The Court also today found Excite Mobile "acted unconscionably and used undue coercion" when attempting to obtain payment for mobile phone services.
Excite Mobile’s directors, Mr Obie Brown and Mr David Samuel were both found to have been directly knowingly concerned in Excite Mobile’s contraventions.
Ms Fiona Smart, an agent of Excite Mobile, was also found to have been "knowingly concerned" in false representations made in relation to Excite Mobile’s debt collection conduct.
The company was accused of threatening to repossess children's toys and using lawyers to pursue more than 1000 late-paying customers, including impoverished Aborigines charged for non-existent services.
Specifically, the Court found that:
- Excite Mobile acted unconscionably in relation to the sales method it used to induce customers to enter into a 24 month mobile phone contract, the terms included in its mobile phone contracts and in Excite Mobile’s reliance upon, and enforcement of, those contractual terms.
- Mr Brown and Mr Samuel were found to have been knowingly concerned in the unconscionable conduct of Excite Mobile;
- Excite Mobile falsely represented to customers that mobile phone coverage was available at their home address when it was not, including to customers in remote indigenous communities where no coverage was available. Mr Samuel was not found to have been involved in making false representations about coverage;
- Excite Mobile, Mr Brown and Mr Samuel created a fictional complaints handling organisation called “Telecommunications Industry Complaints” which deceived consumers into believing that complaints about Excite Mobile were being handled by an independent organisation;
- Excite Mobile in letters sent to at least 1074 of its customers, falsely represented that the letters were from independent debt collector Jerry Hastings or a representative, and that the debt alleged to be owed to Excite Mobile had been referred for collection, when in fact there was no such independent debt collector and the letters were sent by Excite Mobile;
- The telephone number included on the Jerry Hastings debt collection letters for customers to call was answered by Ms Smart and Mr Brown who claimed to be from Jerry Hastings’ office. The Court found that Mr Brown and Ms Smart then induced or attempted to induce customers to pay the debt allegedly owed to Excite Mobile;
- By sending the 1074 debt collection letters in the name of Jerry Hastings and using the Jerry Hastings telephone number, Excite Mobile used undue coercion against consumers in relation to obtaining payment for mobile phone services.
- Excite Mobile made false representations in a number of these letters about the rights and remedies available to Excite Mobile in the event that legal proceedings were instituted against the customer.
- This conduct was considered to be unconscionable, and included false representations that to recover the alleged debt a court would make orders: requiring the customer to pay an additional charge equal to 20% of the customer’s alleged debt for failing to pay on time, and for the repossession of all assets of value owned by the customer including children’s toys.
For more, including the Justice's comments and potential penalties, read on to page two.