Smith v Noss

[2006] NSWCA 37

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Misleading or deceptive conduct
3. › Causation
4. › Whether entry into partnership caused by false representations
5. › Whether representee would not have entered partnership if truth known
6. › Need for 'specific evidence of reliance'
7. › Whether inference of inducement available from nature of representations
8. › Fair Trading Act 1987 (NSW), ss 42, 68(1)
1. Evidence
2. › Proof of causation in misleading or deceptive conduct claims
3. › Inference of inducement from false representations
4. › Whether specific evidence of reliance or decision-making process required
5. › Unchallenged evidence in cross-examination
1. Partnership
2. › Formation
3. › Representations inducing entry into partnership
4. › Setting aside partnership agreement ab initio
1. Appeal
2. › New trial
3. › Credibility-based findings
4. › Whether appellate court can determine causation or new trial required
5. › Associated credibility issues requiring fresh hearing

Quick Take

In claims for misleading or deceptive conduct under s 42 of the Fair Trading Act 1987 (NSW), a trial judge errs by insisting that the representee provide specific evidence of reliance or evidence explaining their decision-making process. Causation may be established by inference from the nature of the representations and surrounding circumstances, applying the principle in Gould v Vaggelas. Where false representations are of a nature likely to induce entry into a transaction and the plaintiff did enter the transaction, the inference of inducement arises and the analysis of the effect of the representations is for the judge on the evidence as a whole.