Borzi Smythe Pty Limted v Campbell Holdings (NSW) Ltd

[2007] NSWDC 371

CITATION:	Borzi Smythe Pty Limted v Campbell Holdings (NSW) Ltd & anor [2007] NSWDC 371
JUDGMENT DATE:	17 August 2007
JURISDICTION:	Civil
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Verdict for the Defendant. The Plaintiff is pay the Defendant’s costs. Liberty to apply for any consequential orders.
CATCHWORDS:	Sale of rural property - relationship of vendor, overseas purchaser, purchaser's agent and vendor's agent - vendor misleads his agent as to private offer made - agent passes on that information to purchaser's agent - purchased at a higher price than originally agreed - proof of damages - measure of damages
LEGISLATION CITED:	s. 52 of the Trade Practices Act. Fair Trading Act
CASES CITED:	Yorke v Lucas (1985) 158 CLR 661 Butcher and Anor v Lachlan Elder Realty P/L (2002) NSWCA 237; (2004) 218 CLR 592 Orix Australia Corporation Ltd v Moody Kiddell and Partners Pty Ltd (2006) NSWCA 257, John Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd and others FCA 18/6/19 Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525 Marks v GIO Australia Holding Pty Limited (1998) 196 CLR 494
PARTIES:	Borzi Smythe Pty Limted Campbell Holdings (NSW) Ltd Neil Bruce Campbell
FILE NUMBER(S):	No 676 of 2006
COUNSEL:	Plaintiff: Mr. G.A. Sirtes Defendant: Mr. N.E. Chen
SOLICITORS:	Ms H McEwen (Henry Davis York Lawyers) Mr. T. Murray (TressCox Lawyers)

1. The Plaintiff Company is a company owned and operated by (and for which the sole shareholder is) Anna Marie Borzi. I will refer to these entities as Ms Borzi. The 1st Defendant is a Real Estate Agency owned and operated by the 2nd Defendant. I will refer to those entities as Mr Campbell.

2. This case concerns the purchase of a property called “Greenvale” by Ms Borzi through Mr Campbell. The eventual agreed price was $920,000. Mr Campbell was the agent for the owner Ruth Butler, but dealt exclusively with her son John Butler. Mr Max Cochrane was the owner of an adjoining property and leased “Greenvale” for running diary cattle. Phillip Broad of A.P. Sparke and Broad was the Butler’s solicitor. Byron Rose was the owner and principal of Rose & Jones Pty Ltd and worked as a buyer’s agent in real estate and in this case acted as such for Ms Borzi. I will refer to these entities as Mr Rose.

3. I am satisfied that Mr Butler put the property on the market for sale in about September 2000. The exclusive agent was Mr Campbell. In July 2001, this agreement was terminated and the property placed with other agents as well as with Mr Campbell.

4. Although there were a number of inspections, nothing concrete happened until May 2002 when Mr Campbell was contacted by email by Ms Borzi. She wanted to know about the property and its price (which was $780,000). She had seen the property advertised on the internet through Mr Campbell’s agency.

BACKGROUND

5. Ms Borzi then instructed Mr Rose to act as her agent to inspect the property and to negotiate with the Vendor as she was then working in Hong Kong. Mr Rose arranged with Mr Campbell to inspect the property and that occurred on 17 June 2002. Prior to that Mr Butler had been negotiating a price with Mr Cochrane being $770,000 and $10,000 for machinery. At some stage Mr Cochrane was informed that there was another bidder in the market through Campbell’s real estate agency.

6. Mr Rose said he was told during the inspection that another bidder, Mr Cochrane, had offered $800,000. Mr Campbell says that didn’t happen on 17 June 2002, but later on 18 June 2002. I accept that Mr Campbell is correct having regard to annexure D, dated 17 June 2002, to Mr Rose’s affidavit as he says in an email to Ms Borzi that the lessee (Mr Cochran) had made an offer of $780,000. Mr Cochrane in his affidavit says that he was contacted by Mr Butler on 17 June 2002 and told that the other purchaser had offered around $820,000 and that if Mr Cochrane increased his bid to $800,000 he would sell to him as Butler would have had to pay commission to Mr Campbell if the sale went through his office. Mr Butler apologised for breaking the agreement to sell at $780,000 and Mr Cochrane was unhappy, but agreed to increase his offer to $800,000.

