TORTS — Miscellaneous torts — Deceit — Damages — CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters — Evidential burden — the first plaintiff claims he or the corporate second plaintiff invested funds in contracts for export to the PRC of Australian-made infant formula — the plaintiffs contend these investments were induced by false, misleading and deceptive representations made by the defendants — the plaintiffs’ investments in these contracts were lost — the plaintiffs seek to recover damages from the defendants measured by these allegedly lost investments — whether the defendants engaged in false, misleading or deceptive conduct in making representations to the plaintiffs about the terms of the export arrangements for the infant formula — whether any such representations were contrary to Australian Consumer Law ss 18 and 21 — whether the defendants knew that any representations they made were false, or that they were reckless as to their truth — whether any such representations induced the plaintiffs, to make the investments in the export contracts — whether the plaintiffs are entitled to damages under the Australian Consumer Law or for the tort of deceit.
Quick Take
1Whether an intermediary who passes on a third party's document has 'adopted or endorsed' its representations under ACL s 18 depends on all the circumstances, including the conversational context in which the document was supplied, the intermediary's apparent knowledge of the subject matter, the relationship of trust between the parties, the relative sophistication of the recipient, and whether the intermediary had reason to doubt the document's authenticity — applying Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 and Google v ACCC (2013) 249 CLR 435
2An intermediary who makes oral representations consistent with the content of a fabricated document and then supplies that document as corroboration, without disclaimer and with reason to doubt its provenance, will more readily be found to have adopted the document's representations rather than merely passing on third-party information
3Whether a defendant who creates a misleading document but does not intend it to reach the ultimate plaintiff can be liable under ACL s 18 on a 'causation without reliance' theory was left open for further submissions, the court noting the pleadings could bear that interpretation but fairness required the defendants an opportunity to respond
