Case: Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: applied
all, a fundamental purpose of the Parliament prescribing the norm of conduct enacted in s 52 of the Act is to ensure the protection of the public, particularly consumers. I reject Austcorp's argument that it did not engage in the conduct of providing to the applicants the brochure, leaflet and their repetitions by Mr Walker. Austcorp was the hands and brains of its subsidiaries' conduct and Austcorp cannot evade responsibility for any contravention of s 52 by seeking to draw down between itself and them a corporate veil for the contraventions it perpetrated: cf: Hamilton 166 CLR at 128; Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at 88 [108] . It is important to assess whether a misrepresentation was an operative cause of the decision of a person to enter into a contract. Ordinarily, a person who has made a false representation is under a duty to correct it before the representee acts to his or her detriment in reliance upon it. This is so in cases of fraudulent misrepresentation as Lord Reid explained in Briess v Woolley [1954] AC 333 at 349. Equally, in cases of unintentional contraventions of s 52 of the Act, a representee who relies on an uncorrected misleading representation (even where the representor does not know of the facts which make the representation incorrect) is entitled to relief under Pt VI of the Act: Campomar 202 CLR at 85 [103]. Whether something is a cause of something else is ultimately a question of fact although it can involve considering and applying difficult value judgments. As Gibbs CJ said in Puxu 149 CLR at 199 (see also Campomar (2000) 202 CLR at 85 [102]-[103] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ): "The heavy burdens which [s 52] create cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will of course depend on all the circumstances." The issue for consideration is whether any contravention of s 52 has arisen by the conduct of the promoters in putting forward the brochure and leaflet and authorising Mr Walker to speak as he did consistently with them, when the contract appears to contain different provisions, materially as to the identity of the lessee and the nature of Pacific International Hotels' financial and commercial confidence in the venture promoted. In Campomar 202 CLR at 83 [98], Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ emphasised the need to enquire why any misconception had arisen in the mind of the person claiming have been misled or deceived. A sufficient nexus must exist between the conduct complained of and the misconception or deception. Austcorp argued that the nexus was, in effect, broken because the contract was a legal document which set out with considerable precision and at length the actual relationship that would exist if a person entered into the contract and the lease. For example, it argued that it was not reasonable for a person in the position of Ms Tan-Bounkeua not to have had a solicitor advising her and that, had she done so, the solicitor would have broken the chain of causation, even if he or she negligently failed to advise the purchaser of the provisions of cl 20.9 or the existence of Mustara. I discuss this specific issue below [See 2.18]. Gibbs CJ observed in Puxu [1982] HCA 44 ; 149 CLR 191 at 199 that the Act did not impose burdens which operated for the benefit of persons who failed to take reasonable care of their own interests: see too Campomar 202 CLR at 85 [102]. As explained above, it is necessary to consider whether Austcorp's conduct in making each representation to each of Mr Owers and Ms Tan-Bounkeua was misleading or deceptive: Butcher 218 CLR at 604-605 [36]-[37]; Campomar 202 CLR at 85 [103]. It is not necessary to consider the position of Mr and Mrs Di Giulio and Mr Luciani because I have not accepted their evidence that they relied on any of the representations. 5. WERE THE REPRESENTATIONS RELIED ON AND WERE THEY MISLEADING OR DECEPTIVE Representations (a) and (h): each applicant would be assured of a 7% p.a. net rental return of the purchase price for 10 years