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Section 6 of the CRA 1979 allows [plaintiff] to sue [defendant] for misrepresentation. If a misrepresentation
is present, then the misrepresentation will become a term of the contract and [plaintiff] will be able to get
damages if the misrepresentation were a term of the contract.
4. Inducement
Purchaser knew about representation, AND, believed it to be true, AND, because of that, entered
into the contract
e.g. On the facts of the case, [purchaser/plaintiff] purchased the [matter] because [usually will have a
line in the case to quote, for example, [purchaser] liked what they saw and heard]. The statements
need not be the sole inducement (Emslie).
Was Purchaser aware of the statement?
If they didnt know about it, it couldnt have affected their decision to enter into contract
Upham v Bardebs (1927), farm bought in auction case, misrep
Did Purchaser know of the misrep before entering into contract?
If so, no misrep
Was there an investigation (or lack thereof), and thus has Purchaser still been induced?
No investigation
Purchaser has no duty to investigate, misrep
Redgrave v Hurd (1881), young solicitor case, misrep
Investigation (by purchaser or by experts)
Then false statement is ignored, misrep
Attwood v Small (1883), mines investigated by experts case, misrep
Conclusion:
The clause is part of the contract as the signing rule applies. The acknowledgement clause excludes the
liability of the vendor by saying that [summary of clause].
The clause is not automatically conclusive as section 4 of the CRA allows the courts to consider whether it
is fair and reasonable that the clause should apply. The court in Herbison said that in determining whether
the clause is conclusive, all the factors should be should be looked at globally and weighed against each
other.
Conclusion
e.g. [Purchaser] can sue for misepresentation
e.g. [Purchaser] cannot sue for misrepresentation
Second Part of Question: Can Purchaser sue Agent (typically real estate) under FTA?
Issue: Can [Agent of Vendor] be liable for misleading and deceptive conduct under s9 of the FTA?
Conclusion:
e.g. [purchaser] can sue [agency] for misleading and deceptive conduct
e.g. [purchaser] cannot sue [agency] for misleading and deceptive conduct