Butcher & Anor v Lachlan Elder Realty Pty Ltd

[2004] HCATrans 87

[2004] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S548 of 2003

B e t w e e n -

JEFFREY GORDON BUTCHER
JUDITH KAY RADFORD

Appellants

and

LACHLAN ELDER REALTY PTY LIMITED

Respondent

GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 31 MARCH 2004, AT 10.22 AM

Copyright in the High Court of Australia

MR R.J. ELLICOTT, QC:   Your Honours, I appear for the appellants with MR G.A. MOORE.  (instructed by Williams Woolf and Zuur)

MR L.G. FOSTER, SC:   If the Court pleases, I appear with MR I.R. PIKE for the respondent.  (instructed by Murray Stewart and Fogarty)

MR J.McC. IRELAND, QC:   Your Honours, could I announce my intention to seek leave to appear in this matter on a limited basis, which I think would have been communicated to the Court by a notice of motion which has been filed on behalf of Mr Robert Edward Harkins.

GLEESON CJ:   We have read your notice of motion.  Before we proceed to deal with that, Mr Ireland, there is a matter that we should raise first with Mr Ellicott.  Mr Ellicott, the issues raised by the notice of contention and sought to be raised by Mr Ireland may call into question whether this was a suitable case for a grant of special leave to appeal.  Is there anything you would like to say about that?

MR ELLICOTT:   Your Honour, what we would like to say is that, although the Court can change its mind ‑ ‑ ‑

GLEESON CJ:   I am not thinking about a problem - although for my part I see a problem – about the merits of the issues in the appeal.  I imagine Mr Foster is going to be saying to us that the factual and legal complexities of the issues raised by the notice of contention explain why real estate agents put disclaimers like this in brochures and why it is not reasonable to bind them to representations about what appears in surveys, but I am thinking rather of the question of the premise that needs to be established before you can reach a conclusion that what was involved was a misrepresentation at all, which in turn, of course, raises an issue as to what was the nature of the representation.

MR ELLICOTT:   Your Honour, to answer all those questions one would have to consider the matters raised on the appeal.

HAYNE J:   Is that right?  Is the premise for your argument that the title to the land in question extended to a boundary near Pittwater identified by measuring the distance shown on the deposited plan?

MR ELLICOTT:   Your Honour, the case could be put that way, but that is not how we would put it.  What this misrepresentation was was that this swimming pool was within the curtilage of the land being sold, and the misrepresentation to our client was to that effect, and that ‑ ‑ ‑

HAYNE J:   I understand that.  Where then is the title boundary identified in deposited plan 9500 which we find at page 490?  Is it the mean high‑water mark or is it a line identified by measuring the distances shown on that plan from the roadside frontage?

MR ELLICOTT:   We would say, first of all, it is the points between those distances on the waterside frontage, in other words, if you ‑ ‑ ‑

HAYNE J:   I had understood that to be the premise to the argument.

MR ELLICOTT:   No.  Your Honour asked me a question, but we are here because our clients had misrepresented to them a vital matter and that vital matter was that this swimming pool was within the curtilage of the land.  On any view, it either was not or could not possibly be within the curtilage of the land and, therefore, the agents and the vendor had seriously misrepresented a vital feature of this land so far as they were concerned because what they wanted to do, as your Honours have read, they wanted to take this swimming pool out – not replace it somewhere else, but to get rid of it – to put a smaller pool at the side and to extend the entertainment area at the back.

GLEESON CJ:   So the representation was that the swimming pool was within the curtilage of the land that your client would acquire if he completed the sale.

MR ELLICOTT:   Yes.

HAYNE J:   A necessary step in that is the identification of the boundary of the land identified in the certificate of title, correct?

MR ELLICOTT:   A step in that is not that it is by itself.  What I mean is this, that when you come to the survey that was done what it shows is that the swimming pool was – and if your Honours would not mind me just going into the facts a little because ‑ ‑ ‑

GLEESON CJ:   Is it convenient to work from the brochure itself?

MR ELLICOTT:   Not on what I am putting to your Honours.  It is certainly convenient to look at the brochure, but I just wanted to show your Honours the reality and if your Honours would just go ‑ ‑ ‑

HAYNE J:   The reality begins with the title, Mr Ellicott.  That is where the reality begins, not with the survey.  It begins with the title.

MR ELLICOTT:   I understand what your Honour is putting to me, but I just want to indicate something which is rather important to my clients and how they reacted to this.  Could I take your Honours to volume 3 at page 576.  That is a photograph of the swimming pool and we know that the survey that was done, according to the measurements on the title, put the mean high‑water mark through the middle of that pool more or less so that their rear boundary was not, if one looks on the next page, at that pool fence which is shown at 577 – you can see the pool fence at the bottom of the photograph – but it was so many metres, whatever it was, within the pool.

GLEESON CJ:   Just sticking with page 578, what is the area with all the grass over it?

MR ELLICOTT:   That would be, according to what is shown, the reclaimed area.

GLEESON CJ:   Is that the subject of a permissive occupancy?

MR ELLICOTT:   That would be the subject of a permissive occupancy, yes.  The trial judge said that it was a reasonable assumption for anybody looking at this brochure to assume that what was shown as the mean high‑water mark, or MHWM, on the plan was that fence which is shown on that inset photograph.

GLEESON CJ:   So what your client thought he was buying was land which was bounded by the pool fence but from which there extended out, presumably to a boat ramp or something, a permissive occupancy?

MR ELLICOTT:   That is right, but he thought he was buying land that had within its curtilage a swimming pool and an area which would enable him to do something with that pool and extend his entertainment area.  My reason for going to 576 is simply to indicate in a stark way the impracticability of my clients being able to do that once, if you like, the true facts were known according to the measurements on the title.

GLEESON CJ:   You can probably express the representation in different ways but a simple way of expressing it, your clients’ understanding was that the boundary of the land to which you would take title extended to the back fence.

MR ELLICOTT:   Yes, that is a simple way of putting it and that is a reasonable conclusion for them to have drawn on the basis of the document.  In a sense, the issues raised by the notice of contention, those issues come in rather as a side wind.  They were never actually part of their major case; they simply adopted what Mr Ireland had said below.

GLEESON CJ:   That is why Mr Ireland says it would be so incongruous to proceed to deal with the notice of contention.

MR ELLICOTT:   He says that but, your Honour, one has to ask the question whether or not that contention, even if the Court considers it is of any relevance to the misleading or deceptive conduct, because the misleading or deceptive conduct, as I have expressed it, is about a pool being within the land.

HAYNE J:   And a premise for that proposition is that it is not and it is to that which I draw your attention.  I ask what is the title that is demonstrated by reference to deposited plan 9500?

