Misleading silence and s52 Trade Practices Act 1974

Miller & Associates Insurance Broking Pty Limited v BMW Australia Finance Limited [2010] HCA 31

Introduction

This recent High Court decision centred on the issue of silence or non-disclosure as misleading and deceptive conduct for the purposes of s52 of the Trade Practices Act 1974. The decision reinforces that, unsurprisingly, the precise factual background to a transaction will be of critical importance to the viability of a s52 claim.

Facts

Consolidated Timber Holdings Limited ('Consolidated Timber') retained an insurance broker, Miller & Associates Insurance Broking Pty Limited ('Miller'), to negotiate a $3.975 million loan with a financier, BMW Australia Finance Limited ('BMW'), on its behalf. The purpose of the loan was to fund the premium for a cost-ofproduction insurance policy that Consolidated Timber desired to effect to insure itself against credit risks in connection with a plantation investment scheme ('the policy').