74 It should be noted here, that, when she dealt with the question of the representations - whether for the purposes of the provisions of the Fair Trading Act 1987, or the claim of fraudulent misrepresentation raised against Mr Scarborough - Sidis DCJ did not deal with the relevance, or otherwise, of the provisions of conditions (3), (4) (a), (b), and (6) of each of the Agreements for Sale. In their Notice of Appeal (RAB 67-71), the Appellants did not assert that her Honour erred in not holding that, by reason of the provisions of those conditions, the Respondents were not entitled to rely on any of the alleged misrepresentations. That fact notwithstanding, in their Written Submissions (Orange AB 12), the Appellants have sought to assert that "reliance upon the pre-contractual representations was disallowed by the purchaser when it acknowledged in cl 3 of the Sydney contract that it had not relied on any statement, representation or warranty other than as specifically contained in the Contract (RAB 51T). The Melbourne and Brisbane Contracts (signed on 15.2.98 contained identical clauses)" despite the fact that it would appear that no such submission was advanced on behalf of the Appellants at trial. It should, however, be noted that at common law, a plaintiff who, in deciding to enter into a contract, was acting upon a representation made by the defendant, which representation has been made fraudulently, is not to be held bound by a provision such as that contained in cl 3, 4 (a), (b) of the Agreements for Sale (S. Pearson & Son Limited v Lord Mayor &c of Dublin [1907] AC 351), and, further, that the courts have been consistent in ruling that attempts to exclude liability for breach of the Trade Practices Act 1974 (Cth) s 52, or its Fair Trading Act equivalents, will be unsuccessful. That this is so is demonstrated by the following passage in the judgment of Sheppard J, with whom Fox J and, in this respect, Jackson J, agreed in Clark Equipment Australia Limited v Covcat Pty Limited ((1986-1987) 71 ALR 367, 371)):
"Parties may agree that statements and representations made antecedently to their entering into a contract are not to form the basis of any remedy in the event of there being a subsequent disagreement. Except in cases of fraud, the common law will give effect to their contract. But the remedy conferred by s 52 of the Trade Practices Act will not be lost, whatever the parties may provide in their agreement. If a vendor of goods has engaged in misleading or deceptive conduct, the law makes him accountable for loss and damage suffered as a result of his 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 it lies. The terms of the contract are irrelevant. As Wilcox J said in Petera Pty Ltd v EAJ Pty Ltd (1985) 7 FCR 375 at 378:
'Whatever may be the effect of cl 19 (the exemption clause in that case) in relation to an action brought in contract, in which reliance is placed upon an alleged warranty or condition not included in the contract of sale, that clause should not be allowed to defeat a claim based upon s 52. To permit such a clause to defeat such a claim would be to accept the possibility that a vendor might exacerbate his deception, as by actively misleading a purchaser as to the existence or nature of such an exclusion, and thereby ensure that he would escape liability'.
I refer also to Byers v Dorotea Pty Ltd (1986) 69 ALR 715; [1987] ATPR 40-760, per Pincus J at 48-230".
So, too, in Henjo Investments Pty Ltd v Collins (Marrickville) Pty Ltd ((1987-1988) 79 ALR 83, 98-99), Lockhart J, with whom Burchett J and, on this aspect of the matter, Foster J, agreed, said:
"Irrespective of the construction of these two special conditions it does not matter ultimately whether the impugned conduct with which this case was concerned falls literally within them or not. Section 52 is a section in the consumer protection provisions of an Act concerned to protect the public from misleading or deceptive conduct and unfair trade practices which may result in contravention of the Act. It has been held that exclusion clauses of which Special Conditions 6 and 7 are examples, cannot operate to defeat claims under s 52. It may be, as the judgment of Sweeney J in P J Berry Estates Pty Ltd v Mangalone Homestead Pty Ltd (1984) 6 ATPR 40-459 at 45, 638 suggests, that such exclusion clauses will generally be ineffective because they cannot break the nexus between the conduct in contravention of s 52 and the making of the agreement in issue. Where the conduct of the defendant is alleged to be fraudulent in character, then an exclusion clause will be no more effective to defeat the action than it would be effective if the action were brought in the tort of deceit in relation to conduct antecedent to the contract: Commercial Banking Co of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337, per Menzies J at 344; Petera Pty Ltd v EAJ Pty Ltd (1985) ATPR 40-605, per Wilcox J at 46, 887: see also Terry: 'Disclaimers and Deceptive Conduct' (1986) Australian Business Law Review p 478 at 486.
There are wider objections to allowing effect to such clauses. Otherwise the operation of the Act, a public policy statute, could be ousted by private agreement. Parliament passed the Act to stamp out unfair or improper conduct in trade or in commerce; it would be contrary to public policy for Special Conditions such as those with which this Contract was concerned to deny or prohibit a statutory remedy for an offending contract under the Act. There are various judgments of Judges of this Court where this approach has been adopted and they are collected in the judgment of the trial Judge, so I need not repeat them".