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[2008] NSWCA 233
Court of Appeal (NSW)
2008-05-21
Beazley JA, Basten JA
Original judgment source is linked above.
CITATION: Borzi Smythe Pty Limited v Campbell Holdings (NSW) Pty Limited [2008] NSWCA 233 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT OF: Beazley JA at 1; Basten JA at 71; Handley AJA at 94
DECISION: The appeal is dismissed with costs.
CATCHWORDS: TRADE PRACTICES ACT - s52 misleading and deceptive conduct - sale of property - agent for vendor passed on representations that higher offers had been made - representation was false - whether agent liable - implied disclaimer
LEGISLATION CITED: Trade Practices Act 1974 (Cth), ss 52
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 Butcher v Lachlan Elder Realty; Harkins v Butcher [2002] NSWCA 237; (2002) 55 NSWLR 558 Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; 202 CLR 45 Gardam v George Wills & Co Ltd [1988] FCA 194; (1988) 82 ALR 415 Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640 CASES CITED: Kizbeau Pty Ltd v W G & B Pty Ltd [1995] HCA 4; (1995) 184 CLR 281 Marks v GIO Australia Holdings [1998] HCA 69; (1998) 196 CLR 494 McAllister v Richmond Brewing Co (NSW) Pty Ltd (1942) 42 SR (NSW) 187 Orix Australia Corporation Limited v Moody Kiddell & Partners Pty Limited [2006] NSWCA 257 Potts v Miller [1940] HCA 43; (1940) 64 CLR 282 The Saints Gallery Pty Ltd v Plummer [1988] FCA 213; (1988) 80 ALR 525 Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661
PARTIES: Borzi Smythe Pty Limited (Appellant) Campbell Holdings (NSW) Pty Limited t/as Ray White (Gerringong) (Respondent)
COUNSEL: G A Sirtes (Appellant) J E Sexton SC; N Chen (Respondent)
SOLICITORS: Henry Davis York (Appellant) Tresscox (Respondent)
BEAZLEY JA BASTEN JA HANDLEY AJA
29 September 2008 Borzi Smythe Pty Limited v Campbell Holdings (NSW) Pty Limited
Headnote The appellant entered into a contract to purchase a property for $920,000. The respondent was the vendor's agent for the purposes of the sale. Mr Campbell was the principal of the respondent and carried out all dealings on its behalf in respect of the transaction. The appellant agreed to the purchase price of $920,000 after a period of negotiation, during the course of which the respondent informed the appellant that higher offers had been made by a third party. That representation, which was made on the instructions of the vendor's son, was false.
The appellant sued the respondent, alleging that its conduct was false and misleading in contravention of s 52 of the Trade Practices Act 1974 (Cth) and s 42 of the Fair Trading Act 1987 (NSW). The principal question in issue at trial was whether the respondent, in informing the appellant that a third party had made higher offers, was merely passing on information provided by the vendor, or whether it endorsed the truth of the representation.
The trial judge dismissed the appellant's claim and found that Mr Campbell, on behalf of the respondent, had done no more than pass on what was represented to him by the vendor and had made no representation as to its legitimacy.
Held per Beazley JA (Handley AJA agreeing):
Held per Basten JA (Handley AJA agreeing): 8. Where an agent passes on information identifying its source, the question is whether the applicant has established that there was an implied representation as to the truth of the information passed on: [87], [92].
On the question of damages (Beazley JA, Handley AJA agreeing): 9. The trial judge was correct in concluding the appellant had not established damage. The was no evidence of the value of the property at the date of purchase: [69]. Marks v GIO Australia Holdings [1998] HCA 69; (1998) 196 CLR 494; HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640 (both applied).
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40613/07
BEAZLEY JA BASTEN JA HANDLEY AJA
29 September 2008 Borzi Smythe Pty Limited v Campbell Holdings (NSW) Pty Limited Judgment 1 BEAZLEY JA: On 4 July 2002, the appellant entered into a contract to purchase the property, Greenvale, at Kangaroo Valley for $920,000. The respondent was the vendor's agent for the purposes of the sale. Neil Campbell was the principal of the respondent and carried out all dealings on its behalf in respect of the transaction. The appellant had agreed to the purchase price of $920,000 after a period of negotiation, during the course of which the respondent informed the appellant that higher offers had been made by a third party. That representation, which was made on the instructions of the vendor's son, was false. 2 The appellant sued the respondent, alleging that its conduct was false and misleading in contravention of s 52 of the Trade Practices Act 1974 (Cth). The trial judge, his Honour Williams DCJ, dismissed the appellant's claim. 3 The principal question in issue at trial was whether the respondent, in informing the appellant that a third party had made higher offers, was merely passing on information provided by the vendor, or whether it endorsed the truth of the representation. It was accepted that the liability of the respondent depended upon it having endorsed the truth of the representation: see Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 at 666. The respondent contended that it was merely a conduit of the information conveyed to it by the vendor through the vendor's son. 4 The trial judge, at [53], found that Mr Campbell, on behalf of the respondent, had done no more than pass on what was the represented to him by the vendor through the agency of her son, and had made no representation as to its legitimacy. 5 The appellant appeals against his Honour's finding. In doing so, except for one matter, the appellant makes no challenge to the trial judge's underlying factual findings, or to his findings on credit.
