AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
[1914] AC 932 at 953–954 “[i]n Chancery the term ‘fraud’ thus came to be used to describe what fell short of deceit, but imported breach of a duty to which equity had attached its sanc- tion.” His Lordship emphasised that a person who misconceived the extent of the obligation which a court of equity imposed upon him or her, “however innocently because of his ignorance” , was taken to have violated an obligation which he was taken by the Court to have known, and with the result that the conduct was labelled fraudulent. He said of fraud in this sense at 954 that “what it really means in this connection is, not moral fraud in the ordinary sense, but breach of the sort of obligation which is enforced by a Court that from the beginning regarded itself as a court of conscience.” On a smaller scale, the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) (ACL), provides protections to consumers including, amongst other things, in respect of misleading and deceptive conduct. Since 1 July 2021, a consumer is defined as any person: • who acquires goods or services for an amount not exceeding AUD100,000; or • who, where the amount of goods or services exceeds AUD100,000, acquires the goods or services for personal, domestic or house - hold use (Section 77A of the Treasury Laws Amendment (Acquisition as Consumer – Financial Thresholds) Regulations 2020). Section 18 of the ACL contains a general pro - hibition against a person/company, in trade or commerce, engaging in conduct that is mislead - ing or deceptive, or likely to mislead or deceive. Additionally, Section 29(1)(d) of the ACL con - tains a specific prohibition against a person/ company, in trade or commerce, in connection
with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply of goods or services, making a false or misleading representation that a particular person has agreed to acquire goods or services. Although Section 29 uses “false or misleading” rather than “misleading or decep - tive” , the Australian courts have held that there is no material difference between the two phrases (ACCC v Dukemaster Pty Ltd [2009] FCA 682; ACCC v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73) and claimants often plead breaches of both provisions. Common law misrepresentation overlaps with the statutory provisions and is relevant in cir - cumstances where the statutory provisions do not apply, including where the claims exceed the monetary limits stipulated. Common law misrepresentation involves (i) the giving of false information by a party (or their agent) to an inno - cent party before a contract is made; and (ii) the statement inducing the innocent party to enter into a contract. A misrepresentation may be innocent, negligent or fraudulent with the crucial difference being whether the person making the statement believed the statement to be true at the time of making the statement. 1.2 Causes of Action After Receipt of a Bribe The decision of the Supreme Court of the Unit - ed Kingdom in FHR European Ventures LLP & Others v Cedar Capital Partners LLC [2014] UKSC 45 (FHR) resolved the debate in the UK surrounding the rightful owner of a bribe that has been paid to an agent. The Supreme Court unanimously held that where an agent accepts a bribe or secret commission, it is held on trust for the agent’s principal who is entitled to a pro - prietary interest in the benefit. Whilst English law is not binding in Australian courts, the decisions
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