Misleading and Deceptive Conduct Lawyers Brisbane

Section 18 of the Australian Consumer Law (ACL) — contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) — is one of the most powerful commercial remedies available to Queensland businesses. It prohibits misleading or deceptive conduct in trade or commerce and provides access to damages, injunctions, and other relief without requiring proof of fraud or intention.

Boss Lawyers acts for businesses and individuals pursuing and defending misleading conduct claims in Brisbane and across Queensland, including in the Federal Court of Australia, the Supreme Court of Queensland, and the District Court.

What Is Misleading and Deceptive Conduct Under the ACL?

Section 18(1) of the ACL provides: “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

Key features of s 18 liability:

• No intention required: Liability attaches to the effect of the conduct, not the defendant’s state of mind. An innocent but false statement can still attract liability.
• Silence can be misleading: Failure to disclose a material fact — particularly where there is a duty to disclose — can constitute misleading conduct.
• Conduct in trade or commerce: The conduct must occur in a commercial context. Private transactions between individuals (not in trade or commerce) generally fall outside s 18.
• Likely to mislead or deceive: There is no requirement that anyone was actually misled. If the conduct was likely to mislead, that is sufficient.
• Representation must be false: A statement of opinion may be misleading if the representor did not genuinely hold that opinion, or if the facts do not support it.

Common Commercial Contexts for Misleading Conduct Claims

Business Sale Disputes

Business sale transactions are a major source of misleading conduct claims. Sellers commonly face claims where financial representations (turnover, profit, customer base) prove to be inaccurate, undisclosed liabilities emerge post-settlement, or the vendor’s conduct during due diligence was selective or misleading.

Franchise Disputes

Franchisors must comply with the Franchising Code of Conduct (mandatory code under the ACL). Misrepresentations about projected earnings, territory exclusivity, or the nature of the franchise system are common grounds for claims under s 18.

Contract Negotiations

Pre-contractual representations that are false can ground a claim under s 18 even where no contractual promise was made. This is particularly powerful where a party relied on representations made during negotiations that were not incorporated into the final contract.

Investment and Finance Transactions

Misleading representations about the nature, value, or risk profile of an investment — including in information memoranda, term sheets, and investor presentations — can attract liability under s 18 and under the Corporations Act 2001 (Cth) (s 1041H).

Real Property Transactions

Misrepresentations about a property’s zoning, development potential, rental income, or physical condition are common in commercial property sales and can ground ACL claims.

Remedies for Misleading and Deceptive Conduct

Section 236 of the ACL allows a person who has suffered loss or damage from misleading conduct to recover that loss by action against the person who engaged in the conduct. The following remedies are available:

• Damages (s 236 ACL): Recovery of loss or damage caused by the misleading conduct. Calculated on a “reliance measure” — the plaintiff is placed in the position they would have been in had they not acted in reliance on the misleading conduct. Consequential losses are recoverable.
• Injunctions (s 232 ACL): Courts can grant injunctions to restrain ongoing misleading conduct, require disclosure, or order corrective advertising. Urgent interlocutory relief is available where harm is ongoing or imminent.
• Rescission / variation of contract (s 243 ACL): Courts can declare a contract void, vary its terms, or refuse to enforce it where it was induced by misleading conduct.
• Corrective advertising orders (s 246 ACL): Courts can order a party to publish corrective statements at their own expense.

Importantly, contributory conduct by the plaintiff (i.e., their own failure to take reasonable steps) may reduce damages under s 137B of the Competition and Consumer Act 2010 (Cth).

Frequently Asked Questions

Can I bring a misleading conduct claim if I signed a contract with an “entire agreement” clause?

Entire agreement clauses cannot exclude liability under s 18 of the ACL — they are overridden by statute. You can still bring a misleading conduct claim even if the contract purports to limit liability for pre-contractual representations.

What is the difference between misleading conduct (ACL s 18) and fraudulent misrepresentation?

Fraudulent misrepresentation (at common law) requires proof that the defendant knew the statement was false, or made it recklessly. Section 18 of the ACL does not require proof of fraud — strict liability applies to the effect of the conduct. This makes s 18 a far more accessible remedy in most commercial disputes.

Can a corporation be liable for misleading conduct by its employees?

Yes. Under s 84 of the ACL, a corporation is taken to have engaged in conduct if its officer, employee, or agent engaged in that conduct within the actual or apparent scope of their authority.

How long do I have to bring an ACL s 18 claim?

Six years from when the cause of action accrued (when the loss was suffered or became ascertainable), under s 131 of the Limitation of Actions Act 1974 (Qld) or s 6 of the relevant federal limitation regime. Complex cases may turn on when the loss accrued — seek advice promptly.

Can I bring a claim for misleading conduct in addition to a breach of contract claim?

Yes. It is common to plead both s 18 ACL and breach of contract in respect of the same facts. The ACL claim provides advantages: no need to prove the representation was a contractual term, and broader remedies including injunctions and rescission.

Why Choose Boss Lawyers for Misleading Conduct Claims

Mark Harley, Principal Solicitor, has over 17 years’ experience in commercial litigation and regularly acts in misleading and deceptive conduct claims under the ACL. Boss Lawyers has acted in disputes involving business sales, franchise systems, and investment transactions where misleading pre-contractual representations were at the centre of the dispute.

We are a boutique Brisbane firm. When you instruct Boss Lawyers, you deal with Mark Harley directly — not a team of juniors working through a workflow. Our focus is commercial, practical, and outcome-driven.

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This is general information only and is not legal advice. You should obtain professional advice specific to your circumstances.

Call Mark Harley directly: 1300 267 711 | Get in Touch