Case: Poseidon Ltd v Adelaide Petroleum NL (1991) 105 ALR 25 
Outcome: referred to
It was common ground that s 52 of the TPA prohibited BreakFree or any person acting on behalf of BreakFree from engaging in conduct ' in trade or commerce' that was misleading or deceptive or likely to mislead or deceive and that the phrase, ' in trade or commerce ' was sufficiently broad to apply to the private contractual negotiations between Latitude and BreakFree: Poseidon Ltd v Adelaide Petroleum NL (1992) ATPR 41-164 (see also definition of "conduct" in s 4(2)(b) of the TPA). 188 Latitude's allegations fell into two categories: (1) representations made by Smith and Frawley relevant to BreakFree's capacity or intention to develop the site and to on-sell the Development Assets and the Stage 4 Assets to Latitude ("Representations relating to BreakFree's Status as Manager"); and (2) representations by Frawley that BreakFree agreed to vary cl 2 of the HofA so that it was not conditional on Deposits Condition Precedent. The statutory questions relevant to each category of representation overlap with the inquiries at common law relating to the obligation to negotiate in good faith and the construction of the parties' agreement in relation to the status of the Deposits Condition Precedent on 30 August 2004. Factual findings already made in relation to the common law claims are pertinent to the resolution of the TPA claims. 189 Latitude contends that during the course of negotiating the terms of the HofA, BreakFree misrepresented to Latitude that it did not intend to develop the Erskine site, and was uninterested in representing itself in the market as a developer, and failed to disclose to Latitude that it reserved its rights to undertake the development if the parties' terminated the HofA. 194 In the circumstances, I am not persuaded that Latitude was misled by BreakFree. Though private contractual negotiations involving a corporation in trade or commerce may support a claim for a breach of s 52 of the TPA, it is important to distinguish infringing conduct from representations that are apposite to "sharp commercial practice" or made in the course of parties bargaining at arm's length: Rhone Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 490; Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 475; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32 (per Black CJ); at 40-41 (per Gummow J); Poseidon Ltd v Adelaide Petroleum NL Ltd (1992) 105 ALR 25 at 26 and Australian Competition and Consumer Commission v Oceania Commercial Pty Ltd [2003] FCA 1516 at [196] - [201] . The relationship between Latitude and BreakFree was that of vendor and purchaser, bargaining at arm's length. In these circumstances, there cannot be said to have been any expectation on either side that BreakFree would not reserve its rights to undertake development, either in relation to the Erskine on the Beach Project or other projects. This is reinforced by the evidence outlined above. Similarly, any non-disclosure by BreakFree about its commercial intentions should a long form contract not be struck with Latitude cannot be construed as misleading or to have misled Latitude.