Misrepresentation Act, 1972: Summary and Provisions, Lecture notes of Remedies

Download Misrepresentation Act, 1972: Summary and Provisions and more Lecture notes Remedies in PDF only on Docsity! (Reprint No. 1) SOUTH AUSTRALIA MISREPRESENTATION ACT, 1972 This Act is reprinted pursuant to the Acts Republication Act, 1967, and incorporates all amendments in force as at I October 1991. I6 should be noted that the Act was not revised (for obsolete references, etc.) by the Commissioner of Statute Revision prior to the publication of this reprint. ii Misrepresentation Act, 1972 SUMMARY OF PROVISIONS Section PART 1 PRELIMINARY 1. Short title 2. Commencement 3. Arrangement PART 11 CRIMINAL SANCTIONS AGAINST MISREPRESENTATION IN CERTAIN COMMERCIAL TMNSACTIONS 4 . Misrepresentation made in the course of a trade or business PART Ill EXPANSION OF REMEDIES AVAILABLE AT COMMON LAW AND IN EQUITY FOR MISREPRESENTATION 5. Interpretation 6 . Removal of certain bars to rescission 7 Damaees for misreoresentation 8 . ~xclu$on clauses ' 9. Application of Part PART IV AMENDMENT O F THE SALE OF GOODS ACT, 1895-1952 10. Short titles 11. Amendment of principal Act, s. I1 - Where conditions to be treated as warranty 12. Amendment of principal Act, s. 35 - Acceptance Misrepresentation Act, 1972 PART I1 3 (5) Where a body corporate is guilty of an offence under this section, each member of the governing body of the body corporate who knowingly authorizes, suffers or permits the commission of the offence shall be guilty of an offence and liable to a penalty not exceeding five hundred dollars. (6) This section does not affect any civil remedy, or any other statutory sanction or remedy, in respect of a misrepresentation. (8) Proceedings for an offence against this section shall be disposed of summarily. (9) Proceedings for an offence against this section shall 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 shall be accepted as proof of that consent in the absence of evidence to the contrary. PART 111 4 Misrepresentation Act, 1972 PART I11 EXPANSION O F REMEDIES AVAILABLE AT COMMON LAW AND IN EQUITY FOR MISREPRESENTATION Interpretation 5. In this Part- "court" includes an arbitrator. Removal of certain bars to rescission 6. (1) Where a misrepresentation has been made by reason of which any party to a contract would, but for any one or more of the following considerations- (a) that the misrepresentation has become a term of the contract; (b) that the contract has been performed; (c) that conveyances, transfers or other documents have been registered at any public registry office in pursuance of the contract, be entitled to rescind the contract, that contracting party shall be entitled to rescind the contract notwithstanding that consideration or those considerations. (2) This section does not invest a contracting party with a right to rescind a contract where, in equity, such a right would be barred by reason of the fact that a third party has in good faith and for valuable consideration acquired an interest in the subject-matter of the contract. (3) This section shall not affect any remedy available under the provisions of the Land Agents Act, 1955-1964, or the Bilsiness Agents Act. 1938-1963. Damages for misrepresentation 7. (1) Where a contracting party is induced to enter into a contract by a misrepresentation made- (a) by another party to the contract; (b) by a person acting for, or on behalf of, another party to the contract; (c) by a person who receives any direct or indirect consideration or material advantage as a result of the formation of the contract, ( and any person (whether or not he is the person by whom the misrepresentation was made) would, if the misrepresentation had been made fraudulently, be liable for damages in tort to the contracting party subjected to the misrepresentation in respect of loss suffered by him as a result of the formation of the contract, that person shall, subject to subsection (2) of this section, be so liable to that contracting party, in all respects as i f the misrepresentation had been made fraudulently and were actionable in tort. ( (2) It shall be a defence to an action under subsection (1) of this section- (a) that the person by whom the representation was made had reasonable grounds to believe, and did believe, that the representation was true; Misrearesentation Act. 1972 PART 111 5 (b) that the defendant was not the person by whom the representation was made and did not know, and could not reasonably be expected to have known, that the representation had been made, or that it was untrue. (3) Where in any proceedings before a court, it is proved that a party to a contract has rescinded, or is entitled to rescind, the contract on the ground of misrepresentation, the court after consideration of the consequences of rescission, and the consequences of a declaration under this section, in the circumstances of the case, may, if it considers it just and equitable to do so, declare the contract to be subsisting and award such damages as it considers fair and reasonable in view of the misrepresentation. (4) A declaration under subsection (3) of this section shall have effect according to its terms and shall be a bar to rescission. (5) Where a contract has been rescinded but is subsequently declared to be subsisting under subsection (3) of this section, the respective rights and liabilities of the contracting parties shall be determined in all respects as if the contract had never been rescinded. (6) In assessing any damages under this section, a court shall take into consideration any award of damages under any other provision of this section, or of damages or compensation under any other law, and in assessing damages or compensation in any proceedings under any other law relating to a contract, a court shall take into consideration any award of damages under this section. Exclusion clauses 8. If any contract contains a provision that would, but for this section, exclude or restrict- (a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; (b) any remedy available to another party to the contract by reason of such a misrepresentation, that provision shall be of no effect except to the extent (if any) to which, in any proceedings arising out of the contract, the court may allow reliance on it as being fair and reasonable in the circumstances of the case. Application of Part 9. This Part shall not apply in relation to a misrepresentation, or a contract, made before the commencement of this Act.