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Undisclosed unusual and unexpected matters - liability issues under s52 of the Trades Practices Act

LexisNexis Butterworths
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The purpose of this article is to explore the importance of non-disclosure of unusual and unexpected matters in the context of s 52 of the TPA. A critical analysis of recent case law suggests that underlying various decisions are contextual factors relating to a plaintiff’s general attributes, which may enable an undisclosed matter to be viewed as unusual and unexpected. These contextual factors include: the plaintiff’s knowledge and experience, their specific transactional requirements and a previous relationship or course of dealings between the plaintiff and defendant. The author contends that the probability of establishing a reasonable expectation of disclosure increases where a defendant possesses an awareness of such contextual factors. In essence, it is argued that the more knowledge a defendant possesses about a plaintiff, the more likely it is that the defendant will have to disclose a matter that is unusual and unexpected in the context of that knowledge, in order to meet the standard of conduct required by s 52.

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