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Ascertaining when loss is first suffered by misleading conduct : relevance of contingencies, future predictions and concealment

Christensen, Sharon A. & Lumb, Stephen R. (2005) Ascertaining when loss is first suffered by misleading conduct : relevance of contingencies, future predictions and concealment. Trade Practices Law Journal, 13(3), pp. 149-162.

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Abstract

The seminal case in the context of limitation periods under the Trade Practices Act 1974 is the High Court decision in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514. While the High Court concluded that a plaintiff should not be required to commence a claim until the existence of his or her loss is ascertained or ascertainable, the decision was limited to consideration of contingent loss under an indemnity. While it is accepted that the meaning of 'ascertainable loss' in the context of a pure contingency is clear, several decisions since Wardley have applied the principle of ascertainable loss to losses which are not readily identifiable as 'contingent'. This article critiques the concept of 'ascertainable loss' with the aim of determining whether the conceptual framework for ascertaining when the relevant limitation period commences should adopt ‘contingent loss’ as its core principle or a broader concept based on ‘ascertainable loss.’

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ID Code: 2228
Item Type: Journal Article
Keywords: misleading conduct, limitation periods, contingent loss
ISSN: 1039-3277
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Commercial and Contract Law (180105)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Copyright Owner: Copyright 2005 Sharon A. Christensen and Stephen R. Lumb
Deposited On: 03 Oct 2008
Last Modified: 29 Feb 2012 23:15

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