(x) Anna Clancy shortly after 25 October 1997 before entering into the contract telephoned Mrs Corrigan during which Mrs Corrigan made statements to her about the Property which included a statement to the following effect: "there is undercover parking at the back of the house which can be accessed via a lane at the back", following which Anna Clancy conveyed that information to Mrs Clancy, making an appointment for her mother to go to the Property with Mrs Corrigan; see Affidavit of Anna Clancy of 20 May 1999, para 6 attesting to the conversation with Mrs Corrigan and at para 7 attesting to her discussion with her mother, and para 8 attesting to the appointment being made with Mrs Corrigan, with paras 6 and 8 being admitted by Mrs Corrigan in her affidavit of 18 August 1999, para 19.
63 To this, the First Defendant seeks to take protection against any claim for fraudulent misrepresentation or misleading and deceptive conduct behind a series of arguments. The first argument is to say that access was unimpeded at the time of the contract, in a de facto sense. Though thereafter capable of termination at any time, the Plaintiff was able to approach the Court under s88K of the Conveyancing Act for a compulsory easement, by paying a sum the Court as agreed or determined. The second argument shelters behind the agent's authority being "limited to the contract". The contract "indicated there was no right-of-way to the lane". This was in circumstances, says the First Defendant, where Mrs Clancy had need of explanation from her solicitor Mr Fraser that there was no right-of-way.
64 The first argument is readily refuted, by the circumstances of the way in which the Property was marketed to Mrs Clancy, the appearance of the back lane and the representations that were made to her. The effect of these is that neither she nor her solicitor had any reason to suppose that there was any need for a right-of-way to the lane, it having all the appearance, reinforced by the position of the garage, of public access. Moreover, to argue that, at the time the contract was entered into (though not, be it noted, at completion), access was de facto unimpeded, is specious. Access was capable of denial at any time. That is not "unimpeded access". It is impeded by the lack of any right of access. If the Eatons had exercised their rights, the Plaintiff could have been removed as a trespasser every time she entered the lane. Her position was not even as strong as the "tolerated trespasser", actually permitted by the owner to remain in possession for an occupation fee, pending execution of a writ of possession; compare Pemberton v Southwark LBC [2000] 1 WLR 1672. That no action were taken, till prior to completion merely emphasises how illusory was the so-called access. In short it is true that the plaintiff needed explanation as to the true position. But the responsibility for that could not be on her or her solicitor, when there was no reasonable way either could be expected to know the true position, misled as they were by the vendor and his agent.
65 Second, it is a distortion of the true position to describe the agent's authority as "limited to the contract"; see First Defendant's written submissions of 12 October 2000 at para 7. Quite clearly the evidence shows that the agent's authority extended to marketing the property in accordance with the listing agreement of 28 June 1997 (Annexure A to Mrs Corrigan's affidavit of 18 August 1999). Notably the selling agency agreement did not annex a copy of the contract, simply referring to sale being "as per contract".
66 Thus the agent was acting within the scope of her apparent authority when she made the representations earlier set out, even if contrary to my earlier findings, it were the case that the principal Mr Prince was unaware of any such representations. In fact I am satisfied the evidence is clear that he was sufficiently aware of the representations contained in the advertisements. Moreover, he did nothing to prevent his Agent via those advertisements continuing to hold out that there were "two entrances, parking" or words to similar effect including the brochure which I infer was also issued with Mr Prince's knowledge and certainly with his authority. Thus the agent was acting within actual authority, nor merely apparent authority. Legal responsibility for his agent's acts can thus be readily attributed to Mr Prince; see the principles in 61(6)(i) above.
67 Indeed Mr Prince's knowledge goes further as Mrs Corrigan deposed to a conversation between herself and Mr Prince on 30 October 1997 in her affidavit of 18 August 1999 (para 12). Mr Prince did not deal with that conversation in his first affidavit of 17 July 2000 but only dealt with it in an affidavit sworn on 28 July 2000 (paragraph 14). Whilst in that affidavit he specifically denies saying the words attributed to him in Mrs Corrigan's affidavit, importantly he does not dispute, as one would expect him to do if there were a genuine dispute, what she said to him in particular, namely, "Mrs Clancy will pay $385,000. I will issue a sales advice. I have not mentioned the right-of-way problem."
68 In his cross-examination, Mr Prince says that he cannot recall whether or not Mrs Corrigan told him that Mrs Clancy had not been informed of the right-of-way problem although at one point he appears to be denying that he was so told; see T, 97.41-.46 and again T, 104.53 - 105.46 where he says he does not recall being told this.
69 The fact of the matter is that Mr Prince stood by well knowing that there was an access problem. He chose to have a contract issued on his behalf which made no mention of the lack of access and the need for a right-of-way and allowed the earlier mentioned representations to remain unchecked until recent times. Mr Prince's treatment of the Plaintiff in doing so was not merely sharp; it was deliberately deceptive, with the Agent at first acquiescing, once she became aware of the true facts, only later coming clean.
70 But do the terms of that contract obviate the effect of the representation made or any misleading or deceptive conduct? First, it is necessary to deal with a variant of the first argument. Was the representation limited, as the First Defendant argues, to a representation as to the (practical) availability of access up until the time it was terminated, in fact on 30 October 1997, with the corollary that this means that the representation was wholly fulfilled? One only has to state the argument to see that it is utterly without merit. Quite clearly the effect of the representation as reasonably understood and reflected in the earlier sequence of events and the way the laneway presented itself was that access was a public one, requiring no right-of-way, nor act of grace in not interfering with access on the part of its true owner; certainly not a laneway terminable at will. One would hardly expect the purchaser's solicitor to be alerted to what was in truth a deliberately concealed trap. That deliberate concealment was reflected in the contract, under which the vendor, well aware of the lack of legal access, simply does not disclose that fact or the need for a right-of-way in consequence. This was in circumstances where the preceding events to the contract instigated by the Defendants, including the advertisements and the position of the garage, were calculated to induce an unsuspecting purchaser to enter into a contract on the expectation that the purchaser was assured of access to a garage. In the First Defendant's case, I have no doubt this was done quite deliberately. For Mr Prince well knew the true position as his own earlier experience in purchasing the property demonstrates.
71 Turning to the contract itself, the First Defendant seeks shelter behind its terms, including in particular, clause 10.1.5 and special condition 23, earlier quoted. But for the purchaser to acknowledge that the purchaser does not rely upon "any warranty or representation made by the vendor or any person on behalf of the vendor but has relied entirely upon his own enquiries and inspection of the property" presupposes that he has not in the first place been fraudulently induced by misrepresentation to enter into that contract with its convenient acknowledgment. Essentially, Mrs Clancy as she said, was tricked into entering into the contract. This was a contract, moreover, which perpetrated a deliberate concealment of the true position, while attempting to shift responsibility on to the purchaser for its consequences.
72 The law does not countenance sharp contrivance of that kind. The position can be equated to that applicable to misleading and deceptive conduct, where contractual exemption clauses have not availed. Thus in Clark Equipment Australia Limited v Covcat Pty Ltd (1987) 71 ALR 367 at 371 Sheppard J said:
"The remedy conferred by s52 of the Trade Practices Act will not be lost whatever the parties may provide in their agreement. When vendor of goods has engaged in misleading or deceptive conduct, the law makes that person accountable for loss and damage suffered as a result of the unlawful conduct. That conduct will usually have been committed, as in this case, prior to the signing of any contract. If, as a result of the conduct, a person is induced to enter into a contract and suffers loss, an action to recover lies. The terms of the contract are irrelevant."