When is something misleading or deceptive?

In misleading conduct cases one of the critical questions is whether something would mislead or deceive someone else.

Deception

Conduct is deceptive if it causes belief in something that is false. For instance, if I sell you a house for redevelopment, when I know the house is heritage listed and cannot be redeveloped, then it is likely that I have deceived you.

Generally, deception requires more of the wrongdoer than what misleading conduct does since there is an element of intent involved.

Misleading conduct

To mislead someone is to objectively lead them into error. It can take many forms such as when someone quite innocently does so or if a representation about the future is made when there is no reasonable basis for doing so.

The audience

Whether or not something is misleading or not depends upon the audience.

Ask whether the hypothetical reasonable person, if they were a member of the audience, would be led into error and if so then it is likely that there was misleading conduct.  

For more information contact our commercial litigation lawyers. 

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