Misleading conduct; meaning of 'in trade or commerce'.
Facts: While Taylor and Crossman were engaged to be married and were considering buying a marina business to operate together, Taylor made a series of statements to Crossman to convince her to provide the initial finances required. These statements concerned how both would share the expenses in buying and setting up the business, how they would make decisions about the business, and how the marina business would be run. Taylor later admitted that his statements had been misleading, but argued that they had not been made 'in trade or commerce', because the statements had been made before the parties formed a company and trust to purchase and run the marina business.
Issue: Had the statements been made 'in trade or commerce', for the purposes of liability under s 56 of the Fair Trading Act 1987 (SA) (equivalent to s 18 of the Australian Consumer Law)?
Decision: The statements had been made 'in trade or commerce'. They were not merely in connection with trade or commerce, and were not of a private nature.
Reason: Cowdroy and Flick JJ said (at [47], [49], [52]):
"[T]he representation[s] fell within trade or commerce, in that they related to conduct of a business, of its financing and of its operation, even though the business had not yet commenced in the name of the company… In these circumstances it is immaterial that the company did not exist at the time that the representations were made… Further, it is not determinative that the parties were engaged to be married and proposed to live together. The focus must be directed to the statements concerning the business operations which the appellant made to the respondent concerning its establishment, operation and financing. Such statements were not of a private character but related to the business venture".