7. According to Mr Campbell’s affidavit, which I accept, there were a few more steps in the offer/counter-offer process before the figure got to $818,000.

8. On 18 June 2002, Mr Butler’s solicitor sent Mr Cochrane’s solicitor a contract of sale in the sum of $800,000. Apparently, while this was being done, Mr Butler told Mr Campbell that Mr Cochrane had come to $800,000. Mr Campbell says and I accept that he then communicated that information to Mr Rose. Indeed I accept Mr Campbell’s recollection of the sequence and substance of the events over that of Mr Rose. In my view the sequence of events set out at paragraphs 18, 19, 20, 21 and 22 of Mr Campbell’s affidavit are more probably the correct sequence of events, having regard to Mr Cochrane’s, Mr Rose’s and to a lesser extent, Mr Butler’s respective affidavits.

9. Despite the agreement to sell to Mr Cochrane for $800,000, Mr Butler also accepted an offer of $818,000 from Ms Borzi via Mr Rose which would give him $800,000 clear of commission. I also accept that Mr Butler told Mr Campbell that Mr Cochrane was not going to increase his offer any further. Inexplicably in the scheme of the discussions, Mr Butler did not proceed with the Cochrane contract, although he was no better off in accepting the offer of $818,000 from Ms Borzi.

10. What then happened is the subject of some dispute, mostly on the part of Mr Butler whose evidence, in my view, is wholly unreliable and whose behaviour was merging on the dishonest and fraudulent.

THE ISSUES

11. Ms Borzi’s solicitors were not sent a contract and on 19 June 2002, Mr Rose contacted Mr Campbell to complain about that (Mr Rose affidavit paragraphs 13/14, Mr Campbell’s affidavit at paragraph 23). The respective versions of what then happened are set out in Mr Cochrane’s affidavit at paragraphs 34-37, Mr Campbell’s affidavit at paragraphs 24-25 and Mr Rose’s affidavit at paragraphs 15, 16 and 17, Ms Borzi’s affidavit at paragraphs 23, 24 and 25. I accept that the discussions between Mr Campbell and Mr Rose in regard to the $920,000 occurred more probably on 25 June 2002 than 20 or 21 June 2002, but nothing really turns on that discrepancy of dates. The fixing point as to a date lies in the email annexed to Ms Borzi’s affidavit dated Monday 24 June 2002.

12. In regard to the conversations had between Mr Cochrane and Mr Butler on or about 20 June 2002, I accept Mr Cochrane’s version as set out. I accept, therefore, that Mr Cochrane never offered $900,000 for the property. I do accept that Mr Butler told Mr Campbell that $900,000 had been offered and that was not the truth, but Mr Campbell did not know that.

13. The only remaining area of dispute is in regard to the formulation of the words said to be used by Mr Campbell to Mr Rose in communicating the fictitious bid of $900,000 from Mr Cochrane. Mr Rose says Mr Campbell said (paragraph 15):

“Max Cochrane had made an offer of $900,000. If your client wants it [meaning “the property”] you will have to bid higher, otherwise the property will sell for that price”.

Mr Campbell says he said (paragraph 24):

“Mr Butler has told me that Mr Cochrane has agreed to pay $900,000. Mr Butler said if Anna wants it, she will have to pay $920,000”.

14. The significant difference being the reference by Mr Campbell to being told something by Mr Butler was absent from Mr Rose’s recollection of the events.

15. I accept that Ms Borzi, Mr Cochrane, Mr Rose and Mr Campbell were doing their best to recollect events that occurred 4-5 years earlier. I accept that these witnesses are honestly recounting their memory. The same can’t be said for Mr Butler.

16. Ms Borzi says that about 24 June 2002 she was rung by Mr Rose who said (paragraph 25):

“The agent, Neil Campbell, has informed me that the other bidder, Max Cochrane, who leases the land on the Property, has put in a bid for $900,000. Would you bid any higher? This smells a bit rotten to me”.

