Detailed notes (primarily case notes) on the topics of Incorporation of terms and construction, factors vitiating a contract and damages and included are super summaries ideal to take into an open book exam....
The following is a more accessible plain text extract of the PDF sample above, taken from our Contracts 2 Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Misleading and Deceptive Conduct
Liability for misleading/deceptive conduct is imposed by various Federal/State and Territory Legislation, breaches of these provisions entitle the aggrieved party to damages
The powers created under these sections are often derived from the Commonwealth Constitution (e.g. corporations power, the trade and commerce power, the post and telegraph power etc.
Furthermore a claim under s82/s87 of the Act can include a person ‘involved in a contravention’ (s75B – aiding/abetting been knowingly concerned in a contravention of s52)
Trade or Commerce Limitation
In order to fall within the ambit of s52 the misleading/deceptive conduct must occur ‘in trade or commerce’
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Relevant Facts: The appellant company was constructing a building in Sydney. The respondent was an employee of the company working on site, who sustained injuries falling to the bottom of an air-conditioning staff while attempting to remove a grate at the entry point. He alleged his injuries were caused by the conduct of the company foreman who wrongly informed him that the grates at the entry points were fixed by bolts and it was safe to remove them. The worker fell because the grates gave way, not being fixed. The worker claimed under s52 that his injury could be attributed to the worker ‘by reason of conduct....mislead or deceive’ Ratio (Mason CJ, Deane, Dawson and Gaudron JJ):
Ratio (Toohey J):
Order: Appeal Allowed |
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O’ Brien v Smolongov (1983) 53 ALR 107 Relevant Facts: The appellants acquired land which was under a conditional leasehold and in order to be built upon it would have be converted to freehold by paying fees etc. They decided they would like to build on a portion of the land and tod o so sell other portions of their holding. They advertised ‘building permit OK’, and when the first respondent called and spoke over the telephone a number of misrepresentations were made concerning its location, the quality of the land, the presence of a building permit etc. Following these representations the parties entered into a contract of sale for a purchase and deposit price paid by the respondents, completion taking place 8 weeks after. By notice, 8 days before completion the respondents purported to rescind, demanding a return of the deposit and interest on costs, on the claim that false/misleading statements were made contrary to s53A(1)(b). The trial judge held that he was satisfied the statements were made ‘in connection’ with the possible sale and that they concerned either its location/characteristics – ordering a refund of the deposit and damages/legal costs. The appellants appealed. Ratio (Fox, Sheppard and Beaumont JJ):
Order: Appeal allowed |
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The sale of individual property/assets used for business activity was held to be in trade or commerce in Havyn Pty Ltd v Webster [2005] NSWCA 182
Houghton v Arms (2006) 225 CLR 553 Relevant Facts: Arms engaged WSA Online to provide website design services. Two of their employees (Houghton and Student) told htem that a particular web-based payment system could be set up easily and represent the extent of documentary obligations to be fulfille d by participants on the website. Arms set up a web-baseed wine-selling business based on these representations and... |
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Detailed notes (primarily case notes) on the topics of Incorporation of terms and construction, factors vitiating a contract and damages and included are super summaries ideal to take into an open book exam....
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