cancel the order.

145    On 1 February 2023, Ms Hammond emailed Mr Keller asking him to pay his outstanding invoice so that Beacon could close his account.

146    On 1 February 2023, Mr Keller made a complaint to the ACCC about Beacon’s sales tactics and conduct.

147    In or about April 2023, Ms Hammond telephoned Mr Keller, again seeking payment of the invoice. Mr Keller told Ms Hammond that he had made a complaint to the ACCC, and the order was subject to the investigation. Ms Hammond responded that Mr Keller could post the package back and she would cancel the invoice.

148    I am satisfied that by its representatives’ conduct in (a) stating that there was an existing order to be delivered on 5 and 6 April 2022 and in early November 2022, (b) issuing, or following up payment for, an invoice for ink cartridges delivered by Beacon in April 2022, December 2022, January 2023, February 2023 and April 2023, and (c) sending an email containing Mr Keller’s “Yes” confirmation to an order as evidence of an agreement on 17 January 2023, Beacon represented, on each occasion, that Mr Keller had agreed to acquire ink cartridges, and thereby made Agreement to Acquire Representations to Mr Keller.

149    The Agreement to Acquire Representations made by Beacon to Mr Keller were false because Mr Keller had not agreed to acquire the cartridges the subject of those communications and invoices.

150    I am satisfied that by its representatives’ conduct in on or about early November 2022 and 1 February 2023 stating that Mr Keller had made an agreement with Beacon for ongoing deliveries, as set out above, Beacon represented, on each occasion, that Mr Keller had agreed to acquire cartridges from Beacon on an ongoing basis and thereby made Ongoing Agreement Representations to Mr Keller.

151    The Ongoing Agreement Representations made by Beacon to Mr Keller were false because Mr Keller had never agreed to acquire cartridges from Beacon on an ongoing basis.

152    I am satisfied that by its representatives’ conduct in stating that the delivery of ink could not be cancelled on or about 5 and 6 April 2022, Beacon represented, on each occasion, that Mr Keller did not have the right to terminate an agreement for an ongoing supply of cartridges with Beacon and thereby made a Termination Rights Representation to Mr Keller.

153    The Termination Rights Representation made by Beacon to Mr Keller was false because it was made in circumstances where Mr Keller had not agreed to acquire cartridges from Beacon on an ongoing basis.

E.5.    Mt Barker Golf Club

154    The Mt Barker Golf Club is a golf club operated at Mt Barker, Western Australia (MB Golf Club).

155    On 24 March 2022, Ms Hammond of Beacon, using the pseudonym “Lucy”, sent a text message to a representative of the MB Golf Club called Don, asking him to confirm an order for five ink cartridges to be delivered in April 2022. Don responded “YES”.

156    In or about mid-April 2022, Beacon caused ink cartridges to be delivered to the MB Golf Club.

157    On or about 3 May 2022, a representative of the MB Golf Club called Karen telephoned Beacon and had a conversation with a Beacon representative, using the name “Anthia”, in which Karen asked what the duration of the contract with Beacon was. On 6 May 2022, Ms Hammond sent a text message to Karen asking to call her back. That was followed up by Karen with a text message on 10 May 2022, where Karen asked Ms Hammond to confirm if there is a contract between Beacon and the MB Golf Club and, if so, the duration of that contract.

158    On 11 May 2022, Ms Hammond sent an email to Karen in which she (a) stated that there was no contract in place and orders were confirmed as they came through, (b) forwarded Don’s “YES” text message as a purported confirmation of the order for the cartridges delivered in April, and (c) stated that if no further cartridges were required, the account could be closed once the invoice was paid.

159    On 20 May 2022, Gillian Woodyard of the MB Golf Club responded by email stating that there appeared to be some confusion, as Don only confirmed the last order because he was informed the last order was the final order. In her email, Ms Woodyard also stated that no further cartridges were required, and the account should be closed without receiving any further printer cartridges from Beacon. Ms Hammond responded that she would make a note to close the account once the invoice was paid.

160    On or about 31 May 2022, the invoice was paid by the MB Golf Club.

161    On 27 September 2022, Jade Danniels of Beacon telephoned Don. Ms Danniels made a recording of part of the conversation only. Ms Danniels stated that (a) the final dispatch and completion of order was for five black, five photo black, five yellow, five magenta and five cyan cartridges payable 90 days after receipt of goods, (b) once it was received and paid, there would be no further deliveries to the MB Golf Club, and (c) this was a completion of the order (unless the MB Golf Club called Beacon). Don responded “ok”.

162    On 28 September 2022, Ms Fleming sent the recording to Mr Skry. Mr Skry approved the sale or otherwise did not prevent it from occurring.

163    On or about 28 September 2022, Beacon despatched the ink cartridges to the MB Golf Club.

164    In or about late September or early October 2022, Beacon caused an invoice to be issued to the MB Golf Club for the cartridges.

165    On 4 October 2022, Ms Woodyard sent an email to Ms Hammond, in which she (a) referred to the May 2022 correspondence, where Ms Woodyard confirmed that the MB Golf Club wanted no further orders, and Ms Hammond responded that Beacon would close the account once the invoice was paid, (b) stated that despite this May 2022 correspondence, the MB Golf Club received further cartridges, and (c) informed Ms Hammond that the MB Golf Club would not be paying for the cartridges.

166    On 5 October 2022, Ms Hammond sent an email to Ms Fleming, where she said that she has communicated to Ms Woodyard that the invoice issued for the cartridges needed to be paid, and that Don had confirmed the delivery, to which Ms Woodyard responded that Don was not authorised to order the cartridges and that they will be returned to Beacon.

167    I infer that on or about 27 October 2022, the MB Golf Club returned the cartridges to Beacon because a handwritten note of a Beacon representative dated 27 October 2022 records that the invoice for the goods previously delivered to the MB Golf Club should be credited.

168    I am satisfied that by its representatives’ conduct in (a) sending a text message to confirm the delivery of an existing order on 24 March 2022, (b) delivering cartridges in April 2022, (c) forwarding Don’s “YES” confirmation as purported proof of an order and indicating that payment of the invoice was required on 11 May 2022, (d) stating that there was an existing ‘final’ order on 27 September 2022, (e) issuing an invoice for the cartridges delivered in September 2022 in or about late September or early October 2022, and (f) stating the invoice needed to be paid and that Don had confirmed the order, on 5 October 2022, Beacon represented, on each occasion, that the MB Golf Club had agreed to acquire the cartridges delivered in 2022 and thereby made Agreement to Acquire Representations to the MB Golf Club.

169    I am satisfied that by its representatives’ conduct in implying in a telephone conversation on 27 September 2022 that they were seeking confirmation of a final order as part of an ongoing agreement, Beacon represented that the MB Golf Club had agreed to acquire cartridges from Beacon on an ongoing basis and thereby made an Ongoing Agreement Representation to the MB Golf Club.

170    The Agreement to Acquire Representations and the Ongoing Agreement Representation made by Beacon to the MB Golf Club were false because they were made in circumstances where the MB Golf Club had not agreed to acquire the cartridges from Beacon.

E.6.    Dan Mooney Transport

171    Dan Mooney Transport Pty Limited operated a freight business in Condobolin, New South Wales, trading as “Dan Mooney Transport” (Dan Mooney Transport).

172    On or about 18 March 2022, Ms Danniels of Beacon telephoned Dan Mooney of Dan Mooney Transport. Ms Danniels made a recording of part of the conversation. Ms Danniels stated that there would be an order of “125 litres” of truck wash at $15.96 per litre excluding GST. Mr Mooney responded that he was sure that his previous order was the final order. Ms Danniels replied that the previous order was the final order, but that they had split it into two parts, and this conversation concerned the second part of the order, which when finalised would result in the closure of Dan Mooney Transport’s account.

173    On 18 March 2022, Ms Fleming, after listening to the recording of Ms Danniel’s conversation with Mr Mooney earlier that day, raised concerns with this sale with Ms Vaccaro of Beacon because it was not apparent to her whether Ms Danniels was saying “125 litres” or “1x25L” and blind copied Mr Skry. Ms Vaccaro approved the sale.

174    In or about late March 2022 or April 2022, Beacon delivered truck wash to Dan Mooney Transport.

175    On 28 April 2022, Beacon issued an invoice in an amount of $2,365 for 5 units of “TW20 Truck Wash”, that I infer were each of 25 litres, given the recording of Ms Danniels conversations with Mr Mooney, and for freight and handling, that was stated as being due by 30 April 2022.

176    On 3 May 2022, Karen Mooney of Dan Mooney Transport responded to the first Beacon email sent on 28 April 2022 stating that “THIS IS NOT OUR ORDER PLEASE ARRANGE SOMEONE TO PICK THIS UP ASAP”.

177    On 12 July 2022, Beacon emailed again about an invoice in the amount of $2,365, with the attached invoice listing truck wash as the product description.

178    On 13 July 2022, Dan Mooney Transport emailed Beacon stating they did not ask for the order and had asked Beacon to pick the products up and stop sending goods.

179    On 15 August 2022, Czarina followed Mr Mooney up for payment of the invoice, stating that Beacon was “not prepared to wait indefinitely” for the invoice to be paid.

