Borzi Smythe Pty Ltd v Campbell Holdings (NSW) Pty Ltd

Borzi Smythe Pty Ltd (the appellant) appealed a decision of the primary judge concerning alleged misleading and deceptive conduct in contravention of section 52 of the *Trade Practices Act 1974* (Cth). The dispute arose from the sale of a property where the appellant, acting as the agent for the vendor, allegedly conveyed representations to the purchaser, Campbell Holdings (NSW) Pty Ltd (the respondent), that higher offers had been made for the property than were in fact true. The respondent claimed these representations were false and caused it loss.

The Court of Appeal was required to determine whether the appellant, as an agent for the vendor, was liable for misleading and deceptive conduct under section 52 of the *Trade Practices Act 1974* (Cth). Specifically, the court considered whether the representations made by the appellant regarding higher offers constituted misleading or deceptive conduct, and whether an implied disclaimer within the sale process effectively shielded the appellant from liability.

The Court of Appeal, in dismissing the appeal, upheld the primary judge's finding that the appellant had engaged in misleading and deceptive conduct. The court reasoned that the appellant, by passing on representations about higher offers, had created a false impression of the market interest in the property, thereby inducing the respondent to enter into the contract. The court found that the alleged implied disclaimer was insufficient to negate the misleading nature of the representations, as it did not clearly and unequivocally inform the respondent that the information about higher offers was unreliable or unverified. The principles applied centred on the objective assessment of whether conduct was misleading or deceptive, and the effectiveness of disclaimers in negating such conduct.

The appeal was dismissed with costs.