MR ELLICOTT:   The title is actually the land with the measurements with something drawn across it which is called the mean high‑water mark.  That is the title and one can go to cases and authorities about the meaning of mean high‑water mark and where it is and the doctrine of accretion, but at the end of the day, under the system in New South Wales, whatever it may be in Victoria or somewhere else, the practice and the law in New South Wales is that if you want to change a title in relation to the mean high‑water mark then you have to get a survey and that has to satisfy certain requirements. 

It has to be approved by the Surveyor‑General and then if the adjoining land, as it usually is, is vested in the Crown then the relevant Minister has to consent.  Then, if the consent goes forward, the Registrar‑General will endorse it on the title or in some other way. Perhaps what would happen would be there would be another deposited plan and the title would refer to it when the new title would be issued, but so far as this particular title is concerned, if we are going to ask a question about title, this title was fixed at those side measurements.

HAYNE J:   That is to say, you take issue with what Mr Moore wrote in (1968) 41 Australian Law Journal 532 at 533 where he says that:

The common tendency to regard measurements shown in Certificates of Title as conclusive arises from a misunderstanding of the Real Property Act [(NSW)] provision that, subject to certain exceptions, the title . . . is indefeasible.

You take issue with that proposition?

MR ELLICOTT:   I take issue, not with that proposition, but I take issue – or my clients do, I should say – with the proposition that if you are shown a brochure with a survey on it and an inset photograph and you are interested in whether or not there is a pool within the curtilage of the land, that is telling you that within the title there is a pool, and that is a very significant matter.

GLEESON CJ:   Or to put it another way, you are interested in knowing whether knowing whether all the improvements that have been erected by your predecessor in title are on land to which he had title?

MR ELLICOTT:   Yes.  This is why we say it is really irrelevant, but if you slip across into the question of the actual title and the question of ownership and what your certificate of title proves, or what the certificate may prove, under the law is, first of all, that you are the owner of lot 14 in deposited plan 9500.  It does not show a swimming pool, of course, because it was created in 1919, but that then tells you, under the law, that you have a right, maybe – but it depends on what has happened – you may have a right to land by accretion which goes beyond that shown on your actual deposited plan.

That is one issue as between the Minister, if it is the Minister, or an adjoining owner, if it is a private owner, and yourself.  That is that issue.  But when one is saying, “I am selling you this land”, you are not selling a bundle of trouble with a doctrine of accretion hanging to it and a lot of inquiries have to be made in order to get there.  You want to know what is it you are selling, Mr Smith, and he indicates quite clearly, we say, on this “This is what I am selling, and what is of importance to you, apparently, is that the pool is inside it, and I am telling you that the pool is inside it.”

If it so happens that the mean high‑water mark runs through the pool according to the title, because that is what is shown, lot 14, then that is it.  No purchaser should be expected, on this information, to have to go off and engage in a rather difficult exercise of getting surveyors to survey what has happened since 1919 and satisfy the Registrar‑General or the Minister or the Surveyor‑General that the mean high‑water mark is where it is shown.

GLEESON CJ:   Is part of your answer to the notice of contention that your client was not the least bit interested in buying a lawsuit? 

MR ELLICOTT:   That is what I have just put.

GLEESON CJ:   And that even if, after a trip to the High Court, it had been able to be established that there was a capacity to require the Minister to agree to take certain steps in relation to fixing up the documentary title, that just was not what the purchaser was interested in purchasing?

MR ELLICOTT:   No.

HAYNE J:   That raises the most fundamental question about the Torrens system.  It raises a fundamental question not agitated in the courts below, or, at least, not dealt with with any perspicuous attention to detail.  The question of principle which it raises is this.  Does the title show entitlement to land bounded by metes and bounds, or does it show title to land bounded on the waterside by whatever is the mean high‑water mark from time to time?  If it is the latter, no question of failing to get title to the land depends upon any administrative step, you have title to whatever is mean high‑water mark. 

That is why I say, it seems to me that a necessary premise for the debate in the courts below, and for the argument here, appears to be that the title to lot 14 on the waterside terminates at a point determined by measurement, rather than at a point determined by the location of a physical feature, namely, mean high‑water mark.  Now, it is the validity of that premise which seems to me to raise quite fundamental questions about land law.

MR ELLICOTT:   I understand that, your Honour, and in a sense I am not arguing against it.  Your Honour might think that is a compelling concession by me, but I am not wanting to argue against it.  I would understand this, apart from this case, that if the registered proprietor looked at his title and said, “Well, I think the mean high‑water mark goes a lot further than that”, and then sets about it, it was the case before a…..Act called the Coastal Protection Act, which affects the doctrine of accretion in New South Wales, if he set about the task and said, “I’ll get a surveyor and then we’ll go through this system” – and it can take years.  I had a recent case where it did not even finish after six or eight years.

In other words, the process is a very lengthy one and can be very debatable, particularly with foreshores being of great interest to governments.  I can understand that the proposition might well be correct that “mean high‑water mark” means as you determine it from time to time according to certain principles, including the doctrine of accretion.  I understand that and that may well be the law and it may well be that this particular vendor or registered proprietor could go ahead and undertake that task and prove that it did not go through the middle of the swimming pool.  It actually was where it was shown on the surveyor’s plan.  It so happens, of course, that the purchaser from Mr Harkins has a title which confirms that the mean high‑water mark is exactly through the pool – in other words, where our surveyor put it.

That is one issue, but we are putting it on the basis that really the misrepresentation that is so serious is one that introduces something that is not on the title but it is very significant and it would not matter on one view, but perhaps it does in the long run – I do not need to put it any other way than to say there is this plan on the back, but when you read that in conjunction with the inset photograph, then the representation is not about mean high‑water mark or where it is located; it is about whether there is a pool within the rear boundary of the land.  That is borne out by the combination of those two things.  That is what we say about it, your Honours.  I would be repeating myself if I went any further.

GLEESON CJ:   All right.  We will just retire for a few moments to consider what course we will take.

AT 10.47 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.00 AM:

GLEESON CJ:   Mr Ellicott, we will hear full argument from you in support of your appeal and then we will have another look at where we go from there. 

MR ELLICOTT:   Your Honours, it is really a short point and I have gone a distance already.  What we are saying basically is that when you look at this brochure – because really what both the Court of Appeal and Justice Austin did was to take hold of that passage in Yorke v Lucas and apply it to this case and do so in the context that this was a mere passing on of information.  Now, I will come to Yorke v Lucas a bit later, but the first part of our case, in effect, is this brochure but there are other aspects that I want to refer to.  One, first of all, has ‑ ‑ ‑

KIRBY J:   What do you mean by that?  One could say it is a mere brochure with a big display in it?

