Engaging in misleading and deceptive conduct can lead to serious consequences for your reputation and your business. Special Counsel Caroline Callegari explains.

Engaging in misleading and deceptive conduct can give rise to serious consequences in a number of different contexts. The main consequences of engaging in such conduct is that a contract you entered into could be found to be void and you could have to pay damages to the other party for loss and damage caused by the misleading and deceptive conduct.

The non-monetary consequences can also be very serious, such as significant damage to your business or personal reputation and/or loss of your business.

Common areas where misleading and deceptive conduct can get you into trouble include:

During contractual negotiations;
During the sale of real property;
Dealing with consumers of your products or services; and
In the relation to Intellectual Property.

We have provided below some examples of the types of conduct that can get you into trouble in these areas.These are a useful guide to assist you to know ‘what not to do’ in your dealings with other businesses, government agencies and consumers, and so as to help you avoid engaging in misleading and deceptive conduct.

They are also examples of conduct that you might be subjected to in the course of your business operations that could give rise to you having a claim against another party, such as a supplier of goods or services to your business.

Contract Negotiations

Contracts are essential in the business world. And it is rare for a contractual agreement to be reached without the parties having undergone a negotiation period.

Examples of conduct that could get you into trouble during contract negotiations include:

Deliberately withholding important information
Making a statement that fails to disclose important information
Conveying a false impression about something to do with the business
Providing incorrect information during the due diligence phase
Not correcting the other party when you know they have made a false assumption
Making a statement about a future state of affairs where you have no reasonable basis for making that statement

Property Transactions

When selling real estate, vendors should be mindful of acting honestly and in good faith regarding the condition of the property and knowledge of any current or future activities a prospective buyer would be interested to know about.

Situations where you could get into trouble include:

Failing to answer any question about the structural soundness or quality of the property honestly and completely
Not disclosing something material to a purchaser that might impact their intended use of the land, where the vendor knows what their intended use is going to be. For example, not disclosing that hazardous material has previously been used onsite or you have knowledge of an upcoming development nearby that will impact the use
Withholding reports the vendor has obtained about the property – for example, a report which discloses the risk of termite infestation
Not disclosing building work or other work done without a required building permit, planning permit or that is otherwise illegal or leading someone to believe it was done with the required permit when you know it was not
Being on notice of a future development near the site

Dealing with Consumers

If you operate own or operate a business that deals with consumers, some points to be aware of that may get you into trouble are:

Representing a product or service does something it does not
Advertising a product or service you do not supply to get people in the door to buy an alternative product
Failing to tell a consumer that the product they are buying is incompatible with other products they own, when you know they are looking for a compatible product
Not disclosing key conditions on offers
Making a health or other scientific claim about your product with no scientific backing

Trademarks, Brand associations, and Copying

A business brand and trademarks are important elements that distinguish one business from another. Brands and trademarks, therefore, have value as a measure of consumer engagement, which can ultimately provide a competitive advantage.

The law impose penalties on businesses that attempt to mislead or deceive by misappropriating the intellectual property of another business.

These situations can include:

Using a trade mark that is deceptively similar to another trade mark
Deliberately naming a business similar to another business to try and lure their customers to you
Representing you have an association with a major brand when you do not
Making your website look like another company’s website to lure customers to your site. For example, by using the same colour schemes, design or fonts.

How Sharrock Pitman Legal can help?

If you are accused of engaging in misleading or deceptive conduct, or believe another business is operating in a manner that could mislead or deceive the public and, as a result, your business has been effected, please contact our Disputes & Litigation team on 1300 205 506 or email litigation@sharrockpitman.com.au.

‍

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.‍

Written by a member of our Legal Team

Caroline Callegari

For further information contact

Caroline Callegari

Caroline Callegari is an Associate Principal and leads our Disputes & Litigation team. She has an advisory and advocacy practice in the following areas: Commercial Litigation, corporate and personal disputes, debt recovery and, insolvency and bankruptcy matters. Caroline can be contacted on (03) 8561 3324.

When is Probate not required?

Failure to Adequately Manage Cybersecurity Risks in the Financial Services Industry

Your business name is a valuable asset!

Engaging in misleading and deceptive conduct can lead to serious consequences for your reputation and your business. Special Counsel Caroline Callegari explains.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

Free Property Law webinar -

Land Development and Joint Ventures

Misleading and Deceptive Conduct - what not to do!

Engaging in misleading and deceptive conduct can lead to serious consequences for your reputation and your business. Special Counsel Caroline Callegari explains.

Contract Negotiations

Property Transactions

Dealing with Consumers

Trademarks, Brand associations, and Copying