Misleading or deceptive conduct is conduct prohibited under section 18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) and equivalent provisions in state fair trading legislation. It applies to representations made in the course of trade or commerce, including representations made by sellers to buyers in M&A processes.
Liability under section 18 is strict (it does not require fraud or negligence) and cannot be fully excluded by contract. In M&A, misleading or deceptive conduct claims are often pursued by buyers as an alternative or supplement to warranty claims, particularly where the warranties are heavily qualified or the basket and cap limit recovery.