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[Contract] Vitiating Factor 2, Misleading and Deceptive Conduct/ Australian Consumer Law

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VITIATING FACTOR II: MISLEADING AND DECEPTIVE CONDUCT





1 ‘IN TRADE OR COMMERCE’ LIMITATION

S 2 ACL 2010
Trade or commerce means:
(a) trade or commerce within Australia; or
(b) trade or commerce between Australia and places outside Australia;
and includes any business or professional activity (whether or not carried on for a profit).

Concrete Constructions (NSW) Pty Ltd v. Nelson (1990) 169 CLR 594
A statement made to an employee in the course of their ordinary activities is not conduct in trade or commerce.

O’Brien v. Smolonogov (1983) 53 ALR 107
“In trade or commerce” excludes conduct of those who act not in a business capacity but in a purely private capacity concerning domestic transactions

Houghton v. Arms (2006) 225 CLR 553
Issue: Were workers in a company giving misrepresentation liable instead of the company?
Held: Yes; they were liable for deceitful conduct in trade or commerce; mere employee can be liable for deceit

Bevanere Pty Ltd v. Lubidineuse (1985) 59 ALR 334
Was the sale…