Factual background 6 Greenvale had first been put on the market in about September 2000 and was initially listed for sale through the exclusive agency of the respondent. Later, in about June 2001, the exclusive agency was terminated and Greenvale was placed with other agents, as well as with the respondent. The owner of Greenvale was Ruth Butler, but Mr Campbell at all times dealt exclusively with Ms Butler's son, John Butler. 7 At the time that Greenvale was placed on the market for sale, portion of it was leased by Max Cochrane, who owned the property next door. Mr Cochrane used Greenvale for the running of dairy cattle. In early 2002, Mr Butler informed Mr Cochrane that Greenvale was for sale. Mr Cochrane made an offer to purchase the property for $780,000 (comprising $770,000 for the realty and $10,000 for machinery): [5]. Mr Butler told Mr Campbell that Mr Cochrane was an interested purchaser and that he would deal directly with him. Mr Campbell agreed to this. Mr Cochrane was informed at some stage by the respondent's real estate agency that there was another bidder in the market. 8 The appellant, through its principal Anna Borzi, first expressed interest in the purchase of Greenvale in May 2002, having seen it advertised for sale on the internet, through the respondent's real estate agency, for $780,000. As Ms Borzi was working in Hong Kong, she appointed Byron Rose, the owner and principal of Rose & Jones Pty Limited, real estate agents, as her agent to inspect Greenvale and to negotiate for its purchase. 9 Mr Rose inspected Greenvale with Mr Campbell on 17 June 2002. 10 On 17 June 2002, Mr Cochrane increased his offer to $800,000, in the following circumstances. On 17 June, Mr Butler contacted Mr Cochrane and told him that the other interested purchaser had offered approximately $820,000 and that if Mr Cochrane increased his bid to $800,000, that would be accepted, as no commission would be payable. On 18 June, Mr Butler's solicitor sent Mr Cochrane's solicitor a contract of sale specifying a purchase of price of $800,000. Mr Butler also informed Mr Campbell of Mr Cochrane's increased offer. Mr Campbell in turn communicated that information to Mr Rose. Mr Rose then made a number of further offers on behalf of the appellant to Mr Campbell to purchase Greenvale, finally making an offer of $818,000. 11 The trial judge found that Mr Butler accepted this offer, which would give the vendor a sale price of $800,000 clear of commission. 12 His Honour also found that Mr Butler told Mr Campbell that Mr Cochrane was not going to increase his offer any further. 13 On the evening of 20 June 2002, Mr Butler telephoned Mr Cochrane and advised him that there was a competing bid of $900,000 from an internet bidder. Mr Cochrane did not increase his offer. Notwithstanding this, Mr Butler informed Mr Campbell that Mr Cochrane had increased his offer to $900,000 and that the appellant needed to increase its bid to $920,000, if it wished to buy Greenvale. The trial judge held, at [12], that Mr Campbell did not know that Mr Butler's representation, that Mr Cochrane had made an offer of $900,000, was not true. 14 There was a difference between Mr Rose and Mr Campbell as to precisely what Mr Campbell said when he conveyed the information that Mr Cochrane had made a counter-offer of $900,000. According to Mr Rose, Mr Campbell said: "Max Cochrane had made an offer of $900,000. If your client wants [Greenvale] you will have to bid higher, otherwise the property will sell for that price." 15 According to Mr Campbell, he said to Mr Rose: "Mr Butler has told me that Mr Cochrane has agreed to pay $900,000. Mr Butler said if [Ms Borzi] wants it, she will have to pay $920,000." 16 Mr Campbell said in cross-examination that he believed what Mr Butler had told him and he had no reason to disbelieve anything Mr Butler told him. Mr Campbell also said that he expected Mr Rose to accept what he had conveyed to him at face value. 17 Mr Rose informed Ms Borzi of this purported development in the sale negotiations, but in doing so, told her that he thought it "smells a bit rotten to me". Nonetheless, Ms Borzi instructed Mr Rose to make a final bid of $920,000. That was accepted, and the contract for sale was entered into. 18 None of the above is in contest on the appeal. There is a factual contest as to whether Mr Campbell informed Mr Rose that he, Mr Campbell, was not dealing with Mr Cochrane. The presiding judge, in dealing with this issue, said, at [48]: "Mr Rose said in evidence that he always understood that Mr Cochrane was dealing directly with Mr Campbell about the property. Mr Campbell says he always disclosed that Mr Cochrane was making private bids to Mr Butler and he was just passing them on." 19 The evidence on this issue was in short compass and was contained within the cross-examination of Mr Rose and Mr Campbell respectively. Mr Rose said that Mr Campbell made him aware that Mr Cochrane was potentially interested in purchasing Greenvale. He was asked whether he also knew that Mr Cochrane was negotiating directly with Mr Butler. Mr Rose responded, "Not to my - I was under the understanding that he was dealing with Neil Campbell". He said, however, that this was an "unexpressed assumption" on his part and that he had never been told, nor had he enquired of Mr Campbell, whether that was so. 20 Mr Campbell's cross-examination was as follows. First, he agreed that when he informed Mr Rose of Mr Cochrane's bid, he did not suggest to Mr Rose that he should make his own enquiries as to whether or not such a bid existed. The cross-examination proceeded as follows: "Q. And so far as you were aware, you had not previously given him any details of Max Cochrane, had you? A. I had.
Q. You had? Can you indicate where in your affidavit you suggest that you had provided Byron Rose with Mr Cochrane's contact details? A. I'm sorry, not contact details; just that Mr Cochrane was involved in the deal, sorry.
Q. You mentioned - so the height of your evidence is this, that you had made mention of the existence of Max Cochrane, but that was the full extent of it? A. Yes, that he was dealing directly with Mr Butler.
Q. Yes. Now, can I suggest to you that you never made any suggestion whatsoever in terms of what you've just said to the court, that Max Cochrane was dealing directly with John Butler? A. I did make mention of that, yes.
Q. Can I suggest to you further that at all times that you dealt with Byron Rose and the conversations that you had, in the context in which you mentioned Max Cochrane, it was simply mentioned in the context of him being a competing offeree for this property? A. Through Mr Butler.
Q. Now, I know you make that qualification, but can you explain this to the court; what relevance was it to Byron Rose as to whether or not Max Cochrane was dealing directly through John Butler or through you? A. So he knew exactly what was going on; so he knew that I would have to go back to Mr Butler to confirm where we stood. Just the normal course of business.
Q. But you never explained to him that your sole point of contact in relation to anything to do with Mr Cochrane was through Mr Butler, did you? A. Yeah, I did. " (Emphasis added) 21 Mr Campbell was then cross-examined to the effect he had not stated in his affidavit that he had told Mr Rose that he was not dealing with Mr Cochrane, or that Mr Butler was dealing directly with Mr Cochrane. At that point, the trial judge interjected, suggesting that it was implicit in para 20 of Mr Campbell's affidavit of 8 December 2006. In that paragraph, Mr Campbell deposed to the following conversation: "On or around 18 June 2002, I followed up Mr Butler again. He said:
' I have spoken to Cochrane. He will pay $780,000. You will have to cover your commission if your buyer is still interested .'
