Dwyer v Craft Printing Pty Ltd

[2009] NSWCA 405

NSW Court of Appeal

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Interrogate

Catchwords

1. Trade and Commerce
2. › Misleading and deceptive conduct
3. › Fair Trading Act 1987 (NSW)
4. › Silence and non-disclosure
5. › Whether continuation of trading relationship without disclosing change in corporate structure constituted positive conduct or mere silence
6. › Whether conduct was 'refusal to act' requiring advertence
7. › Fair Trading Act 1987 (NSW), ss 42, 4(4)
1. Trade and Commerce
2. › Misleading and deceptive conduct
3. › Distinction between positive conduct and mere silence
4. › Silence in context of existing trading relationship
5. › Reasonable expectation of disclosure
6. › Whether concealment of fact causes representation of another fact to be misleading
1. Debtor and Creditor
2. › Appropriation of payments
3. › Running accounts
4. › Whether appropriation induced by misrepresentation is voidable
5. › Whether election made under misrepresentation is genuine choice
6. › Deeley v Lloyds Bank Ltd [1912] AC 756

Quick Take

Where a party continues an existing trading relationship in the same manner as before without disclosing material changes to the corporate structure underlying the relationship, this constitutes positive misleading and deceptive conduct — not mere silence or inadvertent refraining from disclosure. The 'inadvertence' defence under s 4(4)(b)(i) of the Fair Trading Act 1987 (NSW) does not arise where the conduct is characterised as positive. An appropriation of payments induced by misleading conduct is not a genuine election and cannot bind the misled party.