17. Mr Rose’s version of that conversation is found in paragraph 16, which states that,

Mr Rose -“The current lessee has offered $900,000”.

Ms Borzi – “I’ll pay $920,000 to get it”.

Mr Rose – “That is a big move from $818,000 to over $900,000. Do you want to do it?”

Ms Borzi – “Yes. Please make a bid for $920,000. It’s my final offer. I want the property”.

18. Mr Rose’s conveyance of the acceptance of the figure of $920,000 to Mr Campbell is set out in paragraph 17 of his affidavit and paragraph 25 of Mr Campbell’s affidavit.

19. What is clear from each of these affidavits is that Mr Rose felt that something “smelled rotten”. There had been a jump in the bidding from $818,000 (or $800,000 net) to $920,000 (or $900,000 net). It was clear that Mr Rose would not have advised Ms Borzi to negotiate any further.

20. It was also apparent that Mr Rose was concerned as early as 18 June 2002 that something reprehensible may have been going on when Mr Butler’s solicitor failed to send the sale contract when there had been an agreement to sell at $818,000.

21. Mr Rose said in evidence that he was unaware that Mr Cochrane was dealing direct with the Vendor and not through the intermediary of the real estate agency, namely Campbell Holdings. Mr Campbell, on the other hand, says that he did let Mr Rose know that Mr Cochrane was in a private sale situation where commission would not be paid.

22. Mr Rose referred in annexure D to his affidavit to “this lessee is the one who has the offer at $780,000”. I accept that Mr Campbell said to Mr Rose on 18 June 2002 that “Mr Butler told 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 accept that later, Mr Campbell said to Mr Rose, “Mr Butler tells me that Mr Cochrane is going to pay $800,000. Your offer will need to be above that leaving Mr Butler the same amount”. I accept that Mr Campbell’s recollection of events is better than that of Mr Rose and that where there is an irresolvable conflict, I should accept Mr Campbell.

23. I accept Mr Campbell’s recollections because they are more detailed and are more logical having regard to other affidavits and the evidence.

24. Mr Rose is a professional buyers agent. Mr Campbell is a professional real estate agent. Mr Cochrane is an experienced farmer and property purchaser.

25. Ms Borzi complains that but for the misleading and deceptive statement made by Mr Campbell to Mr Rose in regard to the non-existent offer of $900,000 said to have come from Mr Cochrane, she would have been able to purchase the property for $818,000 as originally agreed and is entitled, therefore, to damages being in effect the difference between the original price and the actual price paid plus interest. The claim is formulated under the Trade Practices Act and/or the Fair Trading Act.

DISCUSSION

26. I accept that there was no intent on the part of Mr Campbell to mislead or deceive, although intent is not a necessary ingredient for there to be a contravention of s. 52 of the Trade Practices Act. As outlined in Yorke v Lucas(1985) 158 CLR 661 at 666:

“It is, of course, established that contravention of that section does not require 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”.

27. However, the Court also held that a corporation that simply purports to pass on information supplied by another is not necessarily engaging in false and misleading conduct if that information is 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”. Yorke v Lucas(1985) 158 CLR 661 at 666 :

28. This case was conducted by Mr Sirtes for the Plaintiff and Mr Chen for the Defendant in their usual economical, practical and relevant way and I am indebted for that and their concise submissions as to the facts and law.

29. Although there are a number of cases I have been referred to relating to Real Estate transactions, none deal with a factually similar situation.

30. In Butcher and Anor v Lachlan Elder Realty P/L (2002) NSWCA 237, the deception in question related to a swimming pool said to be wholly above the high water mark on the Vendor’s property when it was partially below that and thus was part of a permissive occupancy. Apparently a diagram on a brochure incorrectly showed the position of the pool. The brochure contained a disclaimer which had the effect, the Court held “that the agents did not accept responsibility for the accuracy of the information in the brochure” (paragraph 46). More importantly, at paragraph 41, Handley JA said:

“It is well established for the purposes of s. 52 and its equivalents that a disclosed agent conveying a representation on behalf of his principal may properly by understood as conveying a more limited representation in his own right”.

