A claim for misleading and deceptive conduct by silence or non-disclosure must be specifically pleaded; it cannot be raised for the first time in submissions or derived from evidence given in support of a different pleaded case, even where the opposing party's submissions address the topic of silence. A reasonable expectation analysis is a mandatory precondition to finding liability for non-disclosure under s 52 of the Trade Practices Act 1974 (Cth). Section 154 of the Leases (Commercial and Retail) Act 2001 (ACT) applies to the whole of a controversy between landlord and tenant, including counterclaims and third party claims, not merely claims directly under the Act.
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