Pages 1 -5 Flashcards
Peekay Intermark v. Australia and New Zealand Banking Group
Facts: The claimant alleged mis-selling of an emerging markets investment product. The defendant claimed that whilst there might have been a misrepresentation, by the time the contract was formed, correct information had been provided and incorporated in the contract.
What was the decision in Peekay?
The later correction did not correct the earlier misrepresentation. The claimant’s agent had signed every page of the contract, but given the representations made, it was likely that the claimant had only given cursory examination to the document before signing it
How was the Representee described in this case?
‘Sophisticated’ and experienced investor assessed investment without reliance on this casual misrepresentation
Moore-Bick LJ
It is not enough to show the claimant could have discovered the truth, but that he did discover it. This seems to me to the explanation. However, none of those cases concerned misrepresentation which was ‘corrected’ by the terms of the very contract to which claimant put his signature (Moore-Bick LJ)
Redgrave v. Hurd
In order to set aside a contract obtained by false representation you had to prove that party who obtained it knew at the time it was a misrepresentation.
a) A man is not to be allowed to get a benefit from a statement which he now admits to be false
b) He is not to be allowed to say for the purpose of jurisdiction that when he made it he did not know it to be false
Salt v Stratstone Specialist Ltd
The normal remedy for misrepresentation is rescission which should be awarded if possible, particularity perhaps in a case in which a defendant makes no attempt to prove that he had reasonable grounds to believe its representation was true
Affirmation
Where representee, with knowledge of the misrepresentation, elects not to rescind the contract
Lapse of time
Leaf v. International Galleries :- Buyer discovered 5 years later it was not the proper artist - tried to rescind the original sale
COA: Artist was unable to rescind despite having ample opportunity to examine the picture and discover the truth of the representation. He had ample opportunity to examine the picture and discover the truth of representation - there was no finality in transactions and if innocent representees can rescind contracts in years, perhaps decades afterwards
Hunt v. Silk (Facts)
Landlord promises to make repairs once tenant moves in. Fraud misstatement to induce contract. The common law refused rescission. The tenant could return to the premises and return rent because he had been occupying land in intermediate period
Hunt v Silk (Judgement)
Parties cannot be pulled back in statute. It requires courts to turn back in time
Spence v. Crawford (Lord Wright)
The Court must fix its eyes on the goal of doing ‘what is practically just’. How this may be reached must depend on the circumstances of the case. But the Court will be more drastic in exercising its discretionary powers in a case of fraud than in a case of innocent misrepresentation
O’Sullivan v Management Agency (1985)
The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the rescission of contracts for misrepresentation or mistake, and did not apply to equitable relief where contracts had been entered into as the result of undue influence.’
O’Sullivan Judgement
Rescission might still be granted if practical justice can be achieved. Agreements obtained by undue influence were set aside even though the parties could not be restored to their original positions.
Andrew Burrows
O’Sullivan is a highly significant case. One can strongly argue that the COA effectively abolished impossibility of restitution will bar rescission
Salt v Stratstone Specialist Ltd
Sale of a car described to be brand new. It turns out not to be new, he had never been registered owner. It has only ever been in the showroom - then number of repairs done to it before it was sold to C.
