A 'non-refundable deposit' clause in a commercial contract will ordinarily be construed as precluding recovery only where the depositor defaults, not where the payee repudiates the agreement. Even if the clause precludes restitutionary recovery, the deposit amount is recoverable as reliance damages for wasted expenditure following repudiation. Silence about financial incapacity to perform during pre-contractual negotiations may constitute misleading and deceptive conduct under s 52 of the Trade Practices Act 1974, and such silence need not be intentional to be actionable.
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