Bullabidgee Pty Ltd v McCleary

Bullabidgee Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision concerning representations made in connection with the purchase of rural land. The dispute involved allegations of misleading and deceptive conduct under the *Fair Trading Act 1987* (NSW), specifically regarding representations about the land itself and the reliability of existing valuations. The purchasers (the respondents) contended that they relied on these representations when entering into the contract.

The primary legal issues before the Court of Appeal were whether the appellant had engaged in misleading or deceptive conduct, and if so, what form of relief was appropriate. This included determining whether the respondents had waived their reliance on the *Fair Trading Act* and whether their conduct amounted to an affirmation of the contract, thereby precluding them from seeking statutory remedies. The court also had to consider the appropriate measure of damages or other relief, particularly in light of the fact that the misleading conduct had influenced the price negotiations.

The Court of Appeal reasoned that the respondents had not waived their rights under the *Fair Trading Act* and that their actions did not constitute an affirmation of the contract in a way that would disentitle them to relief. The court found that the misleading conduct had a causal connection to the loss suffered by the purchasers. Applying the principles of statutory relief under the *Fair Trading Act*, the court determined that the tortious analogue of loss was not the appropriate measure. Instead, given that the misleading representations had affected the price negotiations, the court considered it appropriate to order the return of the deposits paid by the purchasers. The court therefore made orders regarding the form of final orders, including costs, to be settled by the parties.