MR ELLICOTT:   I want to say that it is obviously a promotional brochure, and that is how any purchaser would see it ‑ ‑ ‑

GLEESON CJ:   There are actually two disclaimers, one disclaimer to protect Lachlan Elder Realty and another disclaimer to protect Williams Design Associates.

MR ELLICOTT:   Yes.

GLEESON CJ:   So presumably the argument you make against Lachlan Elders Realty Pty Limited applies equally to Williams Design Associates?

MR ELLICOTT:   I assume so, whoever they may be.  So one has some small print disclaimers which in the context of a representation about a significant matter of interest to any purchaser, namely, whether or not what is represented to be within the curtilage of the land, is accurate or not, and what this brochure is telling a would‑be purchaser – and nothing turns on the class of purchaser here.  It may be it is people who want to buy a waterfront property and have more than a million dollars to spend, but that does not mean they are necessarily of a certain level of intelligence.  It is just that they have been lucky enough to put together a million dollars.  They may be people who have the ordinary capacities of other people in the community, so nothing turns on that and they are going to look at this and form a view that that pool is within the curtilage of the land or however they would express it.  In other words, they are buying a block of land which has a reclaimed area between it and Pittwater and the pool is within the land, and that is the clear statement there.  When you read this in small print, it says:

All information contained herein is gathered from sources we believe to be reliable.

That is not exactly telling you that you make your own inquiries.

GLEESON CJ:   Well, it goes on to say you should make your own enquiries.

MR ELLICOTT:   I know it does, but that sentence is really pointing away.  It is saying, “We have got this from reliable sources”.  The next sentence, if anything, although it says: 

we cannot guarantee it’s accuracy –

such a disclaimer, we would say – on the authorities, but just as a matter of argument – could hardly overbear a clear representation, we would submit, on the face of this brochure, that that pool is within the curtilage of the land.

GLEESON CJ:   On any view of your case, this is a representation about title.

MR ELLICOTT:   It is, yes.  We were buying some land.

GLEESON CJ:   And on any view of the facts of the matter, the subject of title is potentially a matter of considerable factual and legal complexity.

MR ELLICOTT:   That is, yes, but what ought not to be – if an agent is selling something, an agent ought to know what he is selling.  You would expect him to know that these are the boundaries of the land, or this is the house you are buying and it has a pool attached and this attractive entertainment area.  You would expect an agent to know that.  If he is representing that then, yes, it is a matter of title, but he is saying something more than that.  He is saying, “Not only are we selling you lot 14, but lot 14 has certain qualities about it.  All of that structure is within it and so is the swimming pool”.

If it turned out that the mean high‑water mark – and this may not be so stupid as it sounds – ran through a section of the building - your Honours will see on the plan it has “V”, and I assume that is verandah.  Supposing it went along the line which was closest to the street.  This was probably – and it does not matter that this may not have been proven; I am just illustrating something - this is probably an old house that may have been two‑storeyed that has been added to.  When it was built, the mean high‑water mark – it would have been after 1919, but in 1964 I think it was determined also on the evidence.

When it was built, the mean high‑water mark may have been thought to be further back but, in fact, it went through the verandah.  If there was a representation that, according to this brochure, not different to the brochure but it turned out it went through the verandah, it would be – some people might say it was only a swimming pool, but the same proposition will attach to a situation where the mean high‑water mark went through the house itself.

GLEESON CJ:   What are the bearings here, Mr Ellicott?  Is this a north‑south facing block?

KIRBY J:   North‑east.

MR ELLICOTT:   The water is to the north.

GLEESON CJ:   So the mean high‑water mark is to the north?

MR ELLICOTT:   Yes, that is right.

GLEESON CJ:   It is on the southern side of Pittwater?

MR ELLICOTT:   Yes.  I think it is in the Mona Vale area.  So the proposition that is put as a matter of title really has to encompass a lot of situations, because the mean high‑water mark could, from a practical point of view, be running through what is now part of the house.  If it was, it seems an extraordinary result that that is said to be a representation by an agent which the agent is free from.  We say it makes no difference in either event because, if there is a significant matter which would be regarded as significant to any purchaser, namely that the swimming pool is within the land or that the back verandah is in the land or that the lounge room is within the land, whatever it may be, it would be an extraordinary situation if that was not in the circumstances without a clear disclaimer – and I will come to that in a moment as to what a clear disclaimer is – it would be an extraordinary situation if that was not misleading and deceptive conduct under section 52.

Now, this brochure is not a document which is merely passing on some information.  If I could just get the statement out of Yorke v Lucas (1985) 158 CLR 661 and take the Court through it.

KIRBY J:   Just before you go to that, is there any significance in the fact that the land is for sale by auction?

MR ELLICOTT:   Yes, your Honour, I was coming to that.

KIRBY J:   And is there significance in the authenticity of the apparent photocopy reproduction of the surveyor’s drawing?

MR ELLICOTT:   Yes.  It is not just a mud map.  It is a survey, and it is telling you that the swimming pool is within the land.  If we can go to Yorke v Lucas, in the light of what your Honour has said, because I think the one important thing is to work out whether or not this is a mere case of passing on information, or whether or not something quite different has happened.  They say, almost halfway down on 666:

That does not, however, mean that a corporation which purports to do no more –

that is important –

than pass on information supplied by another –

Has the person here done any more?  We say it has.  Yes, it is certainly apparently reproduced a survey, but, not only that, on the other side it has shown the land and it has shown the swimming pool within the fence.  That is a clear representation that not only is the swimming pool within a fence, but it is also within the land, because, as the trial judge said, a reasonable person would assume that the mean high‑water mark was approximately where that fence is shown.  Therefore, yes, they have purported to do more –

must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false.  If the circumstances are such as to make it apparent that the corporation is not the source of the information –

First of all, the total information – you can say that the survey may not be sourced with the agent, but the other information is, that is to say, what is shown on the front of the brochure and the photographs –

and that it expressly or impliedly disclaims any belief in its truth or falsity –

That disclaimer – let us assume it is magnified for a moment, apart from the small print.  If it is magnified, it does not disclaim any belief, either “expressly or impliedly . . . in its truth or falsity”, first of all, because the first sentence is saying the source is one that:

we believe to be reliable.  However we cannot guarantee –

you know, it is not 100 per cent sure –

it’s accuracy and interested persons should rely on their own enquiries.

That is not expressly or impliedly disclaiming any belief in its truth or falsity.  So what Yorke v Lucas is talking about is that a person who merely passes on information, if that information is what we would say very likely to be material or very material to a purchaser, it needs the purchaser to be told or something should be written in plain print near the information that they should check its accuracy and they do not stand behind it, words to that effect, and they say “merely passing it on for what it is worth”. 

