A mortgage broker who recommends investment properties to clients as part of their finance broking business engages in conduct 'in trade or commerce' for the purposes of s 42 of the Fair Trading Act 1987 (NSW), even where the broker is also a vendor of the property. The prima facie measure of damages in Potts v Miller may be displaced where the resale price provides the best evidence of value and there is no evidence of extrinsic factors affecting value. Where a tape-recording is made in contravention of the Listening Devices Act 1984, the absence of evidence that the contravener knew the recording was illegal means there is no factual basis for finding the contravention was deliberate or reckless under s 138(3)(e) of the Evidence Act 1995.
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