180    On or about 26 August 2022, Mr Mooney or another representative of Dan Mooney Transport paid Beacon the amount of $2,246.75 in satisfaction of the invoice.

181    I am satisfied that by its representatives’ conduct in (a) stating in a telephone conversation with Mr Mooney that there was an existing final order that had been split into two parts on or about 18 March 2022, (b) issuing an invoice to Dan Mooney Transport for truck wash on 28 April 2022, and (c) following up payment for the invoice on 12 July 2022 and 15 August 2022, as set out above, Beacon represented, on each occasion, that Dan Mooney Transport had agreed to acquire truck wash from Beacon and thereby made Agreement to Acquire Representations to Dan Mooney Transport.

182    I am also satisfied that by its representative’s conduct, Beacon represented in the telephone conversation with Mr Mooney on or about 18 March 2022 that there was an agreement to acquire truck wash from Beacon on an ongoing basis and thereby made an Ongoing Agreement Representation to Dan Mooney Transport.

183    The Agreement to Acquire Representations and the Ongoing Agreement Representation made by Beacon to Dan Mooney Transport were false because they were made in circumstances where Dan Mooney Transport had not agreed to acquire the truck wash from Beacon.

E.7.    IGR & DJ Williams

184    A business operated under the name IGR & DJ Williams in Toogoolawah, Queensland (IGR & DJ Williams).

185    In or about September or October 2020, Beacon delivered degreaser, hand sanitiser and hand gel to IGR & DJ Williams.

186    On 6 November 2020, Beacon sent an email to Michael Williams of IGR & DJ Williams attaching an invoice dated 23 September 2020.

187    On 28 February 2021, Beacon generated an invoice for the next delivery of four degreasers, two hand sanitiser and three hand gels to IGR & DJ Williams.

188    On 23 April 2021, Mr Williams sent an email to Beacon requesting confirmation that all business Beacon had with IGR & DJ Williams had ceased and stating that if not, he would be forced to seek help from the relevant authorities. Mr Williams then paid the invoice dated 28 February 2021.

189    On 28 May 2021, Ms Raza of Beacon, using the pseudonym “Khloe”, sent an email to Mr Williams in which she stated that his account would be closed once further identified goods were delivered and requested confirmation of delivery details.

190    In or about late May 2021, Beacon caused to be delivered to IGR & DJ Williams four degreasers and four truck wash products.

191    On or about 30 June 2021, Czarina sent Mr Williams an email attaching an invoice dated 26 May 2021 for those goods in the amount of $3,773.

192    On or about 30 June 2021, IGR & DJ Williams paid Beacon the amount of $3,773 in payment of the invoice dated 26 May 2021.

193    On 17 August 2021, Ms Danniels of Beacon telephoned Mr Williams and made a recording of part of the conversation only, in which (among other things) (a) Ms Danniels stated there was an order for 150 litres of PD4000 at $15.96 per litre ex GST and 100 litres of HGH2020 at $11.50 per litre ex GST and 50 litres of truck wash at $15.96 per litre ex GST, (b) Ms Danniels stated that this order brought the account completely up to date and that there would be nothing after this, and (c) Mr Williams stated in response that “there had better not be”.

194    On 20 August 2021, Ms Fleming of Beacon sent an email to Mr Skry attaching the recording of Ms Danniels’ conversation with Williams.

195    Following internal Beacon queries about the confirmation from the above recording, on 25 August 2021, Ms Raza called Mr Williams and made a recording of only part of it. In that conversation, Ms Raza stated that the upcoming delivery would be the last order to close off Mr Williams’ account, of 100 litres of degreaser and 150 litres of truck wash.

196    On 9 September 2021, Beacon caused the degreaser and truck wash to be delivered to IGR & DJ Williams.

197    On 23 September 2021, Czarina of Beacon sent Mr Williams an invoice dated 18 August 2021 in an amount of $4,730.

198    On or about 29 September 2021 and 7 October 2021, representatives of Beacon had telephone conversations with Mr Williams in which Mr Williams stated that he did not order the products, had not received them and would not pay for them.

199    On 27 October 2021, Ms Raza of Beacon, using the pseudonym “Khloe”, sent an email to Mr Williams attaching the first partial recording from the conversation on 17 August 2021. On the same day, she sent a further email to Mr Williams stating that the products had been delivered to TOOG Produce and asking whether he received the recorded order confirmation.

200    On or about 6 January 2022, IGR & DJ Williams returned the products delivered in September 2021 to Beacon.

201    I am satisfied that by its representatives’ conduct in (a) issuing to IGR & DJ Williams invoices in or about March or April 2021, and on or about 30 June 2021 and 23 September 2021, (b) sending an email requesting confirmation of a purported existing order on 28 May 2021, (c) stating in telephone conversations with Mr Williams on 17 and 25 August 2021 that there was an existing order for goods, and (d) sending the partial recording of the 17 August 2021 call to Mr Williams on 27 August 2021, which referred to there being an order for goods to be delivered, Beacon represented, on each occasion, that IGR & DJ Williams had agreed to acquire goods from Beacon in the period from March to September 2021 and thereby made Agreement to Acquire Representations to IGR & DJ Williams.

202    The Agreement to Acquire Representations made by Beacon to IGR & DJ Williams were false because they were made in circumstances where IGR & DJ Williams had not agreed to acquire the goods from Beacon in the relevant period.

203    I am also satisfied that by its representatives’ conduct in (a) sending an email to Mr Williams on 28 May 2021 stating that the account would be closed after a final delivery, (b) stating in telephone conversations with Mr Williams on 17 and 25 August 2021 that there was a last order to close off the account or bring it up to date, and (c) sending the partial recording of the 17 August 2021 call to Mr Williams which referred to there being a final order before the account could be closed on 27 August 2021, as set out above, Beacon represented, on each occasion, that IGR & DJ Williams had agreed to acquire goods from Beacon on an ongoing basis and thereby made Ongoing Agreement Representations to IGR & DJ Williams.

204    The Ongoing Agreement Representations made by Beacon to IGR & DJ Williams were false because they were made in circumstances where IGR & DJ Williams had not agreed to acquire the goods from Beacon.

E.8.    LF & JM Cleggett

205    Mr Lyndon Cleggett and Joyce Maie Cleggett were partners in a partnership named “LF & JM Cleggett” which operated a dairy farm business located at Glencoe, South Australia (LF & JM Cleggett). The relevant conduct with respect to this consumer was engaged in by both Beacon and Zandox, over a collective period of nearly two years.

206    In or about late August 2021, a representative of Beacon telephoned the LF & JM Cleggett main business line and spoke to Ms Cleggett. The representative told Ms Cleggett that LF & JM Cleggett had agreed to acquire further cartridges as part of its initial order (from earlier in 2021). Part of the conversation was recorded by a Beacon representative in which (a) the representative confirmed LF & JM Cleggett’s delivery details, (b) Ms Cleggett told the representative that she did not realise that she had ordered 8 black and 8 colour cartridges (noting that the previous order was four of each), and (c) the representative responded that Beacon had given LF & JM Cleggett a discounted price as they had broken down a bulk pack.

207    At no time prior to or in the conversation referred to at [206] above had Ms Cleggett or anyone else on behalf of LF & JM Cleggett ordered the ink cartridges referred to by the representative of Beacon.

208    In or about early September 2021, Beacon delivered eight black Canon ink cartridges and eight tri-colour ink cartridges to LF & JM Cleggett.

209    In or about September 2021, Beacon sent an invoice dated 31 August 2021 to LF & JM Cleggett for the cartridges delivered that month in an amount of $676.50.

210    On or about 27 September 2021, LF & JM Cleggett paid the invoice for the cartridges.

211    In or about November 2021, a representative from Beacon telephoned LF & JM Cleggett and spoke with Ms Cleggett. The representative told Ms Cleggett that LF & JM Cleggett was due to receive a delivery of ink cartridges from Beacon. Ms Cleggett said she wanted no further cartridges. The Beacon representative responded that Ms Cleggett had agreed to a larger order that had been broken down into instalments and it would be LF & JM Cleggett’s final order. Ms Cleggett agreed to accept the delivery because she was told by the representative that it could not be cancelled and it was the last delivery.

212    In or about late November 2021, LF & JM Cleggett received the delivery of eight black Canon ink cartridges and eight tri-colour ink cartridges. About the same time, Beacon issued an invoice dated 10 November 2021 to LF & JM Cleggett for the Canon ink cartridges delivered in November in an amount of $676.50. On 29 November 2021, Ms Cleggett paid the invoice.

213    On 14 September 2022, Ms Cleggett emailed “Khloe” from Beacon, asking to exchange some of the cartridges delivered by Beacon due to the change in LF & JM Cleggett’s printer. At about the same time, Ms Danniels of Beacon telephoned Ms Cleggett. Ms Danniels stated that Beacon had another order of printer cartridges for delivery to LF & JM Cleggett. Ms Cleggett asked Ms Danniels to cancel the delivery because she did not require any more cartridges, and they were more expensive than other cartridges. Ms Cleggett also told Ms Danniels that when she last spoke to someone at Beacon in November 2021, she was told that she did not need to buy any more cartridges.