Now, how could one say that this brochure is “merely passing it on for what it is worth”?  This brochure is passing it on so they can sell the property to a person and make it attractive.  It has a pool between the colonnade, the verandah, and this fence.  What reasonable person would say the pool might not be on the land?  There is no warning there.  There is nothing to tell you, except apparently some erudite doctrine of accretion that a person should know about – a very important doctrine I hasten to add, but nevertheless to the ordinary purchaser, unless they are a specialist in high‑water marks or have a special knowledge of it, they are not going to know too much about the doctrine of accretion, but quite apart from that ‑ ‑ ‑

KIRBY J:   Is your point that if there had been some mistake concerning the garage, that is one thing, but where you are selling a waterfront property, shown with all the beauty of a waterfront property and the amount that is at stake, then the position of the mean high‑water mark is a very material matter and especially in the context of the representation concerning the “large outdoor entertaining balcony lapping up the year round” and so on, and that this is a very material matter to this particular purchase?

MR ELLICOTT:   Yes, your Honour, and fixing on ‑ ‑ ‑

KIRBY J:   Because one would want to be rather careful any principle this Court laid down concerning brochures because real estate agents are not skilled lawyers and conveyancers and there are bound to be mistakes that will arise from time to time, and perhaps puffing and overstatement and overbroad representations that are of an immaterial kind.  But if you are asking what is material in a waterfront property, then the actual situation of the boundary is a pretty important matter.

MR ELLICOTT:   Yes.

GLEESON CJ:   If it was a property in Redfern, closely settled and closely developed, the question whether properties were built within the right boundaries or whether there is an encroachment from a neighbouring property could involve a great deal of money, but it could also be a highly technical question.

MR ELLICOTT:   Yes.

HAYNE J:   And would ordinarily be the subject of requisition on title and the obligation of the purchaser to satisfy himself/herself of the identity of that which it is proposed to convey with the title that is to be conveyed.

MR ELLICOTT:   Yes.  Your Honour, that is how ‑ ‑ ‑

HAYNE J:   Which reflects back on what this representation means.

MR ELLICOTT:   I say this with great respect, we are talking about ordinary people here.  We are talking about people who do not know a great deal about matters like that, I suggest.

GLEESON CJ:   You are referring to the agents?

MR ELLICOTT:   No, we are talking about purchasers.

KIRBY J:   You are talking about potential purchasers.

MR ELLICOTT:   They are the ones who have to be protected and they have to be protected from agents who presumably ought to know about mean high‑water marks around Pittwater, if that is where they do their business.

HAYNE J:   Let us understand that proposition, Mr Ellicott, because what you are putting is that every agent who puts on a brochure the dimensions of the land, has to have a survey which will reveal that those are the true dimensions of that which is offered for sale.  That is a very large proposition.

MR ELLICOTT:   That is one face of the proposition.  The other face is that any person who is stupid enough to go to an auction on a mean high‑water mark had better get a surveyor to make a survey before they bid, otherwise they will be in jeopardy.  That is the other face of that proposition.

I would submit that it is resolved by this.  If, as this does, a plan shows what is recognisable as the mean high‑water mark, then that is the mean high‑water mark at the time that the person is putting this property forward for sale.  They are saying that is the mean high‑water mark.  They are not saying that is the mean high‑water mark that may have been in 1919.  We are selling a property where the mean high‑water mark is at this point.  I know that you can argue that if the mean high‑water mark according to the title happens to run through the swimming pool, it may be it will be at that point, but that is not the point .  There was no evidence to establish that the mean high‑water mark is at that point.

HAYNE J:   I am sorry, what was the proposition, Mr Ellicott?  Do you say there is no evidence below that would establish where the mean high‑water mark was, in fact?  Is that the proposition you advance?

MR ELLICOTT:   Yes, because there has never been, according to New South Wales law - perhaps I should give your Honours the relevant provision, but the ‑ ‑ ‑

HAYNE J:   I am sorry, I was just wanting to understand the proposition you last put.  Did I accurately capture it?  There was no evidence below of where actually mean high‑water mark was.

MR ELLICOTT:   Your Honour is being very exact and I have to be exact in my answer.  The evidence below did not establish that the mean high‑water mark was at the point shown on this plan, or at any point other than what one might assume from the title, that is to say running through the middle of the swimming pool.  When somebody puts forward a plan like this - and I am on another point at the moment, I do not need this point, but if I have to deal with the proposition that the mean high‑water mark is a moveable feast then I am submitting in answer to that.  If a document shows it at a particular place then it is a representation that it is at that place.  If that representation is not borne out then it is misleading.

So you go to the next step.  All right, here is the certificate of title with a 1919 deposited plan and when you take the measurements you get it going through the middle of the swimming pool so that is a pretty strong indication that that may not be the mean high‑water mark.  That surely tips the scales the other way for proof that the mean high‑water mark is at the other point, but there just was not sufficient evidence below to establish that, nor could there have been, unless there had been an inquiry into the matter pursuant to the survey regulations.

GLEESON CJ:   Am I right in thinking that the reasoning of the courts below amounted to this, that the brochure did contain a representation of the general kind for which you are contending, that that was a misrepresentation, but that the publication of the brochure with the disclaimer in the circumstances did not amount to misleading conduct?  Is that the way the argument went?

MR ELLICOTT:   Yes, that was, in a sense, Justice Austin’s decision that to put this in the contract was misleading.  The Court of Appeal agreed with that.  They did not take any point based on mean high‑water mark, of course, but then the Court of Appeal said Justice Austin could not in one breath say that the vendor had misrepresented by putting it in the contract and in another breath say that the agent had not misrepresented the matter.  That is what Justice Handley said in his judgment.

So below it was accepted that there was a misrepresentation by the vendor and, indeed, by the agent.  The peculiarity of the judgment is that the Court of Appeal took hold of Yorke v Lucas and said it was a mere passing on of information and applied common law principles in doing so, without giving strict adherence to what the words in Yorke v Lucas were really saying.

Just slipping back again into the other proposition, that is to say that if it is a representation about mean high‑water mark, it is a representation that that is where it is at the moment according to law.

HAYNE J:   Can I understand that against the background of paragraph 80 of Justice Austin’s judgment, where his Honour summarises the effect of the, in some respects, conflicting evidence given by surveyors as being, in the end:

little, if any, disagreement between the surveyors.  What emerges from their combined evidence is that the ‘documentary’ mean high water mark by title passes through the swimming pool but there are good grounds for arguing that the mean high water mark should now be located in a different position beyond the pool.

MR ELLICOTT:   That is simply saying what it says.  It is not taking hold of the words “MHWM”, assuming the purchaser knows what they mean.  It is not taking hold of those words and asking the question, what do they mean in the brochure?  The combined effect of the plan and the photographs would be, we would submit, that it is saying that the mean high‑water mark is there and somebody has built a fence to mark it off.  It is the back boundary, and beyond that there is this reclaimed area that is shown.  It cannot be further towards that, if you are a technician in the law of accretion, because, if it is a reclaimed area, you cannot have it.

