From: Nick Ferrett <>
To: Eoin.Quill <>
Jason Neyers <>
Robert Stevens <>
Date: 29/09/2015 08:35:23 UTC
Subject: Re: Volkswagen and breach of contract/tort

The US claim to which Dr O’Dell has linked indicates that the basis for the claim is that the vehicles must be modified to comply on a recall and that those modifications will result in the vehicles failing to perform to the standards advertised, that latter part being the loss suffered by the consumer.

If the facts had arisen in Australia (intentional deception of govt as to regulatory compliance, govt mandated recall to obtain compliance by modification, lessening of value as a result of that modification), it might be said to constitute a contravention of the statutory prohibition on “unconscionable conduct” in the Australian Consumer Law.  The current state of the authorities suggest that it is enough to demonstrate that the conduct in question offends current community expectations of commercial morality.  It could readily be argued that VW’s conduct fits that description, the more so when one considers the difficulties that consumers would have in informing themselves before purchase, or in obtaining compensation at law after purchase.  It also removes the necessity to prove reliance that would come with a case based on being misled.

Nicholas Ferrett
Level 33, 400 George Street, Brisbane.  4000.

+61 7 3003 0440

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From: "Eoin.Quill"
Date: Tuesday, 29 September 2015 6:14 pm
To: Jason Neyers, Robert Stevens, ""
Subject: RE: Volkswagen and breach of contract/tort

On having to be a deceived recipient of a misrepresentation for an action in deceit, authorities includePeek v Gurney (1873) LR 6 HL 377 (considering an action in equity, but clearly stating that the same principle applied to deceit at common law); Edgington v Fitzmaurice 29 Ch D 459 (1884) per Denman J at p. 467; see particularly Bowen LJ in the CA at p. 482 ‘… but it is material that the defendant should intend that it should be relied on by the person to whom he makes it… you must further shew that the plaintiff has acted upon it and has sustained damage by so doing …’

Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205, per Viscount Maugham at p. 211.’Thirdly, it must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in the manner which resulted in damage to him: Peek v Gurney and Smith v Chadwick, at p 201. If, however, fraud be established, it is immaterial that there was no intention to cheat or injure the person to whom the false statement was made: Derry v Peek, at p 374, and Peek v Gurney, at p 409.

Eoin Quill

School of Law

University of Limerick


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From: Jason Neyers []
Sent: 28 September 2015 15:50
To: Robert Stevens;
Subject: Re: Volkswagen and breach of contract/tort


There is some discussion in Commercial Banking  Company of Sydney Ltd v RH  Brown  & Co(1972) 126 CLR 337 (HCA) if I remember correctly.

Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435 

On 24/09/2015 6:23 AM, Robert Stevens wrote:

1. Deceit is an interesting issue.


Now, my understanding of deceit is that the claimant must have been deceived. So it would not be enough to show that you have been left worse off as a result of deceit if you yourself have not been deceived. The gist of deceit is being deceived, not suffering loss.


However, I don't off the top of my head know of any Commonwealth authority standing for that proposition, or the opposite (there is US authority, but there is US authority for most legal propositions.)