31. The case went on appeal to the High Court. [see (2004) 218 CLR 592]. The majority, Gleeson CJ, Hayne and Heydon JJ said, at paragraph 37:

“So here, it is necessary to consider the character of the particular conduct of the particular agent in relation to the particular purchasers, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known”.

32. The Court went on to say in paragraph 40:

“The agent did no more than communicate what the vendor was representing, without adopting it or endorsing it. That conclusion flows from the nature of the parties, the character of the transaction contemplated, and the contents of the brochure itself”.

33. In Orix Australia Corporation Ltd v Moody Kiddell and Partners Pty Ltd(2006) NSWCA 257, the respondent had passed on information as to the existence, location and title to pieces of heavy equipment from a company called QCE and Nelson Equipment. A witness described the process of this transporting of information as being a bit like a conduit. The CA found that:

1) The respondents conduct did not enhance the information.

2) Orix accepted that the respondent was communicating what it had been told and,

3) The respondent did not adopt or endorse the information.

34. Ipp JA went on to say (at paragraph 70),

“I do not accept Orix’s submission that, in the absence of an express or implied disclaimer, an agent that disseminates information supplied to it by others will, without more, be held to have engaged in conduct that is misleading or deceptive. The majority in Butcher make it clear that, while the existence of a disclaimer is relevant to the “conduct”, it is not essential to a finding that an agent did no more than communicate what others were representing. The characterisation of the agent’s conduct depends on a consideration of all the relevant circumstances and the existence or otherwise of a disclaimer is not necessarily determinative”.

35. His Honour then stated (at paragraph 76),

“Both Orix and Moody Kiddell were experts in their field and vastly experienced in it. Neither was an ingénue. In determining whether Moody Kiddell’s conduct misled Orix, no special allowance should be made for Orix; it was well able to look after itself. I t was not a party in any unusual or particularly vulnerable position”.

36. In John Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd and

others FCA 18/6/1993 , the full Federal Court held (paragraph 17) in the specific case that,

“In our opinion an estate agent which holds itself out as, amongst other things, “consultants to institutional investors and to developers of major properties” would not be regarded by potential purchasers of properties as merely passing on information about the property “for what it is worth and without any belief in its truth or falsity”.

37. The Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525 involved the sale

of paintings whose authenticity came into question. In that case the respondent, who lost the appeal, had placed no reliance on the galleries ability to determine the genuineness of the paintings. Plummer had also often valued and authenticated paintings for the gallery and so had more experience and expertise than the gallery owner. The Court held that the gallery merely passed on its understanding of the paintings provenance from the Vendor. The Court applied Yorkes case and also held that an agent who does believe his client, and makes that fact apparent can at the same time impliedly disclaim personal responsibility for what he conveys.

38. There is no doubt in my mind that the existence of a competing bid from Mr

Cochrane for $900,000 was false. Not only is it denied by Mr Cochrane, but when he was contacted by Ms Borzi in late 2005, he confirmed to her that his final offer had been much lower. Ms Borzi, in paragraph 29 of her affidavit gives the following conversation:

Mr Cochrane - “So you paid $900,000 for the Property? That was well above the market”.

Ms Borzi – “No you bid $900,000 and I paid $920,000 by bidding above you”.

Mr Cochrane – “No, I never bid $900,000. I was told I had to match the bid of $900,000 by the Hong Kong banker and so I stopped bidding. My final bid was much less than that”.

39. Further, the structure of the way in which Mr Cochrane proposed to meet the purchase price originally discussed, by payment of $500,000 and the balance in 6 months, suggests that he lacked the capacity to go much beyond the original agreed price of $780,000. I do not accept Mr Butler as a truthful witness in regard to his claimed dealings with Mr Campbell or Mr Cochrane. Apart from anything else, in paragraph 10 of Mr Butler’s affidavit, he states:

“Thereafter, to my recollection, Ms Borzi offered $860,000. I refused the offer”.

