Facts: Ramensky bought a home unit which was to be built on a block of land in Queensland. Ramensky inspected the land, which was accessible by means of a driveway. However the driveway was built on public land, and although a licence for its construction had been applied for, the licence had not yet been granted. Demagogue failed to disclose this fact and when Ramensky found out about it, he sued to have the contract made void for breach of section 52 of the TPA.
Issue: Did Demagogue's silence regarding the driveway amount to misleading conduct?
Decision: In the circumstances, Demagogue's silence was misleading conduct. Accordingly the contract should be made void and the deposit repaid.
Reason: The situation regarding the driveway and access rights was unusual, and Demagogue's silence led Ramensky to believe that there was nothing unusual involved. This was false, and constituted misleading conduct. The court said (at 32):
"Silence is to be assessed as a circumstance like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive. To speak of 'mere silence' or of a duty to disclosure can divert attention from that primary question. Although 'mere silence' is a convenient way of describing some fact situations, there is in truth no such thing as 'mere silence' because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed."