A court may decline to make a buy-out order under s 233 of the Corporations Act where the oppressive conduct has ceased and a provisional liquidator has been appointed, effectively winding down the company's business. The giving of a contractual warranty as to the truth of financial representations is itself a representation capable of constituting misleading or deceptive conduct under s 42 of the Fair Trading Act 1987 (NSW), and a finding that a purchaser sought contractual warranties rather than relying on pre-contractual representations does not necessarily negate reliance for the purposes of a misleading or deceptive conduct claim. Where a share purchaser valued shares on an EBIT basis rather than an assets basis, breaches of warranty that do not materially affect EBIT will only give rise to nominal damages.
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