Misrepresentation In Contract

Front 1

Bissett v Wilkinson

Back 1

Statement of Opinion: Whether the opinion represents fact can be based on relative positions and expertise. Opinion needs true fact justifying it.

Front 2

Premium Real Estate v Stevens

Back 2

Statement of Opinion: Must be honestly and reasonably held.

Silence: Can't tell half truths

Front 3

Ware v Johnson

Back 3

Prediction: Must be based on true fact, which can be extracted.

Silence: No general obligation to speak,unless gestures misled.

Induce: Statement must be said with intent to induce, knowledge that it's a misrepresentation isn't required.

Front 4

New Zealand Motor Bodies v Emslie

Back 4

Prediction: Prediction can't be negligently formed as expert. There is a level of tolerance. Implies facts justify forecast. Subsequent events before signing must be divulged.

Induce: Must be a material factor, but doesn't need to be the only one.

Front 5

Esso Petroleum v Mardon

Back 5

Prediction: People rely on professional predictions - must be good. Duty to not be negligent.

Front 6

Buxton

Back 6

Predictions: Once prediction is made, onus is on adviser to keep informed.

Front 7

Mitchell v Valherie

Back 7

Puffery: Must be obviously hyperbolic to the reasonable person. Look in the context of the market. Helps if too vague to have a definitive meaning. (Dissenting: facts can be extracted and statements are used in consumer decisions.)

Front 8

Wakelin v Jackson

Back 8

Silence: No half truths, once statement is begun the whole truth must be told.

Agency: CRA only includes contractual parties. Can only be liable for statements made by those with and within sensible authority.

Front 9

Ladstone v Leonora

Back 9

Silence: Can't be liable for not disclosing the unknown.

Front 10

Dell v Beasley

Back 10

Silence: Duty to disclose when other party under clear misconception.

Front 11

Savill v NZI Finance

Back 11

Induce: Inducement must be intended, objectively.

Front 12

PAE v Brosnahan

Back 12

CRA Contracting Out: Purpose of CRA is to protect the vulnerable. Here, all was equal so they contracted out.

Front 13

CRA s6(1)(a)

Back 13

Provides damages for misrepresentation to the extent as if the misrepresentation had been true.

Front 14

CRA s7(3)(a)

Back 14

Provides for cancellation for misrepresentation, but only if it substantially changes the burden or benefit from what it was intended to be.

Front 15

FTA s9

Back 15

No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

Front 16

Red Eagle v Ellis

Back 16

Misleading or Deceptive: No judicial gloss. Test objectively on defendant's conduct. Intent not required but there must be a causal nexus. The less the other party knows the stricter the test.

Front 17

Bonz Group v Cooke

Back 17

Misleading or Deceptive: Misrepresentation isn't required. (Obiter: silence cases may have a misapprehension but that's not necessarily a misrepresentation.)

Front 18

Smythe v Bayleys Real Estate

Back 18

Misleading or Deceptive: Don't stretch the meaning of "misleading and deceptive conduct".

Front 19

Heiber v Barfoot & Thompos

Back 19

Puffery: Puffery can have facts extracted from it which must be true.

Front 20

Unilever NZ v Cerebos Gregg

Back 20

Misleading or Deceptive: Puffery is "alive and well", need strong case for s9.

Front 21

Des Forges v Wright

Back 21

Misleading or Deceptive: Doesn't apply to"wholey unconscious" failures to pass on information.

Front 22

FTA s2(1)

Back 22

Defines "in trade"

Front 23

Body Corporate v Taylor

Back 23

"In Trade": Look to conduct to see.Go for businesses not employees.

Front 24

FTA s5C

Back 24

FTA applies to all trade, can't contract out.

Front 25

David v TFAC

Back 25

FTA Contrcating Out: (Obiter: When all parties are well advised in corporate world, they may be able to contract out)

Front 26

FTA s43(3)

Back 26

Provides for damages on s9, so long as plaintiff has been affected or potentially affected.