' Mr Butler tells me that Mr Cochrane is willing to pay $780,000. If Ms Borzi is going to buy she will need to pay $780,000 clear of commission, that means $800,000 . '
' I will talk to [Ms Borzi] .'" (Emphasis added) 22 Mr Campbell conceded that apart from expressing the matter in that way, he had not in his affidavit, stated in express terms that he had not told Mr Rose that he was not dealing with Mr Campbell and the that the only person dealing with Mr Cochrane on the sale was Mr Butler. There was no re-examination. 23 In his affidavit, Mr Campbell had deposed to two earlier conversations in similar terms to that in para 24 of the affidavit The first conversation was at a very early stage in the negotiations, when Ms Borzi wanted to know what price the vendor would accept. Mr Campbell told Mr Butler of Ms Borzi's enquiry. Mr Butler responded that Mr Cochrane was interested in buying and that Ms Borzi would have to pay full price. Ms Borzi then offered to purchase at $780,000. 24 Mr Butler responded by informing Mr Campbell that Mr Cochrane had offered $780,000 and that if Ms Borzi was still interested, she would have to make an offer that covered Mr Campbell's commission. Mr Campbell said he rang Mr Rose on 18 June 2001 and said: "Mr Butler tells me that Mr Cochrane is willing to pay $780,000. If Ms Borzi is going to buy she will need to pay $780,000 clear of commission, that means $800,000." 25 That conversation elicited an offer of $800,000 from the appellant, which Mr Campbell conveyed to Mr Butler. Mr Butler contacted Mr Campbell sometime later, stating that Mr Cochrane was prepared to pay $800,000 and that Mr Rose's offer would have to amount to an offer of $800,000 clear. Mr Campbell said he then rang Mr Rose and said: " Mr Butler says that Mr Cochrane is going to pay $800,000 . Your offer will need to be above that, clearing Mr Butler the same amount." (Emphasis added) 26 There was then the conversation on about 20 June 2002, when Mr Campbell stated that he rang Mr Rose and said: " Mr Butler has told me that Mr Cochrane has agreed to pay $900,000 . Mr Butler said if [Ms Borzi] wants it, she will have to pay $920,000." (Emphasis added) 27 The appellant submitted that, having regard to the evidence, there was no finding by his Honour in the terms submitted by the respondent, that is, that Mr Campbell advised Mr Rose that he was not dealing with Mr Cochrane. 28 This particular debate relates to the respondent's submissions, rather than to his Honour's findings. His Honour's findings are, relevantly, at [21]-[23] and at [52] and [53]. 29 The trial judge, at [21], referred to the respective positions of Mr Rose and Mr Campbell as to whether Mr Campbell let Mr Rose know that Mr Cochrane was in a private sale situation where commission would not be paid. At [22], his Honour accepted Mr Campbell's version of the conversation on 18 June, in respect of Mr Cochrane's offer of $780,000. His Honour also said in that paragraph that he accepted that Mr Campbell's recollection of events was better than that of Mr Rose and that where there was an irresolvable conflict, he should accept the evidence of Mr Campbell. His Honour reiterated this at [23], where he commented that he accepted Mr Campbell's recollections, because they were more detailed and more logical, having regard to other affidavits and the evidence. 30 At [52] and [53], his Honour stated: "[52] On balance of the probabilities, I accept Mr Campbell's version of the critical conversations he had with Mr Rose. In those circumstances it is difficult to clarify the information as being anything more than communicating to Mr Rose what the Vendor was representing, without adopting it or endorsing it.
[53] Even if Mr Campbell had not referred to the Vendor in his discussions with Mr Rose, as Mr Rose suggests in his evidence, does that change the nature of the information undoubtedly passed on by Mr Campbell? In my view, it does not. Mr Campbell has done no more than pass on what was represented to him by Mr Butler. He did not endorse it or adopt it. In other words, he passed on information without making any representation as to its legitimacy." 31 The respondent contends that these findings amount to a finding by his Honour that Mr Rose was advised by Mr Campbell that Mr Campbell was not dealing with and had not dealt with Mr Cochrane. The appellant submits that the finding does not support such a clear proposition. 32 In my opinion, the "critical conversations" are those which I have set out above at [21], [24], [25] and [26], that is, those conversations in which Mr Campbell communicated to Mr Rose the various offers (other than the first) purportedly made by Mr Cochrane. It is possible that his Honour's overall credit finding went beyond those conversations: see especially at [22] and [23]. However, the matter is not clear, because his Honour's expressed preference for Mr Campbell's evidence, both at [22]-[23] and at [52]-[53] was made in the context of one or more of these conversations. Accordingly, I will deal with the appeal on the basis that there were no specific statements to the effect asserted by Mr Campbell in his cross-examination. If there were such statements, I am of the opinion that would conclusively determine the appeal in favour of the respondent. 33 The question, therefore, is whether, having regard to the conversations in which Mr Campbell informed Mr Rose of the supposed offers being made by Mr Cochrane, Mr Campbell merely communicated the information given to him, without adopting or endorsing those statements. The focal conversation is the last one, relating to the purported offer of $900,000. However, the earlier conversations are relevant, in that they demonstrate a consistency in the manner of communication throughout the course of the negotiations.
