LIABILITY OF CORPORATE REPRESENTATIVES FOR MISLEADING OR DECEPTIVE CONDUCT REVISITED.

A corporate representative may be liable for misleading or deceptive conduct in one of two ways: by contravening s 9 of the Fair Trading Act 1986 (principal liability); or by assisting the corporation to contravene s 9 (accessorial liability). This article is concerned only with the former. The courts of New Zealand, when addressing the issue of when a corporate representative may be liable as a principal for misleading or deceptive conduct, have tended to focus on the "in trade" requirement of s 9 of the Fair Trading Act 1986. They have identified "broad" and "narrow" approaches to this question, based on whether the requirement is confined to the conduct of a person who trades on his or her own account or includes a person whose conduct is on behalf of another party, such as a company. We discuss these approaches, as highlighted in the Court of Appeal decision in Body Corporate 202254 v Taylor, a case recently referred to by the Supreme Court in Dallas v Wellington City Council. We argue that the broad/narrow debate on the meaning of "in trade" should be irrelevant to principal liability for a corporate representative. Instead of focusing on the meaning of "in trade", we argue that the focus should be on who has engaged in the impugned conduct: the corporation or the individual? Such an approach would align with the "mere conduit" principle, under which the focus is on who has engaged in the impugned conduct: the conduit or the originator? [ABSTRACT FROM AUTHOR]