The scope and limitations of the doctrine of misleading or deceptive conduct in the context of guarantees: some perspectives and uncertainties

In this article, there is a critical analysis of the doctrine of misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth) which is frequently relied upon for vitiation by guarantors or sureties who, as a result of such conduct on the part of the lender or credit provider, have given guarantees without adequate understanding or informed consent. It looks at how s 52 allows a party who is induced to enter into a contract of guarantee by misleading or deceptive conduct may be entitled to damages from the lender (the representor) in respect of any loss or damage incurred thereby. This statutory provision is basically derived from the common law and equitable doctrines developed by the courts. Section 52 allows for a greater range of remedies for guarantors than are available under the general law and may have a greater scope in terms of the situations to which they apply. Nevertheless, s 52, in its application, is subject to a number of limitations, and it is not yet settled that it offers that much advantage over the general law.