214    Ms Cleggett followed up her telephone call with Ms Danniels with an email to “Khloe” later that day, stating that she was previously told that her November 2021 order was the final order and that she did not want any more ink cartridges.

215    In or about late September or early October 2022, Beacon caused to be delivered to LF & JM Cleggett ten cartridges of black ink toner and ten cartridges of tri-colour ink toners together with an invoice dated 28 September 2022 in an amount of $1,320. Ms Cleggett did not pay that invoice and returned the delivery.

216    I am satisfied that by its representatives’ conduct in (a) stating in a telephone conversation with Ms Cleggett in or about late August 2021 that she had previously agreed to order eight black and eight tri-colour ink cartridges, (b) issuing an invoice for the cartridges referred to above in about September 2021, (c) stating that LF & JM Cleggett had an existing order for cartridges in or about late November 2021 and on 14 September 2022, and (d) issuing to LF & JM Cleggett an invoice for cartridges delivered in November 2021, Beacon represented, on each occasion, that LF & JM Cleggett had agreed to acquire cartridges from Beacon and thereby made Agreement to Acquire Representations to LF & JM Cleggett.

217    The Agreement to Acquire Representations made by Beacon to LF & JM Cleggett were false because they were made in circumstances where LF & JM Cleggett had not agreed to acquire the cartridges from Beacon.

218    I am satisfied that by its representatives’ conduct in stating in telephone conversations with Ms Cleggett in or about late August 2021, November 2021 and September 2022 that LF & JM Cleggett had agreed to multiple orders or that this particular order was the final order as set out above, Beacon represented, on each occasion, that LF & JM Cleggett had agreed to acquire cartridges from Beacon on an ongoing basis and thereby made Ongoing Agreement Representations to LF & JM Cleggett.

219    The Ongoing Agreement Representations made by Beacon to LF & JM Cleggett were false because they were made in circumstances where LF & JM Cleggett had not agreed to acquire the cartridges from Beacon on an ongoing basis.

220    On 8 February 2023, Ms Raza of Zandox, using the pseudonym “Kim”, telephoned Ms Cleggett. Ms Raza stated that Zandox was formerly Beacon and that a further order of printer cartridges was due to be delivered to LF & JM Cleggett. Ms Cleggett stated that previous orders were faulty and that she had not ordered any more printer cartridges and had written to Beacon asking that all future orders be cancelled. Ms Raza stated that (a) this was the final order, (b) the order could not be cancelled, and (c) she would record the next part of the telephone conversation. Ms Raza then made a recording of the remainder of the conversation only (in which she confirmed delivery details).

221    I am satisfied that by its representatives’ conduct described in the paragraph above, Zandox represented that LF & JM Cleggett (a) had agreed to acquire further printer cartridges from Beacon and thereby made an Agreement to Acquire Representation, (b) had agreed to acquire printer cartridges from Beacon on an ongoing basis and thereby made Ongoing Agreement Representation, and (c) did not have a right to terminate an agreement for an ongoing supply of printer cartridges with Beacon and thereby made a Termination Rights Representation.

222    Each of the Agreement to Acquire Representation, the Ongoing Agreement Representation and the Termination Rights Representation made by Zandox to LF & JM Cleggett was false because they were made in circumstances where LF & JM Cleggett had not agreed to acquire any cartridges from Zandox (or any further goods from Beacon).

223    On 8 February 2023, Ms Fleming emailed Mr Skry attaching the business cards pertaining to LF & JM Cleggett which included a reference to the conversation which occurred on 7 October 2022, the words “NO MORE!” written next to 26 October 2022 and the credit applied with respect to the invoice from Beacon dated 28 September 2022 and the recording from 8 February 2023.

224    In or about late February or early March 2023, Zandox delivered cartridges to LF & JM Cleggett. In those circumstances, Mr Skry approved or alternatively failed to prevent that delivery from occurring or the sale proceeding. The invoice dated 14 February 2023 associated with this delivery was paid on 14 March 2023.

225    On 6 March 2023, Ms Fleming sent an email which was copied to Mr Skry attaching “repeats” monthly reports for February, which included the invoice dated 14 February 2023 for the cartridges delivered to LF & JM Cleggett discussed at [224] above.

E.9.    JV Hospital

226    Following its engagement in the First System against the JV Hospital earlier in 2022 as set out above at [32] to [42], Beacon engaged in the Second System with respect to the JV Hospital in late 2022, as follows.

227    Between August to October 2022, Ms Hammond of Beacon attempted to speak to Ms Perrin of the JV Hospital, who declined to take the calls.

228    On 23 November 2022, Ms Hammond, using the pseudonym “Lucy”, emailed Mabel Mon of the JV Hospital regarding a further delivery of 25 litres of sanitiser requesting confirmation of the details and to reply “YES” to confirm the order. On 25 November 2022, Ms Mon replied “YES” by email.

229    On 28 November 2022, Ms Hammond called the JV Hospital and left a message for Ms Perrin of JV Hospital advising that a further 25 litres of sanitiser that Ms Perrin had ordered was due to be delivered.

230    In response to that message, Ms Perrin sent an email that same morning to Ms Hammond asking when she ordered the sanitiser and asking Ms Hammond to cancel the order. Later that day, (a) Ms Hammond emailed Ms Perrin asking her to reply “YES” to confirm the order for 25 litres of sanitiser, (b) Ms Hammond telephoned Ms Perrin, during which Ms Perrin said she never agreed to a second order of the sanitiser and Ms Hammond said that the order was for a minimum of two sanitisers, with one to be sent a couple of months after the original, and (c) Ms Perrin emailed Ms Hammond stating that she had listened to the recording of the conversation on 23 June 2022 (which had been emailed to her on 17 August 2022, as set out at [37] above) and stated that she did not believe there was any discussion by telephone or email about a minimum of two sanitisers needing to be purchased.

231    On 30 November 2022, Ms Hammond telephoned Ms Perrin. Ms Perrin asked Ms Hammond why she was emailing about a further delivery of sanitiser when Ms Perrin had not agreed to it. Ms Hammond stated that the deal was for a minimum of two orders for sanitisers. Ms Perrin stated that she had not even made the first order, had not used the product, and did not want the second order. Ms Hammond again stated words to the effect that the “special price” was for two 25-litre tubs as a minimum order.

232    After being notified of the above communications with Beacon, and an unsuccessful attempt to contact “Lucy”, on or about 1 December 2022, Dr Louise Nicholls of the JV Hospital telephoned another Beacon representative. Dr Nicholls stated that the JV Hospital never had a contract with Beacon for two drums of sanitiser and there had never been a discussion between Beacon and Ms Perrin about a second drum, (b) Dr Nicholls stated that the JV Hospital wanted nothing to do with Beacon and would not accept a second delivery, and (c) the Beacon representative stated that she knew nothing about the order, did not have the authority to cancel it, and that Dr Nicholls would need to speak to Lucy about it but would ask Lucy to contact her.

233    The JV Hospital received no further communication from Beacon after the 1 December 2022 conversation.

234    I am satisfied that by its representatives’ conduct in (a) sending the email to Ms Mon on 23 November 2022 to confirm the second delivery of sanitiser, (b) stating to Ms Perrin in the telephone conversation on 28 November 2022 that the sanitiser order was for a minimum of two orders for sanitisers, and (c) stating to Ms Perrin in the telephone conversation on 30 November 2022 that the deal was for a minimum of two orders for sanitisers, Beacon represented, on each occasion, that the JV Hospital had agreed to acquire the second drum of sanitiser and thereby made Agreement to Acquire Representations to the JV Hospital and that the JV Hospital had agreed to acquire that sanitisers from Beacon on an ongoing basis and thereby made Ongoing Agreement Representations to the JV Hospital.

235    The Agreement to Acquire Representations and the Ongoing Agreement Representations made by Beacon to the JV Hospital were false because they were made in circumstances where JV Hospital had not agreed to acquire the second drum of sanitiser from beacon, nor was there any agreement between the JV Hospital and Beacon to acquire goods on an ongoing basis.

E.10.    R W Shephard & S L Shephard trading as Hurtle Grove Pastoral Co

236    Mr Shephard and Sandra Shephard operated a farming business in Walloway, South Australia, trading under the name “Hurtle Grove Pastoral Co” (Hurtle Grove).

237    In the period between June 2016 and September 2016, Hurtle Grove ordered and received printer cartridges from a company known to it as “Tridex”. Tridex Imaging Pty Ltd was a company which sold toner cartridges and whose business was transferred to Radford in or about June 2017. Tridex was a company associated with Mr Skry. Ms Shephard was told at some point that a business described as Radford had taken over Tridex and would supply Hurtle Grove with printer cartridges from that point on.

238    Between February 2017 and August 2019, Ms Shephard received various telephone calls from Radford representatives prior to receiving further deliveries of cartridges. The Radford representatives would say a further delivery of printer cartridges was ready for delivery. Ms Shephard would ask for the delivery (and purported future deliveries) to be cancelled because Hurtle Grove had excess supply. The Radford representatives would state that the delivery could not be cancelled because Hurtle Grove was receiving the cartridges at a special price but would not tell Ms Shephard the number of orders she had purportedly agreed to accept.