40. The suggestion that there was an offer of $860,000 from Ms Borzi is not supported by anyone else.

41. Having regard to the decided cases it is perhaps debateable that anyone who

merely passes on information is making a representation at all. The word representation implies a degree of knowledge about the matter being represented. The issue as far the first defendant is concerned, (plaintiff’s counsel conceded that he can’t succeed against Mr Campbell personally), is whether or not it made it clear that it was merely passing on information from another source, as opposed to stating what it knew itself.

42. What is at issue here is a misrepresentation un-associated with the value or

attributes of the property in question. The price at which a particular property might be sold depends on the Vendor being prepared to sell at a price and a purchaser being prepared to pay that price. That price might be below, at or above market value. A person may be prepared to pay more to obtain a particular property for a variety of reasons. Ms Borzi in her affidavit says she would not have offered to pay $920,000 had it not been for the fact that she had been told there was a counter offer of $900,000. That is probably self evident. What Ms Borzi doesn’t say though is that, if the Vendor unilaterally said that he wanted $900,000 clear to him, whether she would or would not have offered the $920,000. Certainly, the fact that someone else is prepared to pay $900,000 for a property could be an influence in whether or not another purchaser is prepared to go higher, because implicit in such a fact is that it tends to be an indicator of the market value of the property in question. In that regard, I note that the other property Ms Borzi was interested in was a 6 hectare place called “Vermont” near Bowral where the auction was expected to start at $1.4million.

43. It is certainly clear that Mr Rose was aware from the beginning that there was

another bidder. He was concerned when the contracts were not forthcoming on 21 June 2002. He thought there was something fishy about the $900,000 offer. In all this, there does not appear to have been any significant discussions in relation to the value of the property or the details and merit of the offers being made. For example, when Mr Rose was told, as he says, by Mr Campbell that “Mr Cochrane had made an offer of $900,000. If your client wants it, you will have to bid higher”, there does not appear to have been any discussion by Mr Rose with Mr Campbell as to what was going on in regard to the failure to send a contract and then the sudden jump in price. Ms Borzi could always have refused to go to $920,000, but she was prepared to pay that much to get this particular property, without much apparent reluctance as to the increased cost. Mr Campbell made no representation as to the property or the price other than convey what he’d been told. For example, he did not say to Mr Rose, “Your client ought to take this up because in my view the property is well worth it” or words like that.

44. The point is made that even if the Court accepts that Mr Campbell disclosed

the source of his information, that mere fact does not impliedly disclaim a belief in its truth. It is argued that the agent should disclose not only that the information comes from someone else, but also disclaim its truth or falsity.

45. That may be a relevant consideration in a situation where the information in

question relates to an attribute of the property the subject of the representation. However, I doubt whether it applies to the passing on of a simple counter offer of price.

46. I disagree with the Plaintiff’s argument that Mr Campbell’s conveying of the

offer to Mr Rose was precisely as described in the previously mentioned case of John Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd and others FCA 18/6/1993. In that case the Federal Court found the agent liable because the agents in that particular circumstance had held themselves out as “consultants to institutional investors and developers of major properties”. The information passed on by the agent, in regard to the properties attributes, and the agents experience, made the information a representation, rather than the agent being a mere conduit. That is not the case in the present matter.

47. Mr Campbell and Mr Rose accepted each other as persons of integrity and I

am sure they are. Neither had any reason to doubt the bona fides of the crucial statement in question. Mr Campbell did not expect Mr Rose to have made any independent investigation of the bona fides of the offer.

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. It is argued that Mr Campbell should have enquired as to the bona fides of the offer, suggesting that Mr Rose and Ms Borzi had no way of verifying the offer. I would have thought that both Mr Rose and Mr Campbell had the opportunity, if they felt it necessary, to check the reliability of the offer. What any inquiries may have revealed is debateable. We do not know what Mr Cochrane’s attitude would have been in regard to an approach to find out what offer he had made.

