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William Zhang诉讼律师发表的英文Misleading or Deceptive Conduct文章

更新:2021-04-06 1636 0
所在地区墨尔本 VIC Melbourne
服务分类律师服务
公司名称Hutchinson Legal
公司地址38 New Street, Ringwood VIC 3134
公司网址https://www.hutchinsonlegal.com.au/

Misleading or Deceptive Conduct under s 18 of the Australian Consumer Law


Published on August 21, 2018
Yuyuan (William) Zhang
1 article






s 18(1) of the Australian Consumer Law penalises a person from engaging in conduct, in trade or commerce, that is misleading or deceptive or is likely to mislead or deceive.
The elements required to establish misleading or deceptive conduct are as follows:
The impugned conduct was done in trade or commerce;
The impugned conduct was, in all the circumstances, misleading or deceptive;
The Plaintiff relied on the Defendant\\\\\\\'s misleading conduct; and
As a result of the Plaintiff\\\\\\\'s reliance, the Defendant suffered a loss.

In particular, the impugned conduct or representation by the Defendant must be made prior to the Plaintiff entering into a deal or transaction or investing a certain amount of money. Any post-contractual representation will only helpful in showing the existence of pre-contractual representations.
Throughout my past experience in acting for various Chinese clientele who have been misled to enter into commercial deals, reliance has been the most difficult element to establish and its usually challenged by the Defendant in court proceedings. Recent case laws suggest that in establishing reliance on the Defendant\\\\\\\'s misleading conduct, the Plaintiff merely needs to prove that the misleading conduct is a general or influential factor in inducing the Plaintiff to enter into that transaction or deal to satisfy the element of reliance.
If the conduct is in respect of future matters, s 4 of the Australian Consumer Law places the onus of proof on the Defendant to prove that it or he or she has a reasonable basis in making such pre-contractual representation. For example, the Defendant makes a pre-contractual representation to the Plaintiff that a development project is worth going ahead by presenting to the Plaintiff various profit projections that have a valid basis. After the Plaintiff is induced to enter into this development project, this project fails due to property crisis in Australia. Then, the Defendant may show that the various profit projections presented to the Plaintiff prior to the Plaintiff entering into this project have a reasonable basis because these projections are based on historical data. The property crisis is not a predictable or usual factor.
Over the past three years, I have been instructed by various mandarin-speaking clients who blatantly trusted their friends\\\\\\\' advice and entered into commercial transactions without instructing lawyers to prepare formal agreement/documentation to evidence the commercial agreement between the parties. I usually run through at least two or three dispute cases every year that involve the doctrine of misleading or deceptive conduct under s 18 of the Australian Consumer Law. Yesterday, I just settled a significant commercial dispute involving the element of misleading or deceptive conduct prior to our client, the proposed Plaintiff issues court proceedings against the proposed Defendant.
My bilingual skills in both English and Chinese Mandarin will assist me to obtain instructions from Mandarin-speaking clients in a more thorough manner. My new office address is at 38 New Street, Ringwood VIC 3134.
William Zhang律师的微信号是William571817964。

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    • wzhan001  初中生
    • 注册时间:2013-10-28
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姓名William Zhang
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微信William571879164

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