The authorities 34 The starting point of the consideration of the question whether a party is liable for misleading and deceptive information that that party conveys to another is Yorke v Lucas. The issue in that case was whether an individual was liable under s 75B of the Trade Practices Act as being knowingly concerned in, or aiding and abetting a contravention of s 52. Before dealing with a party's liability under s 75B, the Court said, at 666: "It is, of course, established that contravention of [s 52] does not require an intent to mislead or deceive and even though a corporation acts honestly and reasonably, it may nonetheless engage in conduct that is misleading or deceptive or is likely to mislead or deceive … That does not, however, mean that a corporation which purports to do no more than pass on information supplied by another must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing it on for what it is worth , we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive." (Citations omitted; emphasis added)
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 35 In Butcher v Lachlan Elder Realty, the High Court endorsed this statement. The question whether an entity was liable for communicating or passing on information provided by another, which was false, was directly in issue in Butcher. The respondent real estate agency had obtained from the solicitors for the vendor of a property they were marketing, a survey diagram of the property. The survey was not accurate, in that it described a swimming pool as being wholly within the boundary of the property, whereas it extended onto reclaimed land which did not form part of the freehold estate to be sold. The real estate agency advertised the property for sale in a glossy brochure which incorporated the survey diagram, without being aware of its inaccuracy. The brochure contained a statement, in two separate places, that the information in the brochure was gathered from sources considered to be reliable, but the accuracy of the information could not be guaranteed and interested parties should rely on their own enquiries. 36 The appellants inspected the property with the respondent and were interested in purchasing it, provided that the swimming pool could be moved. They engaged an architectural designer and a builder to advise them and were told by each that provided the swimming pool was entirely within the boundary of the property, the proposal to move it was feasible. The appellants decided to proceed with the purchase and received a draft contract for the sale of the land, which had annexed to it a copy of the survey diagram. The appellants later ascertained that, as the pool was not entirely within the boundary of the property, the development consent could not be obtained to move it. The appellants commenced proceedings against the real estate agency, claiming damages for misleading and deceptive conduct. 37 In the plurality judgment, Gleeson CJ, Hayne and Heydon JJ referred to the passage from Yorke v Lucas set out above. Their Honours then stated at [39]: "In applying those principles, it is important that the agent's conduct be viewed as a whole . It is not right to characterise the problem as one of analysing the effect of its 'conduct' divorced from 'disclaimers' about that 'conduct' and divorced from other circumstances which might qualify its character. Everything relevant the agent did up to the time when the purchasers contracted to buy the … land must be taken into account. It is also important to remember that the relevant question must not be reduced to a crude inquiry: 'Did the agent realise the purchasers were relying on the diagram?' To do that would be impermissibly to dilute the strict liability which s 52 imposes." (Emphasis added) 38 Their Honours held that the agent had not engaged in contravening conduct. Rather, the agent had done "no more than communicate what the vendor was representing, without adopting it or endorsing it". Their Honours stated, at [40] ff, that this conclusion flowed from: (1) the nature of the parties; (2) the character of the transaction contemplated; and (3) the contents of the brochure itself. The evidence relevant to each of those matters was then examined. 39 The question in this case is whether, by indicating the source of the information, Mr Campbell had done enough to implicitly disclaim any belief in the truth or falsity of the information he was conveying. In Butcher, there was an express disclaimer. However, the plurality judgment endorsed the analysis of Handley JA, particularly at [47]-[48], in the Court of Appeal: Butcher v Lachlan Elder Realty; Harkins v Butcher [2002] NSWCA 237; (2002) 55 NSWLR 558. Handley JA noted that the survey diagram reproduced within the body of the brochure purported to be a copy of an original survey prepared by a professional surveyor. The brochure represented that this was an accurate copy of what the agent believed to be a genuine and correct survey diagram. Handley JA stated that in so doing, the agent made no representation as to the accuracy of the survey. His Honour said, at [47]: "The question can be tested by supposing that they handed copies of the survey report and diagram to prospective purchasers telling them, without more, that it was a copy of a survey they had obtained from the vendor. The recipients would know that the agents did not hold themselves out as professional surveyors, and had not carried out the survey themselves." 40 His Honour continued, at [48]: "The agents by proffering copies would be impliedly representing that they had an honest, or perhaps honest and reasonable, belief that the copies were genuine and recorded the surveyor's opinion on the matters disclosed. See Spencer Bower, Turner & Handley 'Actionable Misrepresentation' pp 13-14. They would also impliedly represent their belief that the report and diagram were accurate (op cit pp 11-13), but I see no good reason why they would intend to represent that it was in fact accurate, or why the recipients would think that the agents were making any such representation. In my judgment the situation is indistinguishable from that considered in Argy. " 41 In Butcher, the plurality judgment stressed the necessity of having regard to the specific circumstances of the particular case: see at [74]. This is also apparent from the judgment of McHugh J, who dissented in the result, at [109]. However, on the point in issue, namely, whether information had merely been passed on or not, his Honour, at [115], observed that the authorities indicate that in determining whether there had been a contravention of s 52, two things are important: "(1) whether the corporation assumed responsibility for or adopted (or endorsed or used its name in association with) the information so that it would be reasonable for a recipient to rely on the information; and (2) whether the corporation disclaimed any belief in the truth or falsity of the information or disclaimed any personal responsibility for what it conveyed." 42 His Honour then referred to the statement of French J (as his Honour then was) in Gardam v George Wills & Co Ltd [1988] FCA 194; (1988) 82 ALR 415 at 427: "The innocent carriage of a false representation from one person to another in circumstances where the carrier is and is seen to be a mere conduit, does not involve him in making that representation. ... When, however, a representation is conveyed in circumstances in which the carrier would be regarded by the relevant section of the public as adopting it, then he makes that representation. It will be a question of fact in each case". 43 In Butcher, their Honours, at [51], considered that it would have been plain to a reasonable purchaser from the brochure, read as a whole, that the agent was not the source of the information in it that was said to be misleading. Their Honours said that the agent did not purport to do anything more than pass on information supplied by other persons. Further, the agent had both expressly and implicitly disclaimed any belief in the truth or falsity of the information. It did no more than state a belief in the reliability of the sources.
