The onus of proving failure to mitigate lies on the defendant, and a plaintiff's failure to maintain or repair a defective product does not constitute failure to mitigate where the product was not as represented. Under s 51A of the Trade Practices Act, where a corporate representor denies making a representation as to a future matter, the statutory presumption that the representor did not have reasonable grounds is not displaced merely by the representor's denial; the representor must adduce evidence of reasonable grounds. A party who fails to put a proposition to a witness in cross-examination in accordance with Browne v Dunn may be precluded from advancing that proposition on appeal.
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