Section 41(2) of the Fair Trading Act 1987 (NSW) reverses the legal or persuasive onus of proof, so that a representor who makes a representation as to a future matter bears the onus of proving reasonable grounds for the representation. This is to be contrasted with the more elaborate structure of s 51A(2) of the TPA, the proper construction of which remains contested. Where a representor denies making the representations and disavows knowledge of the subject matter, the representor will face great difficulty in discharging the onus under s 41(2). The question whether Sykes v Reserve Bank correctly requires proof of facts actually relied upon by the representor (as distinct from any facts existing at the time) was left open.
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