The Saints Gallery Pty Ltd v Plummer [1988] FCA 213; (1988) 80 ALR 525 44 In The Saints Gallery v Plummer, the Full Court of the Federal Court (Morling, Pincus and Burchett JJ) held that an art gallery had not contravened s 52 in circumstances where it had informed a purchaser of the provenance of certain paintings. The paintings proved to be forgeries. 45 The purchase involved the sale of paintings, purportedly by Ian Fairweather and Lloyd Rees. The purchaser had specifically asked the gallery owner about the provenance of the paintings. The gallery owner informed the purchaser that "these two Fairweathers came straight from Fairweather direct to my client's legal firm in lieu of payment of fees". As to the Rees paintings, the gallery owner, said, "They originally came from an exhibition of Rees' work at a gallery in Brisbane. My guy is selling them because of a divorce settlement". When pressed as to what exhibition and gallery the paintings came from, the gallery owner added, "It was one of three galleries that my client had dealt with in Brisbane, but I'm not sure which one". 46 It was argued that there was no evidence of any disclaimer, as was said was required on the principles stated in Yorke v Lucas. Their Honours rejected this argument and said, at 530: "The reference in Yorke v Lucas , to an express or implied disclaimer of belief in an instruction conveyed by an agent does not involve that an agent who does believe his client, and makes that fact apparent, may not at the same time impliedly disclaim personal responsibility for what he conveys." 47 Their Honours added that, in any event, the reference to an implied disclaimer in Yorke v Lucas was not to be read as strictly as if it was a provision of a statute. Rather, the question was whether, on the proper construction of s 52, it had been breached. Their Honours concluded, at 531, that a disclaimer of any personal knowledge of the paintings' authenticity was deducible from the parties' relationship and the whole of the circumstances of the transaction, notwithstanding that the gallery owner had not disclaimed belief in the truth of what the owner had told him. The Court rejected the notion that the case could be decided on the basis that the purchaser had accepted as a fact the information the gallery owner had given him. The Court concluded, at 531: "In the particular circumstances of the case, we think it should have been held that nothing said or done on behalf of the appellant should have been taken by [the purchaser] to convey more than that the paintings' owner had represented them to have a certain origin and history; the appellant claimed no more knowledge of the matter than that. It stood in the position of an intermediary between [the seller], the source of information and the then owner of the paintings, and [the purchaser], who, like the appellant, did not check [the seller's] assertions and assumed them to be true. The matter would raise quite a different issue if [the gallery owner] were shown to have done, or purported to do, anything other than explain what [the seller] had claimed to be the facts." 48 On the appellant's argument it is necessary, in order to resist a s 52 claim in circumstances where one party conveys information to another, that there be a disclaimer, either express or implied. It is not sufficient that the person who conveys the information merely disclose that they are not the source of the information. In this case, there was no express disclaimer of a belief in the truth or falsity of Mr Cochrane having made an offer of $900,000. The appellant complains that the trial judge did not deal with the question whether there had been an implied disclaimer, but merely found, at [52], that Mr Campbell had done no more than communicate to Mr Rose what the vendor had represented to him, without adopting or endorsing it.
Orix Australia Corporation Limited v Moody Kiddell & Partners Pty Limited [2006] NSWCA 257 49 Finally, reference should be made to the appellant's reliance upon Orix Australia Corporation v Moody Kiddell. Ipp JA (Spigelman CJ and Basten JA agreeing) stated at [59], that where the alleged victim of misleading conduct was a single entity and the knowledge and understanding of the entity is that of a particular individual, the actual knowledge and understanding of the individual is "of fundamental importance". His Honour later observed, at [76], that both parties in that case were experts in their field and for that reason, no special allowance should be made for the recipient of the misleading conduct. As his Honour observed, it "was not a party in any unusual or particularly vulnerable position". At [77], his Honour commented that the respondent was a finance broker and whatever expertise it held itself out as having, that expertise "… did not include the verification of information given to it by its customers as to the existence, title and location of goods to be financed, and which it passed on …"
and that the appellant, Orix, understood that to be the case. 50 Ipp JA's comments in Orix, were a working-out on the facts of that case of the principles stated in Yorke v Lucas and Butcher.
Conclusion on whether Mr Campbell was a 'mere conduit' 51 It is apparent from the authorities to which I have referred, that a failure to make a specific finding that there was an implied disclaimer, does not necessarily signal some error or oversight in the trial judge's conclusion. The question in a case such as this is whether information has been merely passed on for what it is worth, without adoption or endorsement of its truth or falsity. If, having regard to all the circumstances of the case, the source of the information is made known and it is apparent that there has been no such adoption, then there will have been a relevant disclaimer. In other words, the disclaimer can be, and in the case of an implied disclaimer, will be, found in the conduct of the representor, including the words actually used in the communication and all other relevant circumstances, including the nature of the parties, the character of the transaction and the contents of the communication. There may be other relevant factors in a given case. 52 In this case, the question that his Honour was required to determine was whether, having regard to all the circumstances, Mr Campbell, in the express terms of his communications with Mr Rose, impliedly disclaimed any endorsement of the truth or falsity of the implication. 53 The following matters are relevant to that determination. First, the parties to the conversations, Mr Campbell and Mr Rose, are both experienced real estate agents. They would understand the language normally used in real estate negotiations and there is no special vulnerability or inexperience that would need to be taken account of in their dealings with each other. Mr Campbell was not the exclusive selling agent at the time the appellant became interested in the property, although it must be said there was no evidence that Mr Rose knew that to be the case. 54 Next, the nature of the transaction was a real estate purchase of a kind in which the respective agents were experienced. Finally there was the actual content of the communications between the two agents. It is this last factor which, in my opinion, is the central consideration. 55 One way of testing whether, in informing Mr Rose of the purported competing offers, Mr Campbell merely conveyed information without endorsing the truth or falsity thereof, is to place the competing versions of the conversations side by side. On Mr Campbell's version, he said to Mr Rose: "Mr Butler has told me that Mr Cochrane has agreed to pay $900,000". On Mr Rose's version, Mr Campbell said: "Max Cochrane has made an offer of $900,000". The competing versions of the earlier conversations had been to the same effect. 56 When the competing versions are placed side by side, it is apparent that Mr Campbell, by making specific disclosure of the source of the information, was a mere conduit of information, and that would have been apparent to Mr Rose. It would be unrealistic for Mr Campbell to expressly state in this conversation words such as, "I do not know whether or not Mr Cochrane has made this offer, but I have been told he has and I believe what Mr Butler has told me". The requirement in s 52, that a person not engage in conduct that is misleading or deceptive, does not require persons to make statements that would not be found in normal commercial discourse, in circumstances where that discourse itself makes it obvious what the position is. In my opinion, it is implicit in the conversations between Mr Campbell and Mr Rose that Mr Campbell was passing on information, and no more. He thereby implicitly disclaimed any endorsement of the truth or falsity of the information. 57 Accordingly, in my opinion, the appeal should be dismissed.
