Avis v Mark Bain Constructions Pty Ltd

The plaintiffs, Avis, entered into contracts with the developer, Mark Bain Constructions Pty Ltd, to purchase luxury apartments off the plan. They claimed that the real estate agent, acting as an agent for the developer, made representations about an uninterrupted ocean view, which turned out to be obstructed by a new building. The plaintiffs sought damages for the developer's alleged contravention of the Trade Practices Act 1974 (Cth) by making false, misleading, and deceptive representations. The developer argued that the real estate agent was not authorised to make such representations. The plaintiffs also sought to amend their pleadings to include claims of lost investment opportunity, which the developer opposed on the basis of prejudice. Additionally, the plaintiffs sought to introduce evidence of similar representations made to a non-party, which the developer argued was not sufficiently relevant.

The court had to determine whether the real estate agent was authorised to make the representations, whether the plaintiffs could amend their pleadings to include claims of lost investment opportunity, and whether the evidence of similar representations was admissible. The court also had to assess whether the claim of lost opportunity was sufficiently certain for damages to be assessed on that basis and whether the compromise with the third-party real estate agents affected the quantum of damages.

The court found that the real estate agent had the apparent authority to make the representations about the ocean view. It also held that the plaintiffs could amend their pleadings to include claims of lost investment opportunity, despite the developer's opposition, as the amendment did not prejudice the developer's case. The court found the evidence of similar representations to be relevant and admissible. It concluded that the claim of lost investment opportunity was sufficiently certain for damages to be assessed on that basis. Lastly, the court found that the compromise with the third-party real estate agents did not affect the quantum of damages that should be awarded.

The court ordered the developer to pay the plaintiffs compensation under s 82 of the Trade Practices Act 1974 (Cth) in the amounts of $283,917 and $216,483 respectively. The court reserved the matter of interest and costs for further submissions.