Lecture 5 BFA601 Semester 1 2018.pptx

Acl s 18 535 acl s 18 535 misleading conduct in

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ACL s 18 (5.35) ACL s 18 (5.35)
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Misleading conduct in contract law Misleading conduct in contract law For example: false and misleading representations as to a goods’ standard, quality, value, grade composition, style model, origin or history; false or misleading representations as to services; false statements that goods are new; false statements as to testimonials, sponsorships, approvals; false statements as to price, availability of repairs; and false statements regarding the existence of exclusions or conditions; warranties, guarantees, rights or remedies. Unfair practices s 29 ACL (5.36) Unfair practices s 29 ACL (5.36)
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Misleading conduct in contract law Misleading conduct in contract law The ACL offers more expansive remedies for misleading and deceptive conduct compared to the common law, eg the regulator may accept undertakings: s 218; the use of substantiation notices: the regulator may require claims to be substantiated, setting standards of compliance and so on: ss 219–222; public warning notices may be issued: s 223; Statutory remedies (5.37 - 38) Statutory remedies (5.37 - 38)
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Misleading conduct in contract law Misleading conduct in contract law a court may issue pecuniary penalties (and offences): ss 224–225; a court may grant injunctions: ss 232–235; damages awards: s 236; and court-awarded compensation orders for injured persons and orders for non-party consumers: ss 237–239. Statutory remedies (5.37 - 38) Statutory remedies (5.37 - 38)
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Misleading conduct in contract law Misleading conduct in contract law One or both of the parties to the contract may be mistaken, so that there is not true consent. A contract may be void for mistake The party claiming mistake must be able to prove they were mistaken as to some important factor – courts will need strong evidence: Gallie v Lee [1971] Mistake (5.39) Mistake (5.39)
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Misleading conduct in contract law Misleading conduct in contract law Mistake as to law does not void the contract Mistake as to fact might void the contract David Securities Pty Ltd v Commonwealth Bank of Australia (1992) Distinction between mistake as to fact and law (5.40 - 41) Distinction between mistake as to fact and law (5.40 - 41)
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Misleading conduct in contract law Misleading conduct in contract law Categories of mistake: Common mistake Mutual mistake Unilateral mistake Types of mistakes (5.42) Types of mistakes (5.42)
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Misleading conduct in contract law Misleading conduct in contract law Common mistake is a mistake shared by both parties, usually as to the existence of the subject matter of the contract or ownership of the subject matter of the contract. A mistake as to the quality, nature or value of the subject matter is not sufficient to have a contract declared void. Scott v Coulson [1903] McRae v Commonwealth Disposals Commission [1951] Common mistake (5.43) Common mistake (5.43)
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Misleading conduct in contract law Misleading conduct in contract law Mistake as to ownership may be grounds for voiding a contract Leaf v International Galleries [1950]
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