An employer real estate agency is vicariously liable under s 84(2) of the Trade Practices Act for a sales representative's deliberate presentation of fictitious offers, where the conduct falls within the scope of the representative's employment in marketing and selling properties. Deliberate fraud by an employee should not be characterised as negligence for the purpose of assigning tortious responsibility to the employer — the appropriate cause of action is under statute. A term requiring an agent to present only genuine offers may not be sufficiently capable of precise expression to be implied under the Codelfa test. The relationship between a vendor and a real estate agent is not necessarily fiduciary, particularly where the agent has no power to enter into legal relationships on behalf of the principal.
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