Where a respondent makes an express negative misrepresentation in contravention of s 52 of the Trade Practices Act, the 'but for' test of causation is inapplicable; the correct inquiry is what was necessary for the conduct not to be misleading, which in the case of a false denial of the existence of material information requires disclosure of that information. A claimant under ss 82 and 87 is not required to prove loss on the whole of a contract and may recover a discrete loss on a portion of the contract, provided the loss is causally connected to the contravening conduct. The assessment of damages should be approached flexibly to avoid injustice.
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