239    Following each of these telephone calls, Radford caused printer cartridges to be delivered to Hurtle Grove and issued invoices to Hurtle Grove for them.

240    In or about August 2019, Ms Shephard informed Radford that she wished to cancel any future deliveries of printer cartridges because Hurtle Grove’s printer had stopped working and had been replaced by one that used different cartridges.

241    Between December 2019 and April 2021, Beacon, having taken over Radford’s printer business, delivered printer cartridges to Hurtle Grove on the following occasions and invoiced in the following amounts, which invoices were subsequently paid by Hurtle Grove:

(a)    18 December 2019 – $4,953.30;

(b)    12 February 2020 – $5,722.20;

(c)    20 May 2020 – $6,600.00;

(d)    19 August 2020 – $6,600.00;

(e)    1 October 2020 – $6,711.10;

(f)    6 January 2021 – $8,140.00; and

(g)    14 April 2021 – $8,140.00.

242    Throughout this period, Ms Shephard contacted Beacon on multiple occasions by telephone and received calls from Beacon prior to being sent a further delivery from Beacon. Ms Shephard stated in those conversations that she wanted to return the cartridges that had been delivered and cancel any future deliveries. The Beacon representatives stated that Hurtle Grove could not return the cartridges because Ms Shephard had agreed to an ongoing supply of printer cartridges based on a minimum order quantity, and only one more delivery needed to be accepted to fulfil the contract.

243    On 20 May 2020, Ms Raza of Beacon, using the pseudonym “Khloe”, sent an email to Ms Shephard requesting that she replies with the word “confirmed” so that a further order could be marked as approved, and sent to dispatch for delivery in 1-2 weeks, and that this would bring her order up to date. Ms Shephard responded by stating that she confirmed the order but requested that the Hurtle Grove account be deleted after this delivery and stated that Hurtle Grove did not need any more printer cartridges.

244    On 1 October 2020 and 14 December 2020, Ms Shephard received text messages from “Jo” of Beacon confirming upcoming orders for delivery and requesting that she replies “yes” on each occasion.

245    On or about 1 October 2020 and 14 December 2020, Ms Shephard telephoned Beacon upon receiving each of the text messages. Ms Shepherd asked a Beacon representative she spoke with to cancel the upcoming delivery to Hurtle Grove. The Beacon representative responded that the delivery formed part of Hurtle Grove’s contract with Beacon, she could not cancel the delivery, the delivery was the final delivery, and the account would then be closed.

246    Following those conversations, Ms Shephard replied “yes” to the text messages she received from “Jo” of Beacon on the understanding that the upcoming delivery would be the final delivery from Beacon and could not be cancelled.

247    In or about June 2021, Beacon ceased delivering cartridges to Hurtle Grove after it had received a letter dated 1 June 2021 from lawyers engaged by Ms Shephard. Beacon facilitated the return of the cartridges that it had delivered to Hurtle Grove, which had been the subject of the invoice dated 14 April 2021.

248    Beacon did not refund any of the other invoices totalling $61,661.60 paid by Hurtle Grove with respect to the goods that Beacon had delivered to Hurtle Grove, or that had earlier been delivered by Radford and Tridex to Hurtle Grove.

249    I am satisfied that by its representatives’ conduct in (a) stating in telephone conversations with Ms Shephard on various occasions after receiving the deliveries referred to above between December 2019 and April 2021 that Hurtle Grove could not return the cartridges delivered to it because they were delivered as part of a contract and/or as part of a minimum order quantity, and that only one more delivery was needed to fulfil the contract, and (b) stating in telephone conversations with Ms Shephard on or about 1 October 2020 and 14 December 2020 that the delivery of cartridges formed part of an existing contract between Hurtle Grove and Beacon, that the delivery could not be cancelled, and that the particular delivery would be the final delivery before the account would be closed, Beacon represented, on each occasion, that Hurtle Grove had agreed to acquire cartridges from Beacon and thereby made Agreement to Acquire Representations to Hurtle Grove and that Hurtle Grove had agreed to acquire cartridges from Beacon on an ongoing basis and thereby made Ongoing Agreement Representations to Hurtle Grove.

250    The Agreement to Acquire Representations and Ongoing Agreement Representations made by Beacon to Hurtle Grove were false because they were made in circumstances where Hurtle Grove had not agreed to acquire cartridges from Beacon, nor was there an agreement between Hurtle Grove and Beacon to acquire cartridges on an ongoing basis.

E.11.    Seaforth Baptist Church

251    The Seaforth Baptist Church occupied premises in Seaforth, New South Wales (Seaforth Baptist).

252    In or about June 2019, Seaforth Baptist placed an order for ink cartridges from Radford, to be delivered in two instalments, following an unsolicited marketing call from a representative of Radford. By October 2019, those deliveries had been made.

253    In early January 2020, a representative of Beacon telephoned Siân Elizabeth Jeffries of Seaforth Baptist. In that conversation, the representative stated that Radford had been taken over and changed its name to Beacon and that the representative was phoning about Seaforth Baptist’s next delivery of printer cartridges. Ms Jeffries stated she had not ordered any printer cartridges and wanted the delivery cancelled. The Beacon representative stated that the delivery was due to go out as part of Seaforth Baptist’s agreement with Radford and could not be cancelled. Ms Jeffries agreed to accept the printer cartridges because she felt she had no option other than to confirm the delivery.

254    On 24 January 2020, Ms Hammond of Beacon, using the pseudonym “Lucy”, emailed Ms Jeffries requesting written confirmation of the order. Ms Jeffries confirmed it.

255    On or about 7 February 2020, a box of ink cartridges was delivered to Seaforth Baptist. The box contained more printer cartridges than Ms Jeffries was expecting based on the Radford’s prior deliveries. Later that day, she emailed Ms Hammond stating that she wanted future orders for printer cartridges cancelled.

256    On 21 February 2020, Seaforth Baptist paid the invoice for the printer cartridges that it received on or about 7 February 2020.

257    In or about September or October 2020, Ms Jeffries received a call from a Beacon representative in relation to an upcoming delivery of printer cartridges. When Ms Jeffries said that she had asked for the deliveries to be cancelled, she was told that she could not cancel the order, this was the final delivery under the contract, and the account would be closed following the delivery. She confirmed the order on the basis that it would be the final delivery.

258    On 2 October 2020, Ms Hammond emailed Ms Jeffries requesting written confirmation of the order. Ms Jeffries confirmed the order and asked for confirmation that this would be the last delivery.

259    On or about 23 October 2020, Beacon delivered the ink cartridges to Seaforth Baptist. That day, Ms Jeffries emailed Ms Hammond asking for confirmation that there would be no further deliveries. Ms Hammond responded by stating she would put a note on the account in relation to further deliveries and issued an invoice.

260    On or about 5 February 2021, a Beacon representative again called Ms Jeffries and stated that they were calling about an upcoming delivery of printer cartridges, in similar terms to the conversation that occurred in January 2020, as set out above. The Beacon representative told Ms Jeffries that there was one more order, it could not be cancelled, and the account would be closed after this delivery. Despite wanting to cancel the order, but on the basis that she was told that it was the final delivery which had not been accounted for when she had previously been told that an upcoming delivery was the last one, Ms Jeffries confirmed the order. The order was also confirmed in writing in which Ms Jeffries told Beacon that no further orders were wanted, and the Beacon representative stated the account would be closed after this delivery.

261    On or about 22 February 2021, the printer cartridges the subject of the 5 February 2021 conversation were delivered. The invoice was issued on 1 March 2021.

262    On 11 February 2022, Ms Jeffries received another call from a Beacon representative – on this occasion, it was Ms Hammond – regarding an upcoming delivery of printer cartridges. Ms Hammond stated that the delivery was part of Seaforth Baptist’s deal with Beacon and could not be cancelled. Ms Jeffries agreed to accept the delivery on the basis that she would then seek confirmation in writing that Seaforth Baptist’s account was closed. The order was also confirmed in writing, and Ms Hammond said the account would be closed following the delivery.

263    In or about mid-February 2022, Beacon delivered the ink cartridges the subject of the 11 February 2022 conversation to Seaforth Baptist. The invoice for those printer cartridges was issued on 25 February 2022 in an amount of $775.50 with a due date of 18 March 2022 (February 2022 invoice).

264    On 29 March 2022, a Beacon representative, using the name “Sue”, sent Ms Jeffries an email requesting payment of the February 2022 invoice which had not been paid at her “earliest convenience”. The invoice was paid on or about 4 April 2022.

265    In or about February and March 2023, a Zandox representative, using the name “Gemma”, telephoned Ms Jeffries and told her that Zandox had taken over Beacon, and a further delivery (the second instalment of a split order) was required to close account. Ms Jeffries felt she had no option but to confirm the delivery, because she could not locate the relevant email correspondence with Beacon acknowledging the closure of the account. The printer cartridges the subject of that conversation were delivered in or about February 2023, and Zandox issued the invoice to Seaforth Baptist on 27 February 2023 in an amount of $775.50 with a due date of 19 March 2023.

