It is wrong to engage in “misleading and deceptive” conduct but as a business associate, neighbour, partner (romantic or otherwise) who hasn’t? It may have been trivial, or alternatively you didn’t get caught but it goes on all the time. In business, one man’s misleading and deceptive conduct is another man’s smart move unless the deceived and misled get very upset and sue which happens, especially if they lose money.

In any event, it is still more convenient to blame others for your business failures and, therefore, in Australian litigation allegations of “misleading and deceptive conduct” abound.

Sometimes statements of future intent do not come to pass, and the onus is on the defendant to prove it was a reasonable representation in the circumstances. For instance, a statement such as  “Of course, I will always love you" even if you ended up hating her guts would be reasonable if said in the passionate throes of young love but probably not on the first date.

Provided a shopping centre landlord can show it was reasonable in the circumstances to attract tenants with promises of refurbishments and promotion it will not be liable if they do not come to pass. For instance, the landlord’s intended development application being refused.

In order to claim damages, you must have made the loss, as a result of the misleading and deceptive conduct. For instance, if you did not believe the estate agent’s patter it probably did not induce you to enter the contract and therefore you have no claim against the estate agent when it turns out that the garden was not landscaped by Capability Brown.

You do not need to prove that the conduct was intentionally duplicitous, but it is easier if you do. Fortunately, those who outfox others like to write it down, maybe in a book or the increasingly popular, but comparatively modest email or text, that they can be pressed to disclose in a court action.

* See s18 Competition and Consumer Act 2010