Damages 58 Strictly, it is not necessary, therefore, to deal with the case on damages. However, I will make the following brief observations on that issue. 59 The trial judge considered the appellant's claim for damages, should he be wrong on the issue of liability. The appellant had claimed at trial that she was entitled, by way of damages, to the difference between the purchase price of $818,000 that she had offered and the purchase price of $920,000 that she in fact paid. It was her contention that, but for the misrepresentation, she would not have entered into the transaction to purchase the property at a price above $818,000. The appellant called no valuation evidence. It was the respondent's case, therefore, that the appellant had failed to establish what damage had been suffered. 60 The respondent had also submitted at trial that the appellant had failed to establish that Mr Butler was ready, willing and able to sell the property at $818,000. His Honour observed, at [58], that it was not known whether Mr Butler would have accepted less than $920,000. His Honour commented, at [59], that he could only presume from the lack of evidence, particularly from Mr Rose, that the price ultimately paid was not so far above the market value as to excite any comment or warning by him to Ms Borzi to that effect. 61 In the submissions on the appeal, counsel for the appellant submitted first, that the question whether Mr Butler would have accepted less than $920,000 was neither an entirely correct question, nor was it necessarily relevant. Rather, the question that should have been asked in determining the appellant's entitlement to damages was to ascertain whether there was evidence as to what offer Mr Butler would have accepted in the absence of the deception. It was submitted that the answer to that was plain, namely, the sum of $818,000 being the purchase price that he had at one stage indicated he would accept. Further, it was submitted that there was no evidence that the sale to the appellant would not have proceeded at that price in the absence of the subsequent deceptive conduct. 62 Counsel for the appellant also drew to the Court's attention the fact that Mr Butler, who swore an affidavit in the Court below and was cross-examined, did not give evidence that he would not have sold the property for a price less than $920,000. That submission, however, begs the question, because he was not asked whether he would have sold at a lesser price. In this regard, it should also be noted that Mr Butler's evidence was that the appellant made an offer of $900,000 after he had refused an earlier offer of hers of $860,000. Mr Butler's evidence was disbelieved. Nonetheless, the appellant's counsel did not cross-examine Mr Butler to establish the point upon which he now seeks to rely, namely, as to whether he would have sold the property for less than $920,000.
The law relating to damages 63 The trial judge approached the question of damages upon the basis of the statement from the plurality judgment (McHugh, Hayne and Callinan JJ) in Marks v GIO Australia Holdings [1998] HCA 69; (1998) 196 CLR 494 at 514 [49]. It was not suggested in doing so his Honour was applying a wrong principle. To understand the principle stated in Marks, it is useful to also set out the immediately preceding paragraph in the judgment, as well as [49], being the paragraph relied upon by his Honour. It is also useful to understand the factual context in which the principle was applied. The appellant had borrowed money from one or other of the respondents. It was held that the lenders had represented that the interest rate would be calculated at a base rate, plus a margin of 1.25 per cent. It was held that the lenders had represented to the borrowers that the margin of 1.25 per cent was set and would not be changed during the life of the loan. That representation was wrong. Their Honours stated: "[48] A party that is misled suffers no prejudice or disadvantage unless it is shown that that party could have acted in some other way (or refrained from acting in some way) which would have been of greater benefit or less detriment to it than the course in fact adopted. Thus, the party that is misled will have suffered loss if a chose in action which was acquired was worth less than the amount paid for it. There may well be other ways in which it might suffer loss or damage. For example, consequential loss may be suffered. But no loss of that kind was alleged in this case and, putting that kind of loss to one side, we focus only on loss said to be suffered by the making of the contract.
[49] It is necessary, then, to determine whether the value of what was acquired is less than what was paid. How is value to be assessed? It is to be assessed objectively, not according to what either or both of the parties to the contract believed that it would obtain from the contract. That is, the value of what in fact was acquired is to be identified according to what price freely contracting, fully informed parties would have offered and accepted for it. It is only by comparison with the value assessed in this way that there can be an assessment of whether the party that is misled could have obtained some greater benefit or incurred less detriment. What is important is what that party could have done, not what it might have hoped for or expected." (Citation omitted) 64 The question of low 'value' was determined also in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640. The facts in that case are closer to the present case. There, the respondent obtained advice from the appellant valuer about the local retail tenancy market before purchasing a small shopping arcade. The respondent did not ask the valuer about the value of the arcade itself. The valuer advised that the construction of a new shopping centre nearby was not likely to adversely affect existing retail tenancy levels. The purchaser thus bought the small arcade. After the opening of the new shopping centre, the arcade suffered a collapse in gross rental value, with a concomitant fall in its value. The purchaser tried to sell the arcade without success. 65 The matter in issue before the High Court was the measure of damages to which the respondent was entitled. The Court characterised the nature of the case as one being the purchase of an asset at an overvalue. At first instance, it had been argued that the correct measure of damages, apart from consequential losses, was to deduct the value of the shopping arcade at the date of acquisition from the purchase price. 66 The Court observed, at [35], that the approach of subtracting value from price was commonly employed where the acquisition of land, chattels, businesses or shares was induced by deceit. Their Honours observed that this approach, which was sometimes described as the rule in Potts v Miller [1940] HCA 43; (1940) 64 CLR 282, had also commonly been employed under s 82 of the Trade Practices Act 1974 (Cth): see Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1; Kizbeau Pty Ltd v W G & B Pty Ltd [1995] HCA 4; (1995) 184 CLR 281. However, that rule, even in the well-accepted areas to which the Court had referred, was not universal or inflexible. Rather, it was a rule of practice: see McAllister v Richmond Brewing Co (NSW) Pty Ltd (1942) 42 SR (NSW) 187 at 192 per Jordan CJ. 67 At [36], the Court noted, relevantly for present purposes, that one of the key qualifications of the rule was that it did not depend: "… on the difference between price and 'market value', but price and 'real value' or 'fair value' or 'fair or real value' or 'intrinsic' value or 'true value' or 'actual value' or what the asset was 'truly worth' or 'really worth' or 'what would have been a fair price to be paid ... in the circumstances ... at the time of the purchase'." (Citations omitted) 68 Their Honours noted that the distinction was sometimes difficult to draw, but was "old and fundamental". Their Honours, at [37], noted a second qualification to the rule, which it said flowed from the first, namely, that the distinction between a value which answers one of the tests stated and "market value", meant that "market value" could be disregarded if it was delusive or fictitious or was a result of fraudulent or manipulative practices of the market. 