266    On 6 March 2023, Seaforth Baptist communicated to Zandox that it wanted to return the printer cartridges (on the basis that the orders were confirmed under false pretences) and would not be paying the most recent invoice. The printer cartridges were returned.

267    I am satisfied that by its representatives’ conduct in stating to Ms Jeffries that there was an order for upcoming delivery from Beacon to Seaforth Baptist in January 2020, September or October 2020, February 2021, February 2022 and requesting confirmation of those orders, issuing invoices in respect of them and pursuing the February 2022 invoice for payment on 29 March 2022 as set out above, Beacon represented, on each occasion, that Seaforth Baptist had agreed to acquire the cartridges from Beacon and thereby made Agreement to Acquire Representations to Seaforth Baptist.

268    The Agreement to Acquire Representations made by Beacon to Seaforth Baptist were false because they were made in circumstances where Seaforth Baptist had not agreed to acquire the cartridges from Beacon on those occasions.

269    I am satisfied that by its representatives’ conduct in stating in February 2023 that Seaforth Baptist had agreed to the final order being split and that that delivery was the second half of the final order, Zandox represented that Seaforth Baptist had agreed to acquire cartridges from Beacon and/or Zandox on an ongoing basis and thereby made an Ongoing Agreement Representation to Seaforth Baptist.

270    The Ongoing Agreement Representation made by Zandox to Seaforth Baptist was false because it was made in circumstances where Seaforth Baptist had not agreed to acquire cartridges from Beacon or Zandox after its first order was made in June 2019.

E.12.    Conclusion

271    I am satisfied that the findings that I have made at [97] to [219], [226] to [264], and [267] to [268] above are sufficient to establish that Beacon, by the conduct of their representatives, engaged in the Second System in the period between at least December 2019 and December 2022.

272    I am satisfied that the findings that I have made at [205], [220] to [225], [265] to [266], and [269] to [270] above are sufficient to establish that Zandox, by the conduct of its representatives, engaged in the Second System at least in February and March 2023.

F.    MISLEADING OR DECEPTIVE CONDUCT

F.1.    Legal Principles

273    Section 18 of the ACL provides 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).

274    Section 29 of the ACL relevantly provides as follows:

29 False or misleading representations about goods or services

(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

…

(d) make a false or misleading representation that a particular person has agreed to acquire goods or services; or

…

(m) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3 - 2); …

275    Numerous authorities have recognised that there is no meaningful difference between the words “misleading or deceptive” in s 18 of the ACL and “false or misleading” in s 29 of the ACL: Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186; [2023] HCA 8 at [84] (Keifel CJ, Gageler, Gordon, Edelman and Gleeson JJ). Consequently, the prohibitions in these provisions are of similar nature: Australian Competition and Consumer Commission (ACCC) v Employsure Pty Ltd [2021] FCAFC 142; (2021) 392 ALR 205 at [89] (Rares, Murphy and Abraham JJ). However, the inclusion of the expression “likely to” mislead or deceive in s 18 means that a contravention of this provision may be established if there is a real or not remote chance or possibility that a person exposed to the impugned conduct would be misled, while s 29 requires the applicant to prove that the representation made by the respondent was actually false or misleading: Employsure at [88] (Rares, Murphy and Abraham JJ).

276    Whether the impugned conduct pursuant to s 18 or the alleged representation pursuant to s 29 answers the description of false, misleading or deceptive depends on whether it has a “tendency to lead into error” (Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, [2013] HCA 54 at [39] (French CJ, Crennan, Bell and Keane JJ)), which means “to form an erroneous assumption or conclusion about some fact or matter”: Employsure, [92] (Rares, Murphy and Abraham JJ). This is an objective question of fact, to be determined by considering the whole of the impugned conduct or the alleged representation in the circumstances in which it took place: Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 at [109] (McHugh J); Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at [102] (Gummow, Hayne, Heydon and Kiefel JJ); ACCC v Nonchalant Pty Ltd (in liq) [2013] FCA 605 at [10] (Gordon J).

277    Whether conduct or representation has a tendency to lead into error is tested against a hypothetical ordinary and reasonable member of the company’s target audience, with objectively attributable characteristics and knowledge of that class: Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45, [2000] HCA 12 at [102]-[103] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Self Care at [83] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ).

278    Relevantly, in assessing whether pleaded representations offend s 29 and s 18 of the ACL, it is necessary to consider whether first, the pleaded representations are conveyed by the particular events complained of, and second whether the representations conveyed were false, misleading or deceptive or likely to mislead or deceive: Australian Competition and Consumer Commission v Telstra Corporation Ltd (2007) 244 ALR 470; [2007] FCA 1904 at [14]-[15] (Gordon J); SPEL Environmental Pty Ltd v IES Stormwater Pty Ltd [2022] FCA 891 at [34]-[35] (Downes J).

F.2.    Contraventions by Beacon

279    I am satisfied by reason of the findings that I have made above, that Beacon engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and made false or misleading representations in contravention of s 29(1)(d) of the ACL by making Agreement to Acquire Representations to the following consumers:

(a)    Bridgestone Armadale (at [30] – [31] above);

(b)    JV Hospital (at [39] – [40] above);

(c)    Peninsula Palms (at [52] – [53] above);

(d)    Forbes (at [73] – [74] above);

(e)    Discovery Centre (at [91] – [93] above);

(f)    Dale T Sullivan (at [108] – [109] above);

(g)    Bounce Rehab (at [124] – [125] above);

(h)    Mr Keller (at [148] – [149] above);

(i)    MB Golf Club (at [168] – [169] above);

(j)    Dan Mooney Transport (at [181] – [183] above);

(k)    IGR & DJ Williams (at [201] – [202] above);

(l)    LF & JM Cleggett (at [216] – [217] above);

(m)    Hurtle Grove (at [249] – [250] above); and

(n)    Seaforth Baptist (at [267] – [268] above).

280    I am satisfied by reason of the findings that I have made at [152] to [153] above, that Beacon engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and made false or misleading representations concerning the exclusion of a right in contravention of s 29(1)(m) of the ACL by making Termination Rights Representation to Mr Keller.

281    I am satisfied by reason of the findings that I have made above, that Beacon engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and made false or misleading representations concerning the exclusion of a right in contravention of s 29(1)(m) of the ACL by making Return Rights Representations to the following consumers:

(a)    JV Hospital (at [41] – [42] above);

(b)    Peninsula Palms (at [54] – [55] above); and

(c)    Bounce Rehab (at [126] – [127] above).

282     I am satisfied by reason of the findings that I have made above, that Beacon engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and made false or misleading representations that a person had agreed to acquire goods in contravention of s 29(1)(d) of the ACL by making Ongoing Agreement Representations to the following consumers:

(a)    Mr Keller (at [150] to [151] above);

(b)    MB Golf Club (at [169] to [170] above);

(c)    Dan Mooney Transport (at [182] to [183] above);

(d)    IGR & DJ Williams (at [203] to [204] above);

(e)    LF & JM Cleggett (at [218] to [219] above);

(f)    JV Hospital (at [234] to [235] above); and

(g)    Hurtle Grove (at [249] to [250] above).

F.3.    Contraventions by Zandox

283    I am satisfied by reason of the findings that I have made above, that Zandox engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and made false or misleading representations in contravention of s 29(1)(d) of the ACL by making Agreement to Acquire Representations to the following consumers:

(a)    GRPB (at [63] – [64] above);

(b)    Paragalli Haulage (at [83] – [84] above);

(c)    Discovery Centre (at [92] – [93] above); and

(d)    LF & JM Cleggett (at [221] – [222] above).

284    I am satisfied by reason of the findings that I have made at [221] to [222] above, that Zandox engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and made false or misleading representations concerning the exclusion of a right in contravention of s 29(1)(m) of the ACL by making the Termination Rights Representations to LF & JM Cleggett.

285    I am satisfied by reason of the findings that I have made above, that Zandox engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and made false or misleading representations that a person had agreed to acquire goods in contravention of s 29(1)(d) of the ACL by making the Ongoing Agreement Representations to the following consumers:

(a)    LF & JM Cleggett (at [221] – [222] above); and

(b)    Seaforth Baptist (at [269] – [270] above).

G.    UNCONSCIONABLE CONDUCT

G.1.    Legal Principles

286    Section 21 of the ACL relevantly provides as follows:

21 Unconscionable conduct in connection with goods or services

(1) A person must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a person; or

(b) the acquisition or possible acquisition of goods or services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

…

(3) For the purpose of determining whether a person has contravened subsection (1):

(a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

(b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

(4) It is the intention of the Parliament that:

(a) this section is not limited by the unwritten law relating to unconscionable conduct; and

(b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

(c) in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of:

(i) the terms of the contract; and

(ii) the manner in which and the extent to which the contract is carried out;

and is not limited to consideration of the circumstances relating to formation of the contract.

287    Section 22(1)(a)-(l) of the ACL sets out the matters to which the Court must have regard in determining whether a person has contravened s 21 of the ACL, if and to the extent that they apply in the circumstances: Productivity Partners Pty Ltd (t/as Captain Cook College) v Australian Competition and Consumer Commission (ACCC) (2024) 281 CLR 338; [2024] HCA 27 at [99] (Gordon J), applying observations of Gordon J in Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1; [2022] HCA 6 at [57] in relation to the analogously worded s 12CC(1) of the Australian Securities And Investments Commission Act 2001 (Cth). While these matters are explicitly non-exhaustive, a finding that the circumstances surrounding the alleged conduct do not involve a breach of one of the standards implicit in s 22(1) of the ACL may tend to suggest that the conduct is not unconscionable: Productivity Partners at [335] (Gleeson J).