49. The submission made at paragraph 13 of the Defendants submission cannot be correct as the offer referred to in Ms Borzi’s affidavit (paragraph 25) relates to what Mr Rose discusses in his affidavit at paragraph 16, not paragraph 11. Paragraph 11 relates to the preliminary offer of $818,000 referred to in Ms Borzi’s affidavit in paragraphs 17 and 18.

50. As I have stated, Mr Campbell’s recollection of events is much more detailed

than Mr Roses’ to the extent, for example, of Mr Rose omitting several stages in the process of offer and counter offer that make logical sense. Mr Rose said that as a buyer’s agent, amongst other things, he was there to give advice, assess the value of the property, negotiate a purchase price and bid for the property. He also said that he didn’t put any gloss on the information passed onto to Ms Borzi, although his first email to her in regard to the property would suggest otherwise where he used expressions such as “land and location is perfect” and “this is certainly worth going for”. Of course, both Mr Rose and Mr Campbell stood to gain from a sale to Ms Borzi as opposed to Mr Cochrane. I say that simply to recognise that it was not only Mr Campbell who would receive a fee for a successfully negotiated sale.

35. The argument that Mr Campbell has tailored his affidavit to the earlier

affidavit of Mr Rose in my view, has no great merit. Mr Campbell’s sworn defence, made long before the Rose affidavit, stated that Mr Campbell had told Mr Rose that he was acting on instructions from the Vendor. Besides Mr Campbell’s affidavit, has details in it, that are not disclosed in Mr Rose’s affidavit.

36. On balance of the probabilities, I accept Mr Campbell’s version of the critical conversations he had with Mr Rose. In these 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.

37. 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.

38. It is obvious, therefore, that in my view there should be a verdict for the Defendant.

DAMAGES

39. In case I am wrong on the issue of liability, I should briefly discuss damages.

40. Ms Borzi says her measure of damages is, in effect, the difference between what she paid and the offer that was initially accepted namely $818,000. Whether that is a correct approach or not, I question whether the figure of $818,000 is definitive because that offer was not proceeded with by Mr Butler.

41. The Defendant says the measure of damages should depend on proof of the market value of the property about which there is no evidence from the Plaintiff and, therefore, even if the Plaintiff had succeeded a liability, she hasn’t established what her damage is. Further, the Defendant says that the Plaintiff has not established that Mr Butler was really willing and able to sell the property at $818,000.

42. We don’t know what figure Mr Butler would have accepted that was less than $920,000. We do know that he had reneged on two agreements with Mr Cochrane and the agreement with Ms Borzi. It seems plain that Mr Butler was prepared to mislead Ms Borzi and Mr Cochrane in order to get the highest price he could.

43. I can 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, nor was there any reluctance in the part of Ms Borzi to jump from $818,000 to $920,000.

44. Whilst the examples given by the joint judgment in Marks v GIO Australia Holding Pty Limited (1998) 196 CLR 494 are not particularly relevant to the present issue, what was said at paragraph 49 is:

“[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”.

45. Ms Borzi is rightly indignant at being tricked into paying a higher price than might otherwise have been the case. Whether or not Mr Butler’s conduct was criminal is not for me to decide, but certainly it was dishonest. Had he been honest and said, “I think the property is worth a lot more than I thought, I wont accept less than $900,000”, would Ms Borzi have bought the property? It is clear that Mr Cochrane would not, but the same cannot be said in regard to Ms Borzi.

46. This property was perhaps not easy to put a value on. It appears to be physically attractive and with permanent running water. An individual, as obviously Ms Borzi did, may have been prepared to pay more in order to secure it. We are not dealing with a 2 bedroom home unit in a block of 40 units, where a market value could perhaps be easily worked out. But even so, someone may be prepared to pay above market value, for reasons inimical to the purchaser. What the seller wants and what a buyer is prepared to pay is the value of that property to those parties.

47. I am not satisfied that even if the Defendant is liable under the Trade Practices Act or the Fair Trading Act, that the Plaintiff has established the level of her damage ascertainable on the balance of probabilities.

ORDERS

48. There will, therefore, be a verdict for the Defendant. The Plaintiff is pay the Defendant’s costs.

49. Liberty to apply for any consequential orders.