A misrepresentation is a false statement knowingly made with the intent to induce a subject to enter into a contract. It is not a term of the contract, and therefore cannot be actioned as a breach. Where a party has entered into a contract as a result of reliance on a misrepresentation, there is relief and remedies available.
The court will evaluate misrepresentations based on an objective approach (reasonable person test). The elements of misrepresentation are:
- The misrepresentation must have been relied on when entering into the contract
- The misrepresentation must be a statement of fact
- Statements of opinion can and often do involve statements of fact (Smith v Land & House Property Corp)
- Statements of future intention may involve statement of fact (Edgington v Fitzmaurice)
- Statements in law also apply – the distinction between fact and law has been abolished
- The misrepresentation must be positive
- A statement and not silence
- Exceptions arise where there is a duty of disclosure
The remedies available for fraudulent misrepresentation are rescission of the contract or damages. If the misrepresentation occurred in the context of a business transaction, a plaintiff may action it under section 18 of the Competition and Consumer Act 2010 (Cth) Schedule 2. This avenue allows for higher damages.