Hatt & Ors v Magro

[2007] WASCA 124

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Trade Practices
2. › Misleading or deceptive conduct
3. › Representations as to future matters
4. › Whether non-fulfilment of promise or prediction renders it misleading at time made
5. › Misleading character of unfulfilled promises aside from operation of s 51A
6. › Trade Practices Act 1974 (Cth), s 52, s 53B, s 51A
1. Trade Practices
2. › Misleading or deceptive conduct
3. › Accessorial liability
4. › Interaction between s 51A and s 75B
5. › Whether deeming provision in s 51A(2) applies to accessories
6. › Whether accessory must have actual knowledge of misleading character of representations
7. › Trade Practices Act 1974 (Cth), s 51A(2), s 75B, s 82
1. Trade Practices
2. › Misleading or deceptive conduct
3. › Representations as to future matters
4. › Section 51A
5. › Purpose and operation of s 51A(1) and (2)
6. › Whether s 51A provides additional avenue of proof or exclusive avenue
7. › Trade Practices Act 1974 (Cth), s 51A
1. Practice and Procedure
2. › Pleadings
3. › Departure from pleaded case
4. › Whether trial judge entitled to find liability on unpleaded basis
5. › Procedural fairness
6. › Effect of pre-trial ruling confining party to pleadings

Quick Take

Where a claim for misleading or deceptive conduct is brought against accessories under s 75B of the Trade Practices Act 1974 (Cth) in respect of representations as to future matters, the plaintiff must prove actual knowledge by the accessory that the representations were misleading or that the corporation had no reasonable grounds for making them; the deeming provision in s 51A(2) is of no practical assistance. The mere non-fulfilment of representations as to future matters does not establish that they were misleading at the time they were made. Where equivalent state fair trading legislation permits a direct claim against individuals as principals (rather than as accessories), the reversed onus of proof under the state equivalent of s 51A may be available.