Borzi Smythe Pty Limited v Campbell Holdings (NSW) Pty Limited

[2008] NSWCA 233

NSW Court of Appeal

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Interrogate

Catchwords

1. Trade Practices
2. › Misleading and deceptive conduct
3. › Section 52 Trade Practices Act 1974 (Cth)
4. › Agent passing on false information from principal
5. › Whether agent adopted or endorsed truth of representation
6. › Whether implied disclaimer
7. › Whether agent mere conduit of information
8. › Trade Practices Act 1974 (Cth), s 52
1. Trade Practices
2. › Misleading and deceptive conduct
3. › Damages
4. › Purchase of property at overvalue
5. › Whether damage established
6. › No valuation evidence called
7. › Whether difference between earlier offer and price paid sufficient to establish loss
8. › Trade Practices Act 1974 (Cth), s 82

Quick Take

A real estate agent who passes on information about competing offers, identifying the source of the information (e.g., 'Mr Butler tells me that...'), may be found to have impliedly disclaimed endorsement of the truth of that information, particularly where both parties are experienced agents. The implied disclaimer can be found in the conduct of the representor, the words used, the nature of the parties, and the character of the transaction, without requiring an express disclaimer. A claim for damages for purchase at overvalue requires evidence of the value of the property at the date of purchase; the difference between an earlier offer and the price paid is not sufficient.