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Week 10 - Unfair business practices Deceit; committed where the D…

- - - - TJ Larkins & Sons v Chelmer Holdings 1965 Qd R
- - - - The D is only liable to the person whom it intended should act upon the representation. This can also be extended to the class of person or that it is sufficient that the D intended it to be passed onto the P; Peek v Gurney 1873
        
        Commercial Banking Co of Sydney v RH Brown 1972
        The P delivered wool but did not receive payment from the purchasers. The Bank of NSW made an enquiry on behalf of their customer to the P bank with regards to their business dealings with the purchaser of the wool. The D Bank claimed the purchaser was reliable, however placed a disclaimer about using the information by other parties. The HC determined that the D bank knew the information would be used and also knew about the true state of the purchasers financial affairs. It was also deemed that the P was in the class of person who would ordinary rely on this information, and it was enough that although the P was not told directly by the D bank, it was found that it was made with the intention that it would have been passed onto the P.
  - - - Gould v Vaggelas 1985
        The P have the onus of proving that the representations they complain of were material, and that they were induced to act upon them.
  - - - Gates v City Mutual Life Assurance Society 1986
        the P is entitled to all the consequential loss directly flowing from their reliance on the representation at least if the loss is foreseeable
  - - - principle of caveat emptor (let buyer beware)
        
        the onus is on the P to investigate all matters relevant to the transaction at hand, and the D is not liable for failing to disclose matter even when the D knows that these matters would be crucial to the P decision.
        
        only time that failure to disclose will become liable is where there is partial disclosure; that is the statement is true when made but subsequently becomes false; and where the statement is believed to be true when made but may be later found to be false
    - - Krakowski v Eurolynx Properties Ltd 1995 HC
        The prospective purchasers of a property commenced proceedings of deceit under the former Trade Practices Act (now ACL), with regards to a statement made about the return on the lease at the time of sale. The D did not disclose the existence of a collateral agreement with the lessee which contained a number of incentives. By failing to disclose the collateral agreement the P had committed deceit with regards to the true rent being paid. This was not non-disclosure but a positive misrepresentation of the whole lease between the D and the lessee. It was irrelivant that the D had not actually made a statement as the lease was and exhaustive contract, as indicated by the way that the D conducted the transaction with the P
    - - Jones v Dumbrell 1981 VR
        The D bought shares off the P at a discounted rate under the guise that the D would hold onto them in order to keep the business running to which they were of. The D then changed his mind and sold them to a third party for a profit. The change of heart was not disclosed to the P who was able to sue in deceit.
    - - Magill v Magill 2006 HC
        The P (appellant) sued his former wife in deceit alleging that she had falsely represented that he was the father of two children born in the course of their marriage. The HC held that deceit was not established on the facts, and that deceit cannot extend to claims in extramarital sexual relationships and the paternity of children during the course of marriage.
        the tort of deceit is typically associated with commercial transactions, not those that are of personal private and intimate nature.
      - ACL s 18 has a more expansive approach. Court will extend liability for non-disclosure where is satisfied that in all circumstances, including acts or omissions, statements or silence, the conduct was misleading; Demagogue v Ramensky 1992.
        The borader approach applied by the ACL will more likely be preferred cause of action where non-disclosure is in issue.