Is Silence Still Golden? Misrepresentations in Land Dealings and The Trade Practices Act 1974 (Cwth)

Abstract

For the legal purist whose craft is distilling principles through the application of the doctrine of precedent, the appearance of an all embracing statute supplanting the common law is never a very welcome sight. It takes many years for such a statute to find a comfortable residence alongside the principles of the common law which it has modified or even virtually destroyed. Such a statute is the Trade Practices Act 1974 (Cwth). By way of analogy, it was not until 1934 that the High Court1 eventually faced up to the concept of immediate indefeasibility of registered title, cases still being argued on the basis of the principles that existed under the old deeds system. The Torrens System was about 80 years old by then. One wonders, even given the innate conservatism of the law, what might be left of general principles of contract after 80 years of the Trade Practices Act 1974 (Cwth).