GLEESON CJ:   Are we concerned with section 52 of the Trade Practices Act or the Fair Trading Act (NSW)?

MR ELLICOTT:   Yes, 52.

GLEESON CJ:   So what we are concerned to do is to apply to the facts of the case the expression, “engage in conduct that is misleading . . . or is likely to mislead”?

MR ELLICOTT:   Yes.

GLEESON CJ:   We are not concerned with a case of deception; we are concerned with misleading?  There was an allegation of fraud or something ‑ ‑ ‑

MR ELLICOTT:   I have always thought the words slip into one another.

GLEESON CJ:   There was an allegation of dishonesty floating around somewhere below, but that has gone, as far as we are concerned? 

MR ELLICOTT:   That has gone.  In that sense, yes, your Honour.

GLEESON CJ:   So what we have to do is apply to the conduct of the real estate agent the statutory description of conduct that is misleading or is likely to mislead.

MR ELLICOTT:   Yes.

KIRBY J:   Coming back to Justice Hayne’s question, Justice Austin leaves this point hanging in the air.  Your gripe was that you did not get what you bargained for and expected because of this misrepresentation.  But if it were the fact that you did get what you bargained for, even though it might take certain steps to do it, then the basis on which you are going on and on and making all this fuss about being unable to build your pool would completely fall away and you would have got what the brochure suggested.  All of this is a debate about something which has not really been finally determined, but which is a killer point against your case.

MR ELLICOTT:   Your Honour, no, because what is really involved in those propositions that your Honour has just put to me is that a purchaser is being told, in effect, “Now, look here, that mean high-water mark may not be there according to the title if you have a look at it, but if you care to go through a process, which your solicitor will tell your about, of getting a survey, it may well establish that the mean high-water mark is, in fact, where we show it”.  Now, that really is complicating the processes whereby people buy and sell land, particularly at auction, and there has to be, we would submit, a line to be drawn in a case like this. 

Now, either the pool is within the land or it is not, either it is a misrepresentation binding on the agent or it is not, or it is misleading conduct binding on the agent or it is not.  Well, it is misleading if it shows that the pool is within the curtilage of the land, and that is the sense in which the courts below have decided it.

KIRBY J:   But what if the pool is in there, in fact?  It is not a misrepresentation, because in fact and truth it may take a few steps to establish it but in fact and truth the pool is within the property and therefore all your fuss is simply fuss about something which is not a misrepresentation.  In fact it is a correct representation, though some of the material that illustrate it is not perhaps exactly as represented but the essential representation that concerned you, viz that you could do what you wanted with the pool, is not different from that which was represented.

MR ELLICOTT:   This is misleading conduct, we are considering or alleging, which is going on from 6 February until the auction on 17 February.  If one takes the propositions which are inherent in what your Honour is putting to me, and I suspect Justice Hayne is putting to me, then it is placing a very high liability on a purchaser who is, in effect, being told, “It may not be there, but it is just one of those things.  We show it there and when you look at the plan, the certificate of title or the deposited plan, and you get a surveyor to do it, it might be shown as going through the pool, but not to worry.  If you get a survey, it will probably turn out to be the fact that it is where it is.”

KIRBY J:   Your point is that representation focuses on that which is represented and that which is represented here is wrong.

MR ELLICOTT:   Yes, and the agent can only get out of it if the principle laid down in Yorke v Lucas applies to the facts of the case.

GLEESON CJ:   These are really two sides of the one coin, these considerations, are they not, Mr Ellicott, because from one point of view the agent says, “Having regard to the terms of this disclaimer, you should not treat me as standing behind the truth of a representation which involves issues of considerable legal and factual complexity”.  The other side of the coin is that the agent says, “Well, if you are going to treat me as standing behind that representation, you prove the representation is false”, and the notice of contention says to you, you never managed to do that.

MR ELLICOTT:   Your Honour, that is the question which has to be answered if you are going to go beyond the facts and get into the area of what I will call “the law of title in relation to land”.

GLEESON CJ:   Is the agent not entitled to say, “If you are going to pin me to a representation about legal title based on considerations of mean high‑water mark and accretion, or in Redfern if you like, complex matters of fact in relation to encroachment of closely settled land, if you are going to bind me to that representation then you have to prove the representation is untrue”?

MR ELLICOTT:   That might be all right, your Honour, if all they did was put down a copy of the deposited plan, but what they did was quite different and very material.  It is in this sense that what this representation is is not only as to mean high‑water mark, but it is saying something about a swimming pool and a brick house and it saying it is within the curtilage of the land.

GLEESON CJ:   I think you agreed earlier, essentially it is saying something about title.

MR ELLICOTT:   It is saying something about title, but it is also saying that it is taking the extra step of saying that within the title that we are selling you, or the vendor is selling you, stands a pool and a house.  The proposition has to be measured not only in accordance with a swimming pool that might seem to be a relatively cheap article, but it also has to stand up in relation to a house or part of a house.

With very great respect, being realistic about what is happening between an agent trying to sell and promote the sale for his benefit – a million dollars is going to give him probably something like maybe $30,000 in commission, so he is very anxious to sell and he is not on the defensive, he is on the front foot and he wants to sell it and the purchaser is entitled to assume that what the agent is saying to him is that, “What I am representing to you about substantial aspects of this property is accurate”, not to the smallest inch but in terms of a pool being within the land, yes, certainly.

If the agent wants to say the pool may not be within the land or thinks it may not be because of the doctrine of accretion or something like that, or it wants to say, “It would be a bit tough on me if you held me to that”, as your Honour put it, then he needs to say it, but, of course ‑ ‑ ‑

GLEESON CJ:   What he said was, “I did not do this survey.  I am not a surveyor.  I have no reason to disbelieve the vendor or the surveyor”, but, using what I understand to be a very common expression in conveyancing practice, the purchaser should “rely on his own inquiries”.

MR ELLICOTT:    But why does he show the pool? 

HAYNE J:   Because it was on the survey plan, simple as that.  He produces a survey plan that his vendor has given him.  He produces it.

MR ELLICOTT:    Yes, dated 4 August 1980 and then he adopts it by the inset photograph on the front.  There is no doubt, in our submission, that that photograph indicates something to a purchaser, that is to say, that the mean high‑water mark as shown on the survey is around about where that fence is.  That is telling him the same thing, that is, that the pool is within the land that is being offered for sale.  It would be extraordinary, I would submit, that an agent can, in effect, provide a survey and photographs and promotional material, where he has a special interest to sell the property, and escape by some technical argument, which, if there were solicitors and lawyers present who were asked to engage in the conversation and say what are the legal rights here, would be an extraordinary situation.  It is just not real life.