288    The question of whether conduct at hand is unconscionable for the purposes of s 21 of the ACL calls for a precise examination of the particular facts. It involves an evaluative judgment, which is not to be arrived at by the “mere balancing” of the factors in s 22(1) and is not to be approached mechanistically by way “of deductive reasoning predicated upon the presence or absence of fixed elements or fixed rules”: Productivity Partners at [105] (Gordon J).

289    “Unconscionable” means something not done in good conscience: Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 at [41] (Allsop CJ, Jacobson and Gordon JJ). The conduct would answer the description of “unconscionable” for the purposes of s 21 of the ACL if it “is so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience”: Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 at [92] (Gageler J); Productivity Partners at [60] (Gageler CJ and Jagot J).

290    While the statutory concept of unconscionable conduct is expressly not confined to that developed by the unwritten law (Kobelt at [83], [89] (Gageler J); Paciocco v ANZ Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50 at [283] (Allsop CJ)), and is indeed “more broad-ranging than the equitable principles” (Productivity Partners at [60] (Gageler CJ and Jagot J), [97] (Gordon J)), values and norms developed by the unwritten law “have a significant part to play in informing the statutory notion of conscience”: Australian Competition and Consumer Commission (ACCC) v Jayco Corp Pty Ltd [2020] FCA 1672 at [672] (Wheelahan J). In that sense, while a finding of “moral obloquy” or “some form of moral turpitude” may not be necessary to establish unconscionable conduct under s 21 of the ACL (Kobelt at [60] (Kiefel CJ and Bell J); Australian Competition and Consumer Commission v Medibank Private Ltd (2018) 267 FCR 544; [2018] FCAFC 235 at [241] (Beach J)), these concepts remain to be “an important measure of unconscionable conduct”: Productivity Partners at [302] (Steward J).

291    Section 21 of the ACL does not require there to be some form of pre-existing disability, vulnerability or disadvantage which was exploited by another: Australian Competition and Consumer Commission (ACCC) v Mazda Australia Pty Ltd (2021) 158 ACSR 31, [2021] FCA 1493 at [96] (O’Callaghan J); Ali v Australian Competition and Consumer Commission (2021) 153 ACSR 130; [2021] FCAFC 109 (Ali v ACCC) at [181] (Allsop CJ, Besanko and Perram JJ).

292    A “systematic dishonest system or pattern of conduct is well able to be characterised as unconscionable”. As Allsop CJ, Besanko and Perram JJ stated in Ali v ACCC at [282], “it is difficult to see what more is required to offend a business conscience”. When assessing such conduct, the focus is less on a particular transaction and more on an abstraction or a generalisation as to method or structure of the contravener’s activities: Productivity Partners, [106] (Gordon J). The concept of systemic unconscionability in s 21(4)(b) of the ACL invokes a de-individualised mode of analysis, such that the factors set out in s 22 of the ACL provide a framework for the values that lie behind the notion of conscience identified in s 21 and not a mandatory set of factors to be applied in every case: Productivity Partners at [107] (Gordon J). A “system of conduct” connotes “an internal method of working”, which is objectively designed to achieve certain ends and operates at a level of policy or a combination of practice and policy: Productivity Partners at [108] (Gordon J). In determining whether a system of conduct is unconscionable for the purposes of s 21, the Court needs to identify, assess and characterise the system, by reference to the totality of the circumstances, both internal and external to the corporation: Productivity Partners at [110] (Gordon J).

293    It is well established that a person is “directly or indirectly, knowingly concerned in, or party to, the contravention” as an accessory only if the person has knowledge of the essential facts constituting the contravention, but the person need not know that those elements could or would be characterised as a contravention: Productivity Partners at [12] and [82] (Gageler CJ and Jagot J), [146], [149], [154] (Gordon J), (Steward J agreeing at [308]), [266] (Edelman J), and [339], [351] – [352], [364] – [365] (Beech-Jones J) (Gleeson J agreeing at [311]); Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53; [2003] HCA 75 at [48] (Gummow, Hayne, and Heydon JJ).

294    It is sufficient if there is a practical connection between that person’s act or omission and the contravention: Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588; [2002] FCA 61 at [34] (Kenny J); Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (2015) 235 FCR 181; [2015] FCA 342 at [407] and [410] (White J). Typically, that means that the person must have intentionally participated, assented to or became associated with the conduct that amounts to the primary contravention: ActiveSuper, [407] (White J); Productivity Partners, [146] (Gordon J). An accessory does not have to have appreciated that the conduct was unlawful: Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (No 2) (1999) 95 FCR 302; [1999] FCA 1161 at [186] (Lindgren J).

G.2.    The unconscionable conduct contentions

295    The ACCC contends, and I am satisfied, that the likely effect and/or effect of the Systems (and the outcome that was either sought to be achieved or the known consequence of the Systems) was to:

(a)    deceive consumers into believing they had ordered goods they had received from the Corporate Respondents when, in fact, the consumers had not ordered the goods;

(b)    deceive consumers into believing that they had no option other than to pay the invoices in respect of the goods that the Corporate Respondents had sent to them;

(c)    influence and pressure consumers to pay for goods that had been delivered but not ordered;

(d)    prevent consumers from understanding their rights to refuse to pay the invoice, refuse further deliveries of goods and seek a refund in respects of the goods;

(e)    cause consumers loss in circumstances where they received goods that they had not ordered and did not need but were required to pay for when the Corporate Respondents issued invoices for the goods and pursued the consumers for payment of them.

296    The ACCC contends, and I am satisfied, that the conduct of each of the Corporate Respondents in carrying out the Systems was unconscionable, in all the circumstances, within the meaning of s 21 of the ACL because the conduct included the following matters set out in s 22 of the ACL:

(a)    the use of unfair tactics whereby the Corporate Respondents used deception in their dealings with consumers by reason of the representations made by them to representatives of the consumers as pleaded above;

(b)    the exertion of undue influence and pressure on representatives of consumers whereby the Corporate Respondents repeatedly asserted a right of, and, in some cases, a demand for, payment in respect of orders that the consumers had not made;

(c)    the refusal for requests for returns and refunds in circumstances where those practices were not reasonably necessary for the protection of any legitimate interest of the Corporate Respondents;

(d)    the unreasonable failure by the Corporate Respondents to disclose to consumers the fact that they had not ordered the goods, and had a right to return the goods and receive a refund for the goods in those circumstances;

(e)    a failure to protect consumers from risks created by the implementation of the First System and Second System, which each of the Corporate Respondents were aware of and benefitted from, being the risks of loss to consumers in paying for goods that were not ordered and not wanted;

(f)    the exercise of bad faith on the part of the Corporate Respondents in that the conduct was engaged in in order to secure further sales for the Corporate Respondents using dishonest means.

G.3.    Unconscionable conduct of the Corporate Respondents

297    I am satisfied that the conduct of the Corporate Respondents summarised at [295] to [296], and set out in detail at [25] to [272], above with respect to the First System and the Second System was so contrary to societal norms of acceptable commercial behaviour, that it warranted “condemnation as offensive to conscience” (Kobelt at [104] (Gageler J)), and that it could fairly be characterised as conduct that involved moral obloquy or some form of moral turpitude. I readily infer that the conduct was engaged in for the purpose of deceiving consumers into believing that they had ordered goods, that they were required to pay invoices sent to them for goods that they had not ordered and to persuade them that they had no alternative but to pay those invoices, rather than return goods sent to them and receive appropriate refunds.

298    The conduct of the Corporate Respondents went well beyond what might euphemistically be characterised as “aggressive sales tactics”. It was conduct that was fundamentally dishonest. It was engaged in systematically and cynically on numerous occasions by representatives of the Corporate Respondents, using pseudonyms to disguise their identity, with the knowledge, acquiescence and participation of Mr Skry – the person with the overall responsibility for the management and operation of the businesses of the Corporate Respondents.

299    The recording of extracts of conversations with consumers for the confected reason of confirming delivery addresses and then seeking to rely on those extracts to persuade vulnerable consumers that they had previously placed orders for goods with the Corporate Respondents was particularly egregious conduct.

G.4.    Involvement of Mr Skry in unconscionable conduct

300    The ACCC contends that Mr Skry’s knowledge of each of the elements of, and his involvement in, the First System is to be inferred from (a) his role and responsibilities in respect of each of the Corporate Respondents, (b) his involvement in, and knowledge of, a similar sales system used in a previous company he had managed, Globex Systems Pty Ltd, (c) the conduct of employees or agents of the Corporate Respondents bringing to his attention disputed sales and invoices, (d) his conduct in approving sales or failing to cancel disputed sales and invoices and approving or declining to approve refunds, and (e) complaints brought to his attention from consumers, in addition to the consumers relied upon by the ACCC as examples to demonstrate the existence of the First System.

