MISREPRESENTATION ACT 1972 - SECT 4

MISREPRESENTATION ACT 1972 - SECT 4

4—Misrepresentation made in the course of trade or business

        (1)         Where, in the course of a trade or business, a misrepresentation is made by the person by whom the trade or business is conducted, a person duly authorised to act on his or her behalf, or a person acting in the course of his or her employment—

            (a)         for the purpose of causing or inducing any other person to enter into a contract; or

            (b)         for the purpose of causing or inducing any other person to pay any pecuniary amount, or to make over or transfer any real or personal property, to the person by whom the representation is made or any other person,

the person by whom the trade or business is conducted, and the person by whom the representation is made, are each guilty of an offence.

Maximum penalty:

            (a)         in the case of a body corporate—$100 000; or

            (b)         in any other case—$20 000.

        (2)         Where in any proceedings under this section it is proved that a misrepresentation in fact acted as a material inducement to any person—

            (a)         to enter into a contract; or

            (b)         to pay any pecuniary amount, or to make over or transfer any real or personal property, to the person by whom the representation was made, or any other person,

and that, in consequence, the person by whom the representation was made, or a person on whose behalf, or in whose employment, that person was acting, derived any direct or indirect consideration or material advantage, it will be presumed, in the absence of proof to the contrary, that the representation was made for the purpose of inducing the person to whom it was made to enter into that contract, to pay that pecuniary amount, or to make over or transfer that real or personal property, as the case may require.

        (3)         It is a defence to a prosecution under this section—

            (a)         that the person by whom the representation was made believed upon reasonable grounds that the representation was true; or

            (b)         where the defendant is not the person by whom the representation was made—

                  (i)         that the defendant took all reasonable precautions to prevent the commission of offences against this section by persons acting on his or her behalf, or in his or her employment; or

                  (ii)         that the defendant did not know, and could not reasonably be expected to have known, that the representation had been made, or that it was untrue.

        (4)         For the purposes of this section a representation constitutes a misrepresentation if it is false in any material particular.

        (6)         This section does not affect any civil remedy, or any other statutory sanction or remedy, in respect of a misrepresentation.

        (9)         Proceedings for an offence against this section must not be commenced unless the Attorney-General has consented to the commencement of those proceedings.

        (10)         In any proceedings for an offence against this section, an apparently genuine document purporting to record the consent of the Attorney-General to the commencement of those proceedings will be accepted as proof of that consent in the absence of evidence to the contrary.