69 In this case, there was no evidence of any value of the property as at the date of purchase. There was no evidence of market value, nor evidence of what Greenvale was 'really worth'. All that is known is that there were a number of offers, only one of which appears to have been not in response to a false representation, that is, Mr Cochrane's initial offer of $780,000 including equipment. The appellant has confined her case to a claim between her own offer of $818,000 which, as I have indicated, was made in response to a misrepresentation, and the amount of $920,000. However, even accepting that $818,000 was the amount the appellant was prepared to pay and that she would not have paid $920,000 but for Mr Butler's false representation, that is not sufficient, in my opinion, to establish that she has suffered damage in that amount. It does not satisfy the proper approach to the assessment of damage in a case such as this, in accordance with the principles stated in Marks and HTW Valuers. Accordingly, the trial judge was correct in concluding the appellant had not established damage. 70 It follows, on my conclusion, that the appeal should be dismissed with costs. 71 BASTEN JA: On 18 June 2002, Ms Anna Borzi, the principal of Borzi Smythe Pty Ltd, offered to purchase a property known as "Greenvale" at Kangaroo Valley for $818,000. The offer was conveyed through her buying agent, Mr Byron Rose of Rose & Jones Pty Ltd, to the vendor's agent, Mr Neil Campbell, the principal of Campbell Holdings (NSW) Pty Ltd which traded as Ray White (Gerringong), real estate agents. The vendor was Ruth Butler, but all arrangements for the sale of the property had been entrusted by her to her son, John Butler. 72 Since approximately September 2000, a neighbour, Maxwell Cochrane, had leased "Greenvale" (or part thereof) for the purpose of running cattle. He too had expressed an interest in purchasing the property and had dealings with Mr Butler directly from a time which pre-dated the engagement of Mr Campbell's business as vendor's agent. 73 Although Ms Borzi was initially told that her offer of $818,000 had been accepted, Mr Butler apparently changed his mind and notified Mr Campbell that Mr Cochrane had offered $900,000 and that Ms Borzi would need to better that offer in order to clinch the deal. She then instructed Mr Rose to offer $920,000. That offer was accepted by the vendor and the sale was effected. 74 Mr Cochrane denied making any offer over $800,000 and the trial judge accepted that he had "never offered $900,000 for the property": at [12]. He accepted, however, that Mr Butler had told Mr Campbell that such an offer had been made and that Mr Campbell believed such an offer to have been made. His Honour described Mr Butler's conduct as "merging [verging?] on the dishonest and fraudulent": at [10]. 75 The purchaser, Ms Borzi's company, sued Mr Campbell and his company for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth), s 52 and pursuant to the Fair Trading Act 1987 (NSW), s 42. It identified its loss as an amount of $102,000, being the difference between the price paid for the property and that which had been accepted, prior to the false representation. No claim was made against Mr Butler. 76 In order to succeed, the plaintiff needed to establish that the information conveyed by Mr Campbell was a representation that an offer had been made and not merely a statement that Mr Butler had told Mr Campbell that an offer had been made. In other words, the first question was whether Mr Campbell's communication indicated that he was the source of the information, or was a conduit for information supplied by others. To determine that matter, it was necessary to look at all the circumstances, including contextual matters such as the knowledge and experience of the relevant parties and the course of their communications. 77 That Mr Campbell was in fact supplying information conveyed to him by Mr Butler is not relevant: the question is whether his communication to Mr Rose, taken in context, made it sufficiently clear that there was another interested party dealing directly with the vendor. If that were not made clear, the natural inference from a statement by the vendor's agent that a particular offer had been forthcoming, would be likely to be understood by a purchaser as a statement that the offer had been made to the vendor's agent.
Relevant facts 78 The relevant contextual material was as follows:
(a) Ms Borzi knew, through a direct communication with Mr Campbell in May 2002, that the property was on the market for $780,000;
(b) both Mr Rose and Ms Borzi knew that there was another bidder, Mr Cochrane, who leased the land, or at least part of it;
(c) Mr Rose and Ms Borzi believed that her offer of $818,000, made on 18 June 2002, had been accepted;
(d) Mr Campbell told Mr Rose, and hence Ms Borzi, on about 24 June that Mr Cochrane had put in a higher bid for $900,000;
(e) Mr Rose thought, and conveyed to Ms Borzi, doubts about the $900,000 bid ("[t]his smells a bit rotten to me"). 79 There were three other key facts:
(b) the vendor's son, Mr Butler, was dealing directly with Mr Cochrane, and
(c) Mr Butler had told Mr Campbell of the alleged offer. 80 If the last three matters had been known to Mr Rose or Ms Borzi, the representation would have fallen into the category of statements made by third parties and passed on by an agent. Whether, in such a case, an agent is liable for passing on a false statement will require application of the principles identified by the High Court in such cases as Yorke v Lucas [1985] HCA 65; 158 CLR 661 and Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592. Knowledge of each of those further facts was disputed by Ms Borzi and Mr Rose, but were facts which Mr Campbell stated had been conveyed by him to Mr Rose. 81 The trial judge, Williams DCJ, accepted the evidence of Mr Campbell. Before considering the significance of his Honour's factual findings, it is convenient to consider whether the facts acknowledged to be known by Ms Borzi or her agent would have been sufficient to place Mr Campbell in the position of an agent conveying information, rather than a person who was the source of the information. 82 Where a vendor employs a real estate agent for the purpose of selling land, prospective purchasers dealing with the agent could reasonably treat statements made by the agent of the existence of offers from other interested parties as being statements as to matters known to the agent directly. In other words, the agent would be understood to be the source of the information and not a conduit for information supplied by others. Where the other interested bidder is a current lessee of the land, or part thereof, there is no doubt a possibility that the lessee is dealing directly with the vendor and not with the agent. Nevertheless, in the absence of any indication of that fact, a prospective purchaser who is told by the agent that an offer has been made, might reasonably understand the statement as indicating that the offer had been made to the agent, who was therefore the source of that information. 83 This may be described as an assumption, likely to be made by prospective purchasers and one in fact made by the present purchaser and its agent, if their understanding of what was said by Mr Campbell were correct. The assumption was credible and predictable on that factual premise, the representation was made to identified individuals, "from whom a relevant fact, circumstance or proposal was withheld", in terms discussed in Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; 202 CLR 45 at [103]. Thus, if Mr Campbell made a statement in a way which was likely to be understood as a statement deriving from his personal knowledge, the plaintiff would be likely to succeed. 84 The plaintiff did not succeed because the trial judge was satisfied that Mr Campbell had told Mr Rose, in more than one conversation, that the other bidder, Mr Cochrane, was dealing directly with the vendor. If Mr Rose had been made aware of that fact, he should have understood that Mr Campbell was purporting to pass on information supplied by Mr Butler.