301    Similarly, the ACCC contends that Mr Skry’s knowledge of each of the elements of, and his involvement in, the Second System is to be inferred from (a) his role and responsibilities in respect of each of the Corporate Respondents, (b) his conduct in approving sales or failing to prevent sales brought to his attention and approving or declining to approve refunds, (c) his conduct in reviewing complaints from consumers, (d) his conduct in speaking to consumers about the practices of the Corporate Respondents, and (e) complaints brought to his attention from consumers, in addition to the consumers relied upon by the ACCC as examples to demonstrate the existence of the Second System.

302    I am satisfied for the following reasons that Mr Skry knew the essential elements of each of the Systems and that he intentionally participated, assented to and became associated with the conduct giving rise to the Systems. At all times he was in a position to control or prevent that conduct. Mr Skry was a director of Beacon and the person with the overall responsibility for the management and operation of the businesses of the Corporate Respondents. He permitted the impugned conduct to continue and actively participated in that conduct by the instructions he gave to representatives of the Corporate Respondents or by failing to prevent disputed sales brought to his attention. I make those findings more readily, given Mr Skry’s decision not to give any evidence in the proceeding.

303    I have made those findings, however, independently of the ACCC’s submissions with respect to Mr Skry’s alleged knowledge and involvement in a similar system used by Globex. Mr Skry had been a Director of Globex and its Sales Director at the time that Lander J made orders by consent on 10 January 2005 in SAD274/2004, granting an interim injunction restraining Globex from engaging in similar sales tactics to the sales tactics subsequently the subject of the First System and restraining Mr Skry, and his brother David Skry, from being involved in any such conduct of Globex. I consider that the extent of Mr Skry’s knowledge of, and involvement in, the use of a similar sales system by Globex is relevant to relief, but I am not persuaded that it is of any material assistance in determining whether Mr Skry was directly or indirectly, knowingly concerned in or a party to and, thereby, relevantly involved within the meaning of s 2 of the ACL in, each of the contraventions by the Corporate Respondents of s 21 of the ACL.

304    The most telling evidence of Mr Skry’s knowledge of, and participation in, the conduct constituting the Systems were the admissions and evidence that Mr Skry gave in the s 155 examination. I have set out extracts from that examination in some detail below to highlight the extent to which Mr Skry made admissions of his knowledge of the elements of the Systems and his recognition of the inherently misleading and dishonest nature of them.

305    The following extract from his s 155 examination is particularly illuminating:

MR ARNOTT: Yes. One of the sales tactics which Beacon Products' staff used, to your knowledge, was to tell customers that they had to make a final order, or a last order, in order to close off their account?

MR SKRY: Yes, it looks like it.

MR ARNOTT: And that was a sales practice which you were aware was used within Beacon Products?

MR SKRY: Yes.

MR ARNOTT: And it was done in order to close the deal with the customer?

MR SKRY: Get more sales, yes.

MR ARNOTT: And it was false?

MR SKRY: It was a sales tactic that was used, yes.

MR ARNOTT: And it was false.

MR SKRY: Yes.

MR ARNOTT: It involved lying to the customer?

MR SKRY: (indistinct)

MR ARNOTT: I'm sorry, Mr Skry?

MR SKRY: Yes. That obviously is yes.

MR ARNOTT: Misleading them into thinking they had to take a product from Beacon Products when they didn't?

MR SKRY: It looks like that's what was happening.

MR ARNOTT: And that was done by the sales people in order to get their 10 per cent commission, which you've referred to?

MR SKRY: Yes. They got 10 per cent commission. No, some got 10, some got less, but they got commission on every sale, yes, correct.

MR ARNOTT: And it was a practice which benefited you as the owner of the company?

MR SKRY: The more sales a company made, the turnover being high, yes, it did.

MR ARNOTT: And so you were content for the salespeople to use these sorts of sales tactics?

MR SKRY: I didn't - when you say this, I wanted confirmation from the customer.

MR ARNOTT: Yes.

MR SKRY: Yeah, look, I mean, it is a funny one. It's over aggressive. It's overzealous sales tactics. I wanted a confirmation from the customer that they were happy taking every order. That's what I wanted.

MR ARNOTT: And were - - -

MR SKRY: Were they using untruths to get an order, like every salesperson, pretty much from every sales company, I think, to a degree? The answer is yes.

MR ARNOTT: And that happened to your knowledge?

MR SKRY: Yes.

306    Mr Skry readily accepted in his s 155 examination that if he had told Ms Fleming “do not put the sale through, it would not have gone through”.

307    Mr Skry’s knowledge of and acceptance of the practice of relying on selective recordings of telephone calls with consumers to persuade them that they had in fact placed disputed orders was readily apparent in the following extract from his s 155 examination:

MR ARNOTT: And so it was the practise of the staff under your control to use the recordings which were made in order to seek to pressure customers into paying invoices. Do you agree?

MR SKRY: Yes, I'm agreeing with that. If they've ordered the goods, yes. If they've got a confirmed - yes, I agree.

MR ARNOTT: And you'd agree with me that, perhaps, that is not a recording that indicates the customer wants the goods?

MR SKRY: No, I won't agree with that. If we're confirming they want the goods, and it's on recording, they want the goods.

MR ARNOTT: I'm sorry, Mr Skry, are you saying - - -

MR SKRY: No. No, obviously - - -

MR ARNOTT: - - - that's recording a customer telling you to send the goods?

MR SKRY: Hang on a minute, hang on a minute. I'm trying to understand this and read it properly. Please, give me some time.

MR ARNOTT: Sure. Take all the time you need.

MR SKRY: "I've listened to the recording, and this is what you have said, 'Just send the bloody thing so I can get -'" it's not a great confirmation, is it? No. It's not a great confirmation.

MR ARNOTT: Would you agree with me, it's indicating that the customer doesn't actually want the goods?

MR SKRY: I will agree that they're not happy about taking them, but they're not particularly happy about it at all.

MR ARNOTT: And one of the ways in which, to your knowledge - I know you've already answered this, but one of the ways that the Beacon Products got over this objection was to falsely tell customers that they needed to make a final order in order to close their account.

MR SKRY: Well, as I said, we've already answered this question.

MR ARNOTT: And that was something which happened to your knowledge.

MR SKRY: I'm aware of certain overaggressive sales tactics, as we've gone over.

MR ARNOTT: Including that specific tactic.

MR SKRY: Yes, I'll agree to that. I was aware of sometimes that happened.

308    Equally illuminating was the following exchange that Mr Skry had with his examiner:

MR ARNOTT: And one of the sales tactics that they used was just continually to send out goods to customers and imply that the customers were required to take them.

MR SKRY: I don't think that the goods were just sent out. The customer would speak to the - the salesperson wouldn't just - or else you don't need sales people. They didn't just send goods and send goods. They would have spoken to the customer first and tried to get the verbal confirmation or the written order.

MR ARNOTT: And when they got that verbal confirmation, what they would do would be to mislead the customer into believing they had to take the goods.

MR SKRY: We have already established that I was aware of these tactics, okay? And I don't know how many times I have to say the same thing.

309    Further, after acknowledging that he was aware of the sales strategy of advising a consumer that an order that had not been placed by the consumer was due for dispatch to “bring your orders up to date”, Mr Skry was then taken to a response from a consumer seeking to cancel such an order and gave the following evidence:

MR ARNOTT: And then you'll see, then, above that the response from Elle, "I wish to cancel this order, please."

MR SKRY: Yes. I see that.

MR ARNOTT: And then the email that we started with on 2687, "I wish to cancel any future orders." So what we see in this email is very concerning behaviour. Do you agree, Mr Skry?

MR SKRY: Possibly, yes.

MR ARNOTT: Because customers are being misled into thinking they have to take orders. Do you agree?

MR SKRY: Yes. Well, they're being aggressively tried to told to take an order, yes.

MR ARNOTT: And this led them to believing that they need to cancel something 5 with Beacon in order to stop receiving any future orders. Do you agree?

MR SKRY: Yes.

MR ARNOTT: And both of those things were false.

MR SKRY: Yes.

MR ARNOTT: To your knowledge.

MR Skry: Yes.

310    In the course of his s 155 examination, Mr Skry was taken to a recording that Ms Fleming had emailed to him of a telephone conversation with a representative of Petcare Extraordinaire. It is convenient to set out the recording in full in order to demonstrate the extent of Mr Skry’s knowledge of the elements of the First System:

JEANETTE: Okay. Louise, so right now we are recording, so today's date is Tuesday, the 8th of November 2022. If you can just state your full name.

LOUISE: Can you please speak up. I can't hear.

JEANETTE: Sorry. Can you please state your full name.

LOUISE: Louise O'Brien.

JEANETTE: Excellent. And the full name of your company is still Petcare Extraordinaire; is that correct?

LOUISE: Yes.

JEANETTE: Excellent. And - sorry - and your address is - what's your best delivery address?

LOUISE: 3845 Mitchell Highway, Guyong.

JEANETTE: Excellent. And obviously you're still the owner of the company?

LOUISE: Yes.

JEANETTE: Excellent. And you have authority to order the cleaning chemicals?

LOUISE: Pardon?

JEANETTE: And you obviously have authority to order the cleaning chemicals?

