78181 Deceptive Trade Practices

Description

This subject examines in detail the statutory action of misleading and deceptive conduct within the meaning of section 18 of the Australian Consumer Law (ACL). Section 18 is contravened where a defendant engages in conduct that is likely to deceive in trade and commerce. Because the remedies under the ACL are more flexible and far-reaching, and usually easier to establish than remedies available at common law or in equity, legal practitioners tend to rely on the statutory action of misleading and deceptive conduct as an alternative to traditional claims based on common law or equitable breaches of the general law. In this subject, students analyse cases dealing with the meaning of the phrases 'in trade and commerce' and 'misleading or deceptive conduct', and how loss or damage is assessed. The application of the law to all the facts and circumstances is stressed. A distinction is drawn between cases involving competitors, rivals and political opponents, and cases involving parties in contractual relationships such as vendors and their agents versus purchasers; finance providers and their agents versus borrowers; and landlords and their agents versus tenants. Silence, promises, predictions and representations about future matters as misleading or deceptive conduct are also examined in depth. Students analyse the causal nexus between a contravention of section 18 of the ACL and any loss or damage suffered: whether the claimant relied on the misleading or deceptive conduct; whether this reliance caused the loss; and the effect on a claimant who, although misled or deceived, failed to take reasonable care. Finally, the remedies available under the ACL are examined in detail.