Honda Australia Pty Ltd has paid a penalty of $18,780 after the ACCC issued it with an infringement notice for an alleged breach of Motor Vehicle Service and Repair Information Sharing Scheme (MVIS scheme) information sharing requirements.
The MVIS scheme is designed to give independent repairers equitable access to the necessary diagnostic software and technical information to service and repair modern motor vehicles. It generally requires vehicle manufacturers to offer the information for sale by day, by month, and by year; or alternatively, for any period nominated by an independent repairer.
The ACCC alleges that from 1 July 2022 to 6 May 2024, Honda Australia offered to supply the software only by yearly subscription, and did not give independent repairers the option to purchase less expensive subscriptions on a daily or monthly basis.
This is the first ACCC enforcement action for an alleged contravention of the MVIS scheme, and the ACCC has stated that it continues to focus on enforcement in this area. Contraventions of certain MVIS Scheme provisions may attract a penalty of up to $10 million per contravention.
The payment of this latest penalty by Honda Australia follows the recent legal proceedings instigated by the ACCC against Honda Australia which resulted in the imposition of penalties against Honda Australia totalling $6 Million by the Federal Court of Australia in December last year. The Federal Court imposed the penalties totalling $6 Million after finding that Honda Australia engaged in misleading or deceptive conduct, and made false or misleading representations to customers of former authorised Honda dealerships, Brighton Automotive Holdings Pty Ltd (Astoria), Tynan Motors Pty Ltd (Tynan) and Buick Holdings Pty Ltd (Burswood).
The ACCC alleged that between about January 2021 and June 2021, Honda Australia represented to customers of Astoria, Tynan and Burswood that the dealerships would close or had closed and would no longer service Honda vehicles, when this was not the case. These representations were allegedly made in emails, text messages and phone conversations with customers.
The communications were made in the context of Honda Australia restructuring to an agency mode which resulted in some franchise agreements with authorised dealers being terminated, including agreements with Astoria, Tynan and Burswood. However, the Astoria, Tynan and Burswood dealerships continued to operate independent service centres to service and repair vehicles, including Hondas.
Honda Australia admitted that in certain statements to thousands of customers it had breached the Australian Consumer Law by making misleading representations that the dealerships had closed and would no longer service Honda vehicles.
ACCC Commissioner Liza Carver said ‘Honda Australia deprived consumers of the opportunity to make an informed choice about their options for servicing their vehicle. It also caused likely financial loss to the dealerships by the false claim they were closing or had closed.’
The Federal Court penalties were imposed against Honda Australia after injunctive proceedings were commenced by HWL Ebsworth on behalf of Astoria in the Supreme Court of Victoria to restrain Honda Australia from making false or misleading representations to customers of Astoria.
Honda Australia is presently waiting for final orders to be handed down by the Supreme Court of Victoria as to the amount of damages it is required to pay to Astoria following a separate legal proceeding brought against Honda Australia for unlawfully terminating Astroria’s Dealer Agreement as part of its transition to an ‘agency’ distribution model. Astoria expects the damages figure that Honda Australia will be ordered to pay to it will exceed $10 million.
This article was written by Evan Stents, Lead Partner – Automotive Industry Group.