KIRBY J:   Well, could I ask you on that point, it seems to me significant for working out how we resolve this problem that we are in the business of applying the Trade Practices Act.  We have to be just a little careful that we do not get diverted from the obligation which we first have to a valid statute of the Federal Parliament of Australia to apply that Act for its purposes and in its terms, not necessarily picking up – as was said in the special leave application – all the baggage of past law, but focusing on the statute.  Now, you have read us one case about the Act, Yorke v Lucas, but is there anything else?  There is a preamble in the Act, its purposes are stated, the Attorney‑General at the time introducing the Act had things to say about it.  No doubt, the Solicitor‑General at the time had things to say about it.  It is a big consumer protection statute.

MR ELLICOTT:    At the time, the person you referred to was the Shadow Minister for business and consumer affairs who was putting the Bills through the House ‑ ‑ ‑

KIRBY J:   I am sure he had a lot to say about it, too.

MR ELLICOTT:     ‑ ‑ ‑ on behalf of the Opposition.

KIRBY J:   But it seems to me there is always a risk in courts that you do not start with the statute.  Our duty here is to see how the statute applies to the facts of this case.

McHUGH J:   That is part of the problem with using representation.  It has always seemed to me that courts are inviting error in determining or applying section 52 when they talk about representation and they talk about conduits and so on.  After all, the statutory term is “engaging in conduct likely to mislead”.  If you apply the terms of the statute, why is it not likely to mislead somebody if you hand that person a brochure, even though it has a minor disclaimer?  That is to say, somebody is likely to be misled by the sketch and say, “Well, I read the disclaimer, but I am prepared to rely on the sketch”.  I do not know why you have to have a representation.  I know it is handy, but it is baggage from the common law.

GLEESON CJ:   But you have to have somebody doing the misleading. 

HAYNE J:   And somebody misled. 

GLEESON CJ:   On your argument, that is both Lachlan Elder Realty Pty Ltd and Williams Design Associates, is that right?

MR ELLICOTT:   It may be that they designed the brochure, I do not know, but the fact is that it is the agent’s brochure.  It is not a piece of paper that has been given to the agent by the solicitor so that he can hand it out.  That is not the point.  The point is that the agent has adopted it and put it in its brochure.

GLEESON CJ:   That word “adopted” is the key word, is it not?  The agent has said he has not adopted it, has not he?

MR ELLICOTT:   Your Honour, that all depends on whether one is going to get hold of those words at the bottom and magnify them and turn them into something which they are not, with respect, for this reason, that the small print is – it has been said time and time again, certainly in the Federal Court, that disclaimers of this nature are not likely to overturn the effect of otherwise misleading and deceptive conduct.

GLEESON CJ:   Was the young lady at the front desk of the real estate agent’s office who handed copies of these brochures to everybody who came into the shop on the morning engaging in misleading conduct?

MR ELLICOTT:   Not in herself because she was employed by ‑ ‑ ‑

GLEESON CJ:   Why not?  Why would that make a difference?  She is handing somebody, on your argument, a document by which they will be misled.

MR ELLICOTT:   Yes, a document provided to her to hand out.

GLEESON CJ:   That is right.

MR ELLICOTT:   Nobody would think that a document that quite clearly was Elders Realty’s document being handed out by Ms Smith on the front desk was something which she would stand behind so far as ‑ ‑ ‑

GLEESON CJ:   So that is the test.  You cannot answer the question simply by saying, “Does the document contain information that is likely to mislead somebody?”  You also have to look at the role of the person who makes the document available.

MR ELLICOTT:   I think that is right, but one thing is not in debate and that is this is the document of Elders Realty.  Here it is, Lachlan Elder Realty, they have put it out.  There is no debate about that, and they have handed it out and given it to my client and said certain things about it that are part of our case, and your Honours will have read that.  But they had decided to put on the brochure – they must have had the choice as to whether to put it there or not.  There is no evidence that they were instructed to put it there.  They decided to put it there.  Agents are inevitably going to try and – they will puff, we know that, but they have put something there which is not puffery.  It is quite clearly a representation which they thought was significant for the purpose of selling this land which they represented also had a swimming pool between a fence and the property.

GLEESON CJ:   Is it possible for agents to put a form of disclaimer on a document like this that would relieve them from the possibility of contravention of section 52?  Is there anything they could say that would produce that result?

MR ELLICOTT:   Yes.  They could say something that would be stupid for them to say, and that is really the point of this case.  No agent is going to say, “You must make your own inquiries because I cannot be sure” ‑ ‑ ‑

KIRBY J:   “Forget this brochure.  Pay no heed to it.”

MR ELLICOTT:   ‑ ‑ ‑ “that the pool is between the house and that fence” and ‑ ‑ ‑

GLEESON CJ:   Why would it be stupid to say, “I am not a surveyor and I did not do this survey.  I have no reason to believe the survey is accurate, but if you want to rely on it you should make your own inquiries”.  It does not sound like a silly thing to say.

MR ELLICOTT:   It would be a silly thing to say – you could put it that way, your Honour, or another way – because it would turn every purchaser off.  They want to sell the land and here they are on 6 February with an auction on 17 February.  We know that people can rush up to an auction the day before.  I have been at an auction where somebody has come over from overseas and landed next door half an hour before and rushed in and put a bid in without having an opportunity to look at the property, but these brochures are intended for purchasers in all sorts of circumstances.

KIRBY J:   You would not want to have a principle of the application of the Trades Practices Act that effectively makes real estate agents guarantors for survey material.  That would not be a correct or fair principle to apply to the Trade Practices Act.

MR ELLICOTT:   The way of dealing with it is that if the survey contains inaccuracies which are misleading or deceptive or likely to mislead, then there must be some conduct on the part of the agent which warns the reasonable purchaser that that particular material or matter may not be accurate and they should make their own inquiries.

HAYNE J:   Applying that principle more generally, does that mean that when a real estate agent produces a brochure offering Blackacre for sale, that the agent thereby conveys to the reader that the vendor has good title to Blackacre?  It seems to me to follow inevitably from the proposition you have just advanced and it seems to me to represent a rather large alteration in conveyancing practice.

MR ELLICOTT:   It may be an extraordinary reply, but I would submit that within the confines of the Trade Practices Act it would be misleading and deceptive or likely to deceive to put up for sale a property if you were not saying that the person on whose behalf you were selling it could give title to it.

GLEESON CJ:   What if the problem about title was that there was a native title claim in relation to the land of which the agent was not aware?

