Misleading and Deceptive Conduct Flashcards
Intent is irrelevant for misleading and deceptive conduct.
Hornsby Building Information Centre v Sydney Building Information Centre [1978] HCA per Stephen J
New business - passing off - intention irrelevant.
For deceit, reliance - which need only be partial - may be inferred from all the circumstances without direct evidence.
Gould v Vaggelas [1985] HCA
South Molle Is resort - overvalued - buyer also skepitical of representations.
The words of s 52 are “productive of considerable difficulty when it becomes necessary to apply them to the facts of particular cases”.
Parkdale v Puxu (1982) per Gibbs CJ
“Post and Rail” chair - similar design - guilliable and astute.
Similar to criminal law, accessorial liability for misleading and deceptive conduct requires intention and knowledge of the facts comprising the contravention.
Yorke v Lucas [1985] HCA
Real Estate agent - passed on vendor’s historical takings - no knowledge false.
In an early case, three High Court judges say “damages in tort is appropriate in most, if not all, misleading or deceptive conduct cases”.
Gates v City Mutual Life Insurance [1986] HCA
TPD policy - mislead re coverage - still recieved value.
s 237 CCA confers a wide discretionary power to make remedial orders to ensure a “fair result”.
Kizbeau v W G & B [1995] HCA
Planning approval misrepresented - motel boardroom for seminars - rent adjusted.
In the strongest statement of the principle, and departing from the earlier emphasis on an anology with deceit, who said in Marks v GIO [1998] that:
“there _is no basis_ for thinking that s 82 is to be confined by analogy either with actions in contract or in tort.”
Gaudron J.
“___________“ is to the jurisprudence of contract what Donoghue v Stevenson is to tort or Salomon v Salomon & Co Ltd is to the law of corporations?
Misleading and deceptive conduct.
Neil Francey, ‘Section 52: Its Rationale, Justification and Deficiencies — and Some Suggestions for Its Improvement’ (1997)
Which later judge of the High Court introduced the Trade Practices Bill 1974 as Attorney-General unde the banner of “consumer protection”?
Lionel Murphy QC.
“[caveat emptor] was appropriate for village markets…[now] the consumer needs protection and this Bill provides such protection”
Parliament can legislate expansively with respect to constitutional corporations, setting the constitutional framework for the Trade Practices legislation.
Strickland v Rocla Concrete Pipes Ltd [1971] HCA
Examinable contracts - arrangement within Queensland only.
A contractual warranty as to an existing fact or state of affairs contravenes s 18 CCA if false.
Accounting Systems 2000 v CCH Australia [1993] FCFCA per Lockhart and Gummow JJ
Computer program - warranted owned copyright - later assignee sued.
What is the first way a contractual promise as to future conduct can be misleading and deceptive under s 18 ACL?
The Global View: Promise and Breach
Greg and Davis (The Law of Contract (1987)).
What is the second way a contractual promise as to future conduct can be misleading and deceptive under s 18 ACL?
No current intention or capacity to perform.
Futuretronics [1992] VSC
Bidder at auction - refused to sign - alleged no honest intention to buy.
What is the third way a contractual promise as to future conduct can be misleading and deceptive under s 18 ACL?
No reasonable grounds for future representation: s 4 ACL
Futuretronics [1992] VSC
Bidder at auction - representation he would sign - no reasonable basis.
“An expression of opinion conveys no more than the opinion expressed is held and perhaps that there is some basis for the opinion….If these conditions are met an expression of opinion, however erroneous, misrepresents nothing.”
Global Sportsman Ltd v Mirror Newspapers Ltd [1984] FCFCA
In deceit, damages are usually the difference between the price paid and the true value of the property at the time of purchase.
Potts v Miller [1940] HCA
ANZ Theatre Co - shares inflated - misrepresentation of value.
Why did the majority in Marks v GIO [1995] HCA decide the plaintiff had suffered no loss?
Plaintiff received value - no better deal available.
A disclaimer may, in light of all the circumstances, mean the conduct is not misleading or deceptive.
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA
Land survey - agent disclaimed - suggested verification.
It may be loss or damage under CCA to incur a larger obligation that you were led to believe.
(cf majority in Marks v GIO?)
Murphy v Overton [2004] HCA
Retirement village - outgoings increased - value received.
Who said “it is in the purpose of the [TPA], as related to the circumstances of a particular case, that the answer to the question of causation is to be found.”
Gleeson CJ in Travel Compensation Fund v Tambree [2005] HCA
Misleading valuation - illegal trading exacerbated - no NAI.
A person who has engaged in misleading or deceptive conduct is liable under state fair trading legislation, notwithstanding he is acting in his capacity as director or employee of a company.
Houghton v Arms [2006] HCA
Online wine retailer - ANZ e‑Gate facility - misrepresented ease of set up.
Under s 5(1), the CCA applies extraterritorially to conduct outside Australia, if:
If:
- the party engaging in the conduct is (relevantly) a body corporate carrying on business in Australia; and
- Ministerial consent is obtained.
Does s 18 of the Australian Consumer Law govern:
(1) representations; or
(2) engaging in conduct?
“Engaging in conduct”.
(Important for silence, and passing on information).
Is voiding a contract entered into becuase of misleading and deceptive conduct an option?
Yes.
Silence is misleading if there is a “reasonable expectation in the circumstances of a disclosure”.
Demagogue Pty Ltd v Ramensky [1992] FCA per Black CJ
Noosa estate - needed licence for driveway - information deliberately withheld.
Under s 18 ACL, the is no “reasonable expectation of disclosure” to correct a careless sophistacted party.
Miller & Associates Insurance Broking v BMW Australia Finance [2010] HCA
Provided non-cancellable contract - BMW didn’t read - no obligation to correct.