LOUISE: Yes.

JEANETTE: Excellent.

LOUISE: Was this done verbally before?

JEANETTE: Yes. So what I'll do - sorry about this. I'm just trying to hurry it up because my son's going off. I'm now confirming you have ordered one of the 25 litre drum of the super concentrated Beacon Chemical Supplies sanitiser disinfectant. Is that - sorry, is that right?

LOUISE: Well, I don't know because I don't actually remember saying that I needed to order it, so - - -

JEANETTE: Sorry. So I'm just confirming this for dispatch. So we can confirm that it is a delayed delivery; is that correct?

LOUISE: Sorry?

JEANETTE: We are delaying the delivery; is that correct?

LOUISE: Yes.

JEANETTE: Sorry. I'm just trying to hurry it up because my son's going off. And I put that on a 30 day invoice as well, so that's not payable for 30 days after the goods arrive.

LOUISE: Right.

JEANETTE: Excellent. So I'll just let you know that - can I confirm your email so I can email you for your record, please.

LOUISE: reception@petcare-extraordinaire.com.au

JEANETTE: Excellent. Look, I'll email you that invoice and statement as well. I'll give you a call in about three months and see how you're going, Louise, and I'll have that with you in a week to two weeks, okay - it's 10 days?

LOUISE: What was that? I couldn't hear - - -

JEANETTE: Sorry. I'll have that with you in a week or so.

LOUISE: Right.

JEANETTE: All right. Thank you so much for your order. Bye.

LOUISE: Bye.

311    When challenged about the content of the Petcare Extraordinaire recording, Mr Skry gave the following evidence:

MR ARNOTT: And in that call the customer had said that they don't actually even remember ordering the product, and the Beacon salesperson flipped to indicating that she was just confirming the dispatch?

MR SKRY: It sounded like that, yes.

MR ARNOTT: And that was, in a sense, another example of the - what you describe as overzealous or overaggressive sales tactics. Do you agree?

MR SKRY: I've said that, yes.

MR ARNOTT: All right. And what I've suggested to you is simply utterly misleading conduct.

MR SKRY: Yes.

MR ARNOTT: And you accept that?

MR SKRY: You have said that, yes.

MR ARNOTT: And you accept that?

MR SKRY: I do.

312    Mr Skry’s knowledge and involvement in the impugned conduct the subject of the Systems is also variously established from admissions that he has made in the Defence, and from the content of contemporaneous documents.

313    Mr Skry’s knowledge and involvement in the impugned conduct the subject of the First System is also established by the following matters.

314    First, the forwarding to him of complaints from the following consumers, as referred to above, from Forbes (at [71], Paragalli Haulage (at [81]), the Discovery Centre (at [87]-[88]) and more specifically his failure to take any action to cancel the invoice received by Forbes or to ensure that the consumer was not pursued for payment of the invoice after Ms Fleming emailed him copies of emails from the consumer confirming it had not ordered the goods the subject of the invoice and complained about being scammed.

315    Second, consumer complaints received by Beacon and brought to Mr Skry’s attention from The Palms Motel in Dubbo, the Suffolk Bakery in Suffolk Park, and businesses trading under the names “Petcare Extraordinaire”, Shelley’s Recording and “The Best Drop Tavern”. These were advanced by the ACCC as examples of Beacon’s conduct that comprised one or more of the elements characterising the First System, for the purpose of establishing Mr Skry’s knowledge of, and participation, in the First System but were not relied upon by the ACCC as examples of conduct evidencing the First System, as considered at [25] to [95] above.

316    By way of example, Mr Skry admitted that he knew that (a) a representative of The Palms Motel had complained to Beacon that goods that they had not ordered had been invoiced and delivered to them, (b) the representative had complained that The Palms Motel had twice advised Beacon of the unauthorised delivery of goods, and advised that if those goods were not collected, they would be disposed of, and (c) Beacon had sent an email to The Palms Motel representative attaching a voice recording purporting to constitute a confirmation of the order and stating that Beacon had contacted the Department of Fair Trading, forwarding the voice recording, and stating that if the goods were disposed of, The Palms Motel would have to pay for them.

317    Notwithstanding that knowledge, Mr Skry used the pseudonym “Warren Smith, Managing Director”, to participate in, or otherwise implement, the First System by contacting the representative of The Palms Motel by email (a) on 4 March 2020, insisting that The Palms Motel had ordered the goods (when The Palms Motel had not ordered the goods) and that Beacon had a very clear recording of the staff member ordering the goods, and (b) on 9 March 2020, stating that a call was made to The Palms Motel’s property manager on 23 January 2020 where questions were asked about cleaning chemical requirements, that on 5 February 2020 a sales person from Beacon called the property manager to offer goods for purchase, and an order was placed on that date, and, after that, a further call was made to confirm the order, when in fact, The Palms Motel had not ordered the goods.

318    Mr Skry’s knowledge and involvement in the impugned conduct the subject of the Second System is also established by the following matters.

319    First, the extent to which he was forwarded complaints from the following consumers, as referred to above, from Dale T Sullivan (at [106]), Bounce Rehab (at [119]-[121]), MB Golf Club (at [162]), LF & JM Cleggett (at [223]-[225]), IGR & DJ Williams (at [194]) and Dan Mooney Transport (at [173]).

320    Second, Mr Skry’s implicit approval or failure to cancel the sale to Dale T Sullivan after being sent a copy of a voice recording of an alleged confirmation of order and delivery details for a “final order”.

321    Third, Mr Skry’s directions to Ms Fleming in December 2021 and January 2022 that no refund should be given to Bounce Rehab for goods that they had not ordered and that no goods should be taken back from Bounce Rehab, and subsequently, at some time in the period between February and August 2022, informing a Bounce Rehab representative that a partial refund would be paid on the return of the goods.

322    Fourth, consumer complaints received by Beacon and brought to Mr Skry’s attention from businesses trading under the names “Organise My”, “Rainbow Bay Resort’ and “Geraldton Hydraulics”. These were advanced by the ACCC as examples of Beacon’s conduct that comprised one or more of the elements characterising the Second System, for the purpose of establishing Mr Skry’s knowledge of, and participation, in the Second System but were not relied upon by the ACCC as examples of conduct evidencing the Second System, as considered at [96] to [272] above.

323    By way of example, Mr Skry admitted that that he knew that (a) Ms Raza had told a representative of Organise My that her order from Beacon was due for dispatch to bring Organise My’s orders up to date, when in fact, there was no such order, which Mr Skry accepted was misleading, (b) the representative of Organise My had told Ms Raza that she wanted to cancel the upcoming order, (c) the representative of Organise My had complained to Beacon that she had not heard further from Ms Raza, and (d) the representative of Organise My had informed Beacon that she wanted to cancel further orders from Beacon.

324    Notwithstanding that knowledge, Mr Skry had approved the sale to Organise My, or, alternatively, failed to stop the sale from proceeding or failed to arrange a return or refund, in circumstances where he knew that (a) Organise My did not want the goods the subject of the order, (b) Organise My had not ordered the goods, and (c) there was no ongoing contract. Mr Skry’s approval of the sale or failure to stop it from proceeding is to be inferred from the fact that the order was completed, no refund was provided, and Organise My was then sent a further order which contained goods it did not want.

325    The matters outlined above at [304 ] to [324], establish that Mr Skry was aware of complaints made by consumers of the sales tactics used by representatives of the Corporate Respondents, those complaints were referred to him for consideration, he provided instructions as to how they were to be addressed, including by implicitly rejecting them by not taking any action to cancel orders, he accepted that the sales tactics used by the representatives were misleading to his knowledge, he was aware that the sales tactics were frequently employed by the representatives, and that at all times he was in a practical position to control or prevent the sales tactics being used by the representatives. I more readily make these findings in the unexplained absence of any evidence from Mr Skry, consistently with the principles in Jones v Dunkel and Blatch v Archer (1774) 1 Cowp 63. Mr Skry was not only the third respondent – he was uniquely positioned to explain or otherwise rebut the contentions advanced by the ACCC in this proceeding against him.

H.    DISPOSITION

326    For the foregoing reasons I am satisfied that the Corporate Respondents have contravened s 18, s 21, s 29(1)(d) and s 29(1)(m) of the ACL in substantially the respects contended by the ACCC and that Mr Skry was relevantly involved within the meaning of s 2 of the ACL in the Corporate Respondents contraventions of s 21 of the ACL.

327    The proceeding is to be listed for a case management hearing at 9.30 am on 23 July 2026 for the purpose of making timetabling orders for a hearing on relief, including the making of declarations to give effect to these reasons and to consider the imposition of pecuniary penalties. Particular attention will need to be given to the form of the declarations of contravention to ensure that they reflect the contraventions as found in these reasons and that they capture the nature of the impugned conduct in a manner that is sufficient for the purposes of specific and general deterrence. Further, careful consideration will need to be given to the form of the declarations of contravention of s 21 of the ACL sought against the Corporate Respondents and Mr Skry given that it is not alleged that Mr Skry was relevantly involved within the meaning of s 2 of the ACL in the making of any of the representations the subject of the s 18 contraventions.

Associate:

Dated:    3 July 2026