Kendirjian v Lepore & Anor

The High Court of Australia considered an appeal from the New South Wales Court of Appeal concerning a dispute between Mr Kendirjian and the respondents, Lepore and Anor. The core of the dispute involved allegations of misleading and deceptive conduct in contravention of the *Australian Consumer Law* (ACL) and the common law tort of deceit, arising from representations made in connection with the sale of a business.

The High Court was required to determine whether the representations made by the respondents regarding the business's financial performance were misleading or deceptive, and whether these representations were made with the requisite knowledge or intent for the tort of deceit. Specifically, the court had to assess the application of section 18 of the Schedule to the *Australian Consumer Law* and the elements of the tort of deceit in the context of commercial transactions.

The Court's reasoning focused on the objective test for misleading or deceptive conduct under the ACL, considering whether the representations, viewed in their full context, were likely to mislead or deceive a reasonable consumer. Regarding the tort of deceit, the Court examined the requirement of knowledge of falsity or reckless indifference to truth. The High Court ultimately found that the representations made were not misleading or deceptive under the ACL, nor were they made with the necessary fraudulent intent to establish the tort of deceit. The Court's analysis emphasised the importance of the overall impression conveyed by the representations and the state of mind of the representor.

The High Court allowed the appeal, setting aside the orders of the New South Wales Court of Appeal and ordering that the proceedings be remitted to the primary judge for determination of the remaining issues.