The form representation
34 In relation to the form representation Mr Langdon knew, in so far as the guarantee form was concerned, that it had to be properly executed and by executed that means it has to be signed (t 6.49). However, it is Mr Salmon the finance manager's evidence which is relevant to the form representation. Mr Salmon's evidence is that he believed that "by Mr Help signing as the authorised person that also covered the guarantee document" (t 16.20). The Magistrate also recorded that Mr Salmon's evidence was that accounts greater than $5,000 always required a guarantor who was also a general manager and managing director of the company. Mr Salmon admitted that Print National usually checked the credit history of a guarantor and ran a credit reference check on the guarantor and that neither occurred in relation to Mr Helps.
35 The Magistrate decided that if Print National was intending to rely on the guarantee they should have ensured that the guarantee was properly filled out before accepting Cromwell's as it customer.
36 The plaintiff's Counsel submitted that ambiguity is often why conduct is misleading and deceptive. However, in Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) ATPR 40-303 at 40-751; (1982) 42 ALR 177 at 202 the Full Federal Court stated:
"Irrespective of whether conduct produces or is likely to produce confusion or misconception, it cannot, for the purposes of s.52, be categorized as misleading or deceptive unless it contains or conveys, in all the circumstances of the case, a misrepresentation. The difficulty which will commonly arise in a s.52 case is in determining whether the conduct contains or conveys, in all the circumstances, a misrepresentation and in assessing the significance to that question of evidence that one or more persons were in fact led into error. In extreme, but not necessarily infrequent, cases, it may be correct to hold that, as a matter of law, conduct said to contravene s.52 is incapable of conveying the untrue meaning alleged or any other false meaning. Such cases aside, whether or not conduct amounts to a misrepresentation is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances…."
- see also Santow J in Brueckner .
37 As to whether Mr Helps overall conduct was misleading or deceptive, Freund LCM at [30] stated:
"…I am of the view that none of the alleged representations made by Mr Helps, as submitted by Print National, were misleading or deceptive. At their highest they were ambiguous. On the evidence before me there was nothing said by Mr Helps that was misleading or deceptive which induced Print National to enter to the agreement and provide services to Cromwell's which resulted in there suffering loss and damage."
38 Freund LCM made findings of fact that neither the telephone nor the form representation were misleading or deceptive. The Magistrate summarised the circumstances. There is evidence to support the Magistrate's findings. There is no error of law.