Representations

Representations are frequently subject to suit based on conduct which is misleading and deceptive and or the basis of an estoppel.

For conduct which is misleading and deceptive please visit our Trade Practices pages.

This webpage looks common law misrepresentation and estoppel.

• Waltons Stores (Interstate) Pty Ltd v Maher¹⁾
  • Mason CJ and Wilson J said the doctrine of promissory estoppel
    • extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlying the transaction between the parties must be unconscionable.
    • As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering detriment, does not bring promissory estoppel into play.
    • Something more would be required.
    • Humphreys Estate suggests that this may be found, if at all, in the creation or encouragement by the party estopped in the other party of an assumption that a contract will come into existence or a promise will be performed and that the other party relied on that assumption to his detriment to the knowledge of the first party …
    • On the other hand the United States experience … suggests that the principle is to be expressed in terms of a reasonable expectation on the part of the promisor that his promise will induce action or forbearance by the promisee, the promise inducing such action or forbearance in circumstances where injustice arising from unconscionable conduct can only be avoided by holding the promisor to his promise.“
  • Brennan J said
    • In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that
      1. the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship;
      2. the defendant has induced the plaintiff to adopt that assumption or expectation;
      3. the plaintiff acts or abstains from acting in reliance on the assumption or expectation;
      4. the defendant knew or intended him to do so;
      5. the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and
      6. the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise]

• Austotel Pty Ltd v Franklins Selfserve Pty Ltd²⁾
  • Priestley JA said for equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable