Henjo follows common law. Demagogue v Ramensky – is there a reasonable expectation of disclosure?
Miller v BMW – no reasonable expectation because know of matter likely to be important to other. Consider nature of parties.
Particular facts must be considered in light of ordinary incidents and character of commercial behavior (General Newspapers).
Accidental silence
Section 2(2) speaks of “refraining (otherwise than inadvertently)”. Does it need to be deliberate? Authorities unclear.
Fraser, Johnson Tiles, Fabcot suggest misleading/deceptive even if didn’t know of facts not disclosed.
Rhone-Poulenc – has to be deliberate.
Mere puff/exaggerated claims
Byers v Dorothea – comparison with other apartments not too vague.
Where correctness can be sensibly objectively tested, it is more likely to be viewed as M/D if inaccurate (Byers; Downey).
Judicial caution against overly broad liability (General Newspapers).
Statement as to future
Special rules in s 4 ACL. See LG for examples.
What is a representation as to the future?
Miba v Nescor – accepted that it was a statement as to the present belief of what takings would be. Accepted. Narrow?
Digi Tech v Brand – Miba seemed narrow. May be a current factual element but its probably a forecast.
Promises
Mere non-fulfillment of a promise is not misleading or deceptive.
Futuretronics v Ghadzis – contract unenforceable (formality issue). Per ACL s 4 inquiry no longer limited to considering implied representations about intention and ability to perform. Inquire whether at the relevant time the promisor had reasonable grounds for making the implicit representation that he/she intends to perform.
Concrete Constructions v Litevale – representation as to capacity far more difficult. Before applying s 4 court must determine whether a representation has been made and exercise restraint since promise may have relied on nothing more than contractual rights from promise. Expansive approach to “reasonable grounds.”
Opinion
Merely stating an opinion not misleading or deceptive (cf Henjo, rejected in Johnson and Johnson Pacific).
Global Sportsman v Mirror – possible to argue implied statement of fact that I hold the opinion and it is based on fact.
Belief
Could be an implied representation that your belief is based on reasonable foundations.
Havyn v Webster – paced out size of apartment. Actionable.
Law
Inn Leisure Industries Pty Ltd v. DF McCloy Pty Ltd - Can be misleading when the person making the statement holds himself as having expertise.
Plaintiffs who fail to take care
Gibbs CJ in Parkdale suggested legislation shouldn’t protect those who fail to take reasonable care of their own interests.
Suncoast Pastoral v Coburg – Applegarth J suggests it isn’t strong authority- only has support of Gummow J in Reeves. Purpose of Act was to protect imprudent as well as prudent, trusting as well as the suspicious.
O’Hagan v Classic Cars – found liability despite extreme failure to take care. Accepted: could break chain of causation in theory.
Remedies
Section 232: Injunctions. Section 236: Damages. Debate about how assessed. Not limited to pecuniary losses. No exemplary.
Gates v City Mutual Life – torts measure. Moving towards wider notion in Marks v GIO.
Murphy v Overton – allowed recovery of continuing financial obligation that D incurred under lease. Expectation loss.
Jamieson v Westpac per Jackson J – no other authority, ACL about correcting wrong, expectation measure overcompensates.
Can get damages for loss of opportunity under s 236: Sellars v Adelaide Petroleum.
Section 237 allows various orders including those listed in s 243.
Section 137B – where economic loss/damage to property, court can make reduction under s 236 for P’s own fault.
Disclaimers/exclusion/acknowledgment clauses
Fair Trading Act 1989 (Qld) s 107 – Act has effect despite any contrary clause.
Recall disclaimer in Butler – look at in context of relationship and course of conduct.
Acknowledgment clauses – Campbell – work in theory but depends on facts. Courts reluctant to allow use.
Duress
Elements
Universe Tankships v ITWF per Lord Scarman:
1) Pressure amounting to compulsion of the will of the victim (rejected by McHugh JA in Crescendo citing DPP v Lynch).
2) Illegitimacy of pressure asserted.
Modern formulation:
1) Pressure that is illegitimate.
2) Pressure that causes the plaintiff to enter the contract.
Duress to the Person
Actual violence/threat of violence to a person or close relative is illegitimate pressure: Barton v Armstrong.
Illegitimate pressure includes a threat to prosecute someone for a crime: Mutual Finance v John Whetton.
Not enough if amount actually owed and valid consideration; have to show additional impropriety: Scolio.
Duress only needs to be a cause of the contract: Barton v Armstrong.