MR ELLICOTT:   If the agent was not aware, the agent has not made inquiries about a very important matter affecting this land.  If what he says is misleading as a result of not giving reference to it, then it is misleading and deceptive.  In other words, the ‑ ‑ ‑

McHUGH J:   That sort of case has been before the courts, has it not?  In the Benlist Case the brochure said that it had strata potential and the brochure had a disclaimer in it, but failed to say that because of boundary problems, to strata the property might be difficult.  If I remember rightly, they were held liable.

MR ELLICOTT:   Yes, Benlist v Olivetti, and I was going to give your Honours a reference.

McHUGH J:   They were held liable, were they not?

MR ELLICOTT:   Yes.

KIRBY J:   Which case was that?

MR ELLICOTT:   I think it is Benlist v Olivetti.

KIRBY J:   Please keep in mind that in the Court of Appeal we were kept out of these cases.  Do not assume I know all the jurisprudence of the Federal Court on these matters.  I do not.  We were excluded from them and therefore I did not deal with them, so just do not assume I know all of this material.  Really, as far as I am concerned, I am going to approach this matter by giving effect to a valid statute of the Federal Parliament.  That is our first duty, not all this talk about conveyancing practice.  Our duty is to look at the statute, to give it effect, having regard to the background.

MR ELLICOTT:   No counsel, your Honour, could sensibly take exception to that.

KIRBY J:   You seem to be reluctant to delve into the statute.  Most barristers who come before us hate statutes; they love common law.

MR ELLICOTT:   Your Honour, this is the best statute probably that has been passed for lawyers in the last 40 years.  I mean, we love it.

KIRBY J:   Well, it is for consumers; it is not for lawyers.  It is for ordinary folks.

MR ELLICOTT:   To have assisted in putting it through Parliament gives it a certain affection.  But it is there to protect the consumer and therefore, when the section – I mean, the heading is “Consumer Protection”.  When one is construing section 52 it has a lean on it.

GLEESON CJ:   Yes, it certainly does.  One of the first decisions this Court ever made about section 52 was that it was not limited to consumer protection and in fact it was being mostly used by competitors rather than consumers.

MR ELLICOTT:   Yes.

KIRBY J:   But here we have a consumer protection case, or so it is said.  It may have a wider ambit but this is what we are dealing with and you say if you require them to look at the fine print and so on, that defeats the consumer protection objective of section 52.

MR ELLICOTT:   If it is only fine print, then that is to their disadvantage, that is, the agent’s disadvantage.

KIRBY J:   There must be lots of principles that have been laid down.  Justice McHugh mentions a case.  I do not know that case and if it is ‑ ‑ ‑

MR ELLICOTT:   I am going to take your Honour to it.

KIRBY J:   Good, I cannot wait.

GLEESON CJ:   I am just trying to formulate exactly what the issue is on this part of your argument, Mr Ellicott.  You agree that the young woman in the office who handed out these documents is not engaging in misleading conduct.  You say that her employer, notwithstanding the disclaimer, is engaging in misleading conduct.  What is the issue by reference to which you would discriminate between those two?  Is it whether or not the respondent is doing something in relation to the publication of the information in the brochure which makes the statement about title its statement?

MR ELLICOTT:   Your Honour, I would submit it is more about this, that if it is the young lady at the front desk, if she is an employee and she is handing out on her employer’s behalf – but if it is Mr Lachlan Elder or Mr Spicer who are involved in this and they are estate agents and they are promoting the sale, the question is, are they engaged in misleading and deceptive conduct?  If they are promoting the sale, then that is an aspect of it that is very relevant to whether or not the conduct is misleading because they are putting it forward for sale and they are saying things about it. 

Now, the question is, what is it they are saying which is misleading or deceptive?  The next step is to say they are saying, apparently, that this pool is within the curtilage of the land, when, in fact, when the survey was done with those measurements, it is not.  Therefore, that is misleading and that is what the courts below, in effect, have said.  The next step is to say, “Did the agent say anything that might put the purchaser on inquiry as to whether or not what he was saying or what his brochure was saying was correct or not?”, and you add that in to say whether, at the end of the day, the conduct is misleading or deceptive. 

The Act has to encompass people who pass on information and if people pass on information in documents that are their own documents, and not just a contract, say, that the agent hands out at the auction, but their own documents, then that is their conduct.  They have said something that is potentially misleading.  Have they said anything or written anything that would enable a person judging it to conclude it was not misleading or deceptive because the would‑be purchaser knew all the time that the agent really was not saying that that was accurate?

GLEESON CJ:   I do not know if this happened during your time, as it were, but there was an amendment to this Trade Practices Act to cover information providers at some stage.  Do you know what I am talking about?  To be blunt about it, it covered the media.  It was put in, as I recollect it, to protect the media from problems with section 52 in relation to information such as the weather or stock exchange reports or whatever.  What is that section?

McHUGH J:   It was 52A or 51A, was it not? 

HEYDON J:   It was 65A.

MR ELLICOTT:   It must have been, presumably, on the basis that if they did not get the protection – because it could be misleading and the yacht in a storm might flounder – then they might be liable.

GLEESON CJ:   That was why I said it was after that Western Australian case.

McHUGH J:   Yes, Justice Gleeson was in it, I think, if I remember rightly.  Global Sportsman or something like that, as I remember.  But, Mr Ellicott, in talking about “engaged in conduct”, you seem to concentrate on that expression.  One reason why the receptionist is not liable directly under 52 is because it is only corporations that are, but “engaged in conduct” is defined to mean doing an act.  Why do you not look at the surrounding circumstances to see whether that act is likely to mislead? 

Leaving aside the term “corporation”, supposing somebody goes to the receptionist and says, “Are you selling this property?”, and she says, “Yes, here’s a brochure”, and it contains a misleading statement, why has she not done an act that is likely to mislead?  Why do you put a gloss on the statute?  I know the cases do, because they do not like the scope of this.  Intuitively or instinctively, judges recoil from holding people liable under this statute, so they introduce terms like “innocent agent”, “conduits”, “representation”, “misrepresentation”, but that is not the language in the statute.

MR ELLICOTT:   Your Honour, I do not disagree with that, but I do not have to include the office girl.  The distinction, if there is a distinction, is along the lines that I have suggested, that it is not her document.  This is a case about somebody’s document.

McHUGH J:   But it does not have to be her document.  It is doing an act.

MR ELLICOTT:   I understand that.

McHUGH J:   If you hand out a misleading brochure ‑ ‑ ‑

MR ELLICOTT:   Your Honour, I am not disagreeing, but so far ‑ ‑ ‑

McHUGH J:   I mean, if the paperboy throws something over the fence and it has a misleading – it may be it is arguable that he is within the statute.  Now, judges recoil from that.

MR ELLICOTT:   It is a very wide statute and, no doubt, the recoiling is asking the question, should we place a limitation on it?  Certainly, there should be no limitation when somebody, an agent, puts out their own document which contains something that is misleading or deceptive, and we would say, in this case, grossly misleading or deceptive.

