Mere non-fulfillment of a promise is not misleading or deceptive.
Futuretronics v Ghadzis – contract unenforceable (formality issue). Per ACL s 4 inquiry no longer limited to considering implied representations about intention and ability to perform. Inquire whether at the relevant time the promisor had reasonable grounds for making the implicit representation that he/she intends to perform.
Concrete Constructions v Litevale – representation as to capacity far more difficult. Before applying s 4 court must determine whether a representation has been made and exercise restraint since promise may have relied on nothing more than contractual rights from promise. Expansive approach to “reasonable grounds.”
Opinion
Merely stating an opinion not misleading or deceptive (cf Henjo, rejected in Johnson and Johnson Pacific).
Global Sportsman v Mirror – possible to argue implied statement of fact that I hold the opinion and it is based on fact.
Belief
Could be an implied representation that your belief is based on reasonable foundations.
Havyn v Webster – paced out size of apartment. Actionable.
Law
Inn Leisure Industries Pty Ltd v. DF McCloy Pty Ltd - Can be misleading when the person making the statement holds himself as having expertise.
Plaintiffs who fail to take care
Gibbs CJ in Parkdale suggested legislation shouldn’t protect those who fail to take reasonable care of their own interests.
Suncoast Pastoral v Coburg – Applegarth J suggests it isn’t strong authority- only has support of Gummow J in Reeves. Purpose of Act was to protect imprudent as well as prudent, trusting as well as the suspicious.
O’Hagan v Classic Cars – found liability despite extreme failure to take care. Accepted: could break chain of causation in theory.
Remedies
Section 232: Injunctions. Section 236: Damages. Debate about how assessed. Not limited to pecuniary losses. No exemplary.