Fraud

Question 1

What is required for the AR for fraud by false representation?

Answer 1

A representation is false if:
- It is untrue or misleading

‘Representation’ means any representation as to fact or law, including a representation to the state of mind of:
- the person making the representation
- any other person

A representation may be express or implied

Question 2

What is required for the MR for fraud by false representation?

Answer 2

• Dishonesty (Ivey v Genting test)
• MR for the false statement - D knew, or was aware, that the statement is untrue or misleading
• Intention to make a gain or cause a loss

Question 3

How can an implied representation arise?

Answer 3

• What D says
• D’s conduct

Question 4

What section of the Fraud Act covers deceiving a machine?

Answer 4

s2(5)

Question 5

What are the questions to ask when using the Ivey v Genting test?

Answer 5

1. What was the defendant’s knowledge and belief as to the facts?
2. Given that knowledge and those beliefs, was D dishonest to the standards of ordinary decent people?

Question 6

What does the AR for fraud by failure to disclose require?

Answer 6

• Existence of a legal duty
• Failure to disclose

Question 7

Examples of types of duty from The Commission

Answer 7

• Arising from statute
• Within a transaction of the utmost good faith
• Contained in the express or implied terms of a contract
• Arising from a custom in a particular trade or market
• Arising from a fiduciary relationship

Question 8

What does the MR for fraud by failure to disclose require?

Answer 8

• Dishonesty (Ivey v Genting Casinos)
• Intention to make gain or cause a loss