GLEESON CJ:   What is the finding of fact in the courts below that justifies the conclusion that your client was misled?  In what respect was he misled?

MR ELLICOTT:   Your Honour, at paragraph 67 on page 780, volume 4, there is another passage at ‑ ‑ ‑

HAYNE J:   Just before you leave that passage, paragraph 67, when his Honour refers to “the mean high‑water mark”, he is identifying a mark determined by measurement.  Is that right?

MR ELLICOTT:   Well, that is based, in fact, on our surveyor’s evidence.

HAYNE J:   Which was a mark determined by measurement.

MR ELLICOTT:   When you took the measurements, it went through the middle of the pool.

HAYNE J:   Yes, I understand that.

MR ELLICOTT:   That sounds like a trap question, your Honour.

HAYNE J:   No, it is simply inquiring what paragraph 67 means.

MR ELLICOTT:   It does not resolve the issue that because it is arrived at by measurement as to whether or not it is deceptive or misleading conduct.  Another passage which touches on this is at 196, page 816.  At line 37:

Mr Butcher has given evidence, which I accept, that but for his dealings with Mr Harkins and Lachlan Elder Realty, he would still own the Calvert Parade property.

That is evidence of some reliance, but the most significant is paragraph 67.

HEYDON J:   That is repeated in paragraph 145, page 801.

MR ELLICOTT:   Thank you, your Honour.  If your Honour pleases, yes, it is even more strongly stated there.

GLEESON CJ:   Was there a finding in the courts below that the swimming pool was not within the curtilage of the land that your client would have acquired if he had completed the sale?

MR ELLICOTT:   The finding was on the basis of the surveys that the mean high‑water mark went through, in effect, the middle of the swimming pool.  At page 796, paragraph 125:

The correct position of the mean high water mark in a survey identification report for lot 14 is the position shown in Mr Bee’s report, in which the mean high water mark is depicted as traversing the pool.  Consequently, by making available to the plaintiffs’ solicitor a draft contract annexing Mr Hannagan’s report, Mr Harkins misrepresented the location of the mean high water mark in relation to the pool.

GLEESON CJ:   But you opened to us on the basis that the representation on which you relied was a representation that the swimming pool was within the curtilage of the land that the appellant would acquire if he completed the sale.

GLEESON CJ:   If I may say so, you should file a notice of cross‑appeal.

MR FOSTER:   We will do that.  May we have your Honours’ leave to do that?

GLEESON CJ:   Yes, you have that.

MR FOSTER:   It will simply seek a remitter.  We will do that, too.

GLEESON CJ:   Thank you.  Yes, Mr Ellicott.

MR ELLICOTT:   Your Honour the Chief Justice raised an issue about section 52.  Whether or not a person has reached it can be answered by the question, is it necessary to consider the nature of the responsibility which a person has?  I suppose it is true to say that if a barrister says, “My instructions are so and so”, in fact the court is misled. 

GLEESON CJ:   Yes, whether by conversation I might ‑ ‑ ‑

MR ELLICOTT:   Whether it is what you might call professional misconduct may be another matter.

GLEESON CJ:   Well, in ordinary conversation, I might say to you, “I am sorry I have misled you”, when I have made a slip or an unintentional error, but I would not necessarily admit in those circumstances that I had engaged in misleading conduct in contravention of a statute.  It might depend, once again, on the circumstances.

MR ELLICOTT:   It sometimes depends on the responsibility the person has.  There is no doubt that a Minister responsible for a particular department might answer a question by reference to facts that have been supplied to him by his department.  It may be that the fact that it came from some person in the department may appear in his answer.  On the other hand, it may not.  But, whichever appears, the Minister would be very quick to go back into the House immediately he or she learns that what has been said is untrue.  That is because of the responsibility that the Minister has.  Indeed, it can lead him into great trouble if he does not do it, so it may be motivated by self‑protection.

So far as an estate agent is concerned, or perhaps in other cases, I would submit that it very much depends on the circumstances.  If that question was asked as being a necessary part of every application of section 52, it would lead to error.

GLEESON CJ:   It may be a material circumstance.

MR ELLICOTT:   It may be a material circumstance, but only one of a number of circumstances.  In the ultimate the question is, is the conduct misleading or deceptive or likely to mislead or deceive?  Your Honour said the question here was, did the agent vouch for the accuracy?  Again, we would submit, with respect, although that is a way of putting it, if it becomes too prominent a part of one’s thinking process, it may take you away from the real question, which is was the conduct misleading or deceptive?

GLEESON CJ:   The conduct alleged being the making of a false representation.  That then means that the question is, is it not, did the agent represent that the survey was accurate?

MR ELLICOTT:   It has to be borne in mind in reading this pleading that misrepresentation was a separate ground and a pleading should be given some degree of lenience.

GLEESON CJ:   Paragraph 21 was the allegation of contravention of section 52 and it relates back to paragraph 17.

MR ELLICOTT:    Yes, the representation ‑ ‑ ‑

GLEESON CJ:   I do not think that we are now concerned, are we – correct me if I am wrong – with paragraphs 18 and 19?

MR ELLICOTT:    No, we are concerned with 16 and 17.

GLEESON CJ:   Well, we are concerned primarily with 21, which is the allegation of the contravention of section 52.  That takes us back to the representation at paragraph 17.

MR ELLICOTT:    Yes, I agree with that, but, again, I submit that it would be wrong having regard to what has happened below to regard the issue as other than “Was the conduct misleading and deceptive?” and “What was the conduct?”  The conduct can be put in terms of a representation.  You can state it that way, but there may be other ways of stating it as long as the essence of it is that this person, the agent, through this document was saying that the pool was within the curtilage of the land.

My friend indicated a number of matters that he relied on.  Some of those were answered very quickly by your Honours.  Some of them are circumstances.  I thought my friend said – and I know it was not a particular matter to highlight the position of the pool.  Sorry to go back to the little inset photo, but it is there, it shows the position of the pool, and that photograph is very relevant to the survey. 

My friend’s argument seemed to be reducing it to what Justice Handley said, namely, that you imagine that this agent is really, in substance, handing a survey to my client and saying, “Here’s a survey.  It’s given to me by the solicitors.  You’d understand that I didn’t prepare it”, et cetera.  Now, that is far removed from the real facts, and I think I have already addressed that.  There is no sense in which this case is in the same order as Argy, because Argy was the handing out by the agent of a contract.  It is like handing out the survey.  To hand that document out is not to hand out a survey.

My friend made a number of comments, which I hesitate to deal with at this stage, about his notice of contention, but I did just want to say this.  To some extent, it arises out of my reference to the judgment of Justice Heydