While it is not a separate tort action, there are a few property cases under the Torrens system involving someone's registered title being defeasible because of "fraud" (in NSW under s 42 Real Property Act but there are no doubt equivalents elsewhere) and in some cases it has been held that to promise one would acknowledge a prior unregistered interest, knowing that one never intended to keep the promise, can be regarded as "fraud" for these purposes. Loke Yew v Port Swettenham is a Privy Council authority on the point; in Australia the issue was discussed in Bahr v Nicolay in the High Court but the case was decided by the majority on other grounds.
Regards
Neil


Sent using OWA for iPad

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From: Barry Allan <barry.allan@otago.ac.nz>
Sent: Friday, 28 November 2014 8:46:26 AM
To: Jason Neyers; obligations@uwo.ca
Subject: RE: Promissory Fraud

 

In Australia and New Zealand (possibly other jurisdictions but I can't speak for them) we would not need a tort to do this as it is covered by the Trade Practices/Fair Trading Act prohibitions of misleading conduct. There was a case in the Australian Federal Court in 2002 which was concerned with contractual promises made when there was allegedly no intention or ability to carry them out: Concrete Constructions Group Ltd v Litevale PTY Ltd (2002) 170 FLR 291. My notes of the case say:

"Mason P started by noting that a mere failure to keep a promise is not itself misleading or deceptive conduct, as the question of breach must be considered as at the time the conduct is engaged in, and not by reference to subsequent events.  There needed to be an absence of belief by the defendant in the truth of the statements and no element of reckless indifference to their accuracy rather than a simple promise by the defendant that it would pay a certain sum of money on a particular event."

I have a funny feeling there's another but can't put my hands on it.

Barry

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From: Jason Neyers [jneyers@uwo.ca]
Sent: Friday, 28 November 2014 9:51 a.m.
To: obligations@uwo.ca
Subject: ODG: Promissory Fraud

Dear Colleagues:

 Does anyone know of any Commonwealth discussion of the American doctrine of promissory fraud? I have searched all the UK, Canadian and Australia databases and have come up with only one 'hit'. In the case of Lozinik v Sutherland,  2012 ABQB 440, the judge said this:

57     Promissory fraud can arise in situations where a promise was made by someone when he or she did not intend to perform the promise when it was made. The tort of promissory fraud does not appear to have been mentioned in a Canadian decision at any level of court. It is a common cause of action in the United States, however, it does not currently provide a basis for a cause of action in Canada.

Is there something I'm missing?

Sincerely,

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