A claim for misleading or deceptive conduct under s 18 of the Australian Consumer Law is one of the most commonly used causes of action in commercial litigation in Australia, including in disputes on major projects in mining, construction and infrastructure. Such claims can relate to conversations or meetings, courses of conduct between owners, operators, contractors and others, and the effect of any number of types and combinations of documents used on a project.
A well-pleaded and argued case of misleading or deceptive conduct can be difficult and costly to defend, and the relief available to a successful party can be substantial. It can also present substantial challenges, and parties in mining, construction and infrastructure disputes often run into difficulties trying to adduce sufficient evidence to prove (or disprove): (i) the existence and meaning of an alleged misleading representation or conduct; or (ii) that the claimant suffered loss as a result of the conduct.
This White Paper looks at the prevalence of misleading or deceptive conduct claims in project-related disputes and some of the challenges which commonly arise, and offers some key takeaways for parties navigating such claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.