2010 cth s 18 misleading or deceptive conduct

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Unformatted text preview: igent Misrepresentation: - statement made innocently but carelessly See Latimer at ¶5-701 See Latimer at ¶5-702 Illegal contracts Misrepresentation and legislation • Australian Consumer Law, see Schedule 2 to the Competition and Consumer Act, 2010 (Cth) • s 18: misleading or deceptive conduct • Contracts will be illegal if they involve illegal conduct • Contracts can be illegal or void: - by statute s 29: false representations or - at common law See Latimer at ¶5-705 at section (3) 41 42 Examples of Illegal Contracts Inequality between the parties • Contracts to commit a crime, a tort or a fraud on a third party • Contracts that are immoral • Contracts to the prejudice of public safety, or of good relations with other countries • Contracts prejudicial to the administration of justice • • • • Duress Undue influence Unconscionable conduct Statute law dealing with unfairness or unconscionability: Australian Consumer Law, see Sch 2 to Competition and Consumer Act 2010 (Cth) • Contracts which tend to promote corruption in public life: Contracts to defraud the revenue Contracts that involve a breach of duty 43 Duress 44 Duress • Duress involves use of violence or illegal threats against a person, their goods or economic interest to force them to enter into a contract against their will • Lack of voluntary agreement • To the person Actual or threatened violence to one contracting party, or their immediate family or near relatives • To goods Wrongful threats to seize, damage or destroy the goods of one contracting party • Economic duress Economic pressure beyond normal acceptable commercial practice 45 46 Undue influence Unconscionable or Unfair Contracts • Involves the improper use of a position of influence or power possessed by one person over another in order to induce that other person to act for their benefit • Contract will be set aside as unconscionable (unfair) where the defendant has abused their superior bargaining position in their dealings with the plaintiff Case: Commercial Bank of Australia v Amadio See Latimer at ¶5-730 • Lack of genuine consent to the agreement 47 48 Unconscionable contracts Unconscionable contracts • Examples of ‘special disadvantage’: age financial needs illness ignorance inexperience inability to understand the language inability to read The plaintiff has to establish: • They were in a position of ‘special disadvantage’ • That substantially affected their ability to protect themselves • The defendant knew, or ought to have known, of the plaintiff’s disability and should not have taken advantage of it AND • The actions of defendant were unconscionable See Latimer at ¶5-730 49 Restraint of trade clauses Restraint of trade clauses • Clauses in restraint of trade are found in: Contracts for employment Contracts for sale of business Contracts between manufacturers and traders • Clauses in contracts in restraint of trade will generally be void as being contrary to public policy unless the restraint is reasonable 51 Next week • • • • Breach of contract Termination for breach Remedies for breach of contract Read: Latimer Ch 6 ¶6-280- ¶6-510 REMEMBER: ASSIGNMENT 1 IS DUE THIS WEEK – GIVE TO YOUR TUTOR IN YOUR WEEK 5 TUTORIAL CLASS 53 • What is ‘reasonable’ is determined by: The geographic extent The time period involved The nature of the business and the activity being restrained Whether the restraint is reasonable, both in the interests of the parties and the public 52...
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This note was uploaded on 03/11/2014 for the course LEGT 2741 taught by Professor Leena during the Three '11 term at University of New South Wales.

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