Issues raised on appeal 85 Although the grounds of appeal were vague as to the precise error alleged to have been made by the trial judge, the written submissions, which were not departed from in oral argument, did not seek to challenge his Honour's factual finding, that Mr Campbell had indeed told Mr Rose that the existence of the $900,000 offer had been conveyed to him by Mr Butler. 86 Accordingly, the argument on appeal focussed on whether the trial judge had been correct to find that Mr Campbell was merely passing on information and had made no representation as to whether such an offer had been made. This was described by the appellant as the erroneous invocation of the "conduit defence". However, it is not in truth a defence at all, but merely a characterisation of the precise representation made by the defendant. 87 The language adopted by the joint judgment in the High Court in Yorke v Lucas, at 666, in the passage set out by Beazley JA at [34] above, does not suggest otherwise. Nor is it necessary, for the representor to avoid liability, for it both to identify itself as passing on information, rather than being the source of the information, and to disclaim any belief in its truth or falsity. It may be inferred, as the trial judge accepted in the present case, from the fact that an agent passes on information without comment, that the agent does not in fact disbelieve the truth of the representation. It should not necessarily be inferred that the agent is affirmatively accepting the truth of the representation in the absence of any express or implied disclaimer. Rather, it will be necessary to consider the circumstances of the particular case in order to determine the terms of the representation. The trial judge said in the present case that "it is difficult to clarify [classify?] the information as being anything more than communicating to Mr Rose what the Vendor was representing, without adopting or endorsing it": at [52]. 88 At [53] his Honour continued: "Even if Mr Campbell had not referred to the Vendor in his discussions with Mr Rose, as Mr Rose suggests in his evidence, does that change the nature of the information undoubtedly passed on by Mr Campbell? In my view, it does not. Mr Campbell has done no more than pass on what was represented to him by Mr Butler. He did not endorse it or adopt it. In other words, he passed on information without making any representation as to its legitimacy." 89 The last statement was erroneous. For reasons already given, if Mr Campbell had not conveyed to Mr Rose that he was simply passing on information supplied by the vendor, his statement might well have been taken as a representation as to his own knowledge. The fact that it was not material within his own knowledge would not alter the character of the statement. It would have properly been characterised as conduct likely to deceive or mislead because it was false. However, this passage was based on a rejected hypothesis and the error did not infect the rest of the reasoning. 90 Accordingly, to succeed, the appellant must satisfy this Court that his Honour drew the wrong inference as to the nature of the communication from Mr Campbell to Mr Rose. It is true that a simple statement that an offer had been made is a statement of fact readily within the knowledge of the agent; it did not convey the results of an exercise in professional skill and judgment by a qualified surveyor, as in Butcher. Nevertheless, by identifying the source of the information as the vendor, albeit his client, there was no reason to infer that Mr Campbell was necessarily asserting its truth. 91 The strength of the appellant's case lies not in the conveyance of the offer, but in the following statement: "Mr Butler said if Anna wants it, she will have to pay $920,000." 92 There are offers and offers: some are made by people with access to funds, some not. Mr Campbell was conveying not merely the existence of the offer, but the apparent willingness of Mr Butler to treat it at face value and require an amount 2.2% higher, in order to clinch the deal. Although this went beyond merely conveying an offer, it did not go beyond conveying the vendor's intention. In one sense, the supposed offer was a reason for demanding a figure approximately 12.5% higher than that which had been previously accepted. In other words, there may have been a demand supported by a lie, but whether the vendor's state of mind was truly reflected in the demand was patently not a matter which Mr Campbell was asserting. He was, as is appropriate for an agent, passing on his client's instructions. In the circumstances of negotiations over a sale of real estate, the willingness of one party to adhere to a stated intention is usually understood to be something which it is up to the other party to test. It would seem from his comment to Ms Borzi, that Mr Rose thought there might be room to test the strength of Mr Butler's reported position. Nevertheless, the context does not provide support for the view that Mr Campbell's communication of the offer should have been understood as doing more than conveying his client's instructions. 93 On this basis, the defendants were not liable and the appeal should be dismissed. The appellant should pay the respondent's costs of the appeal. 94 HANDLEY AJA: I agree with Beazley JA and Basten JA. **********
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Borzi Smythe Pty Limited
Campbell Holdings
(2004) 218 CLR 592
[1986] HCA 3
(2002) 55 NSWLR 558
(1988) 82 ALR 415
(1986) 160 CLR 1
(2004) 217 CLR 640
(1995) 184 CLR 281
(1998) 196 CLR 494
(1940) 64 CLR 282
(1988) 80 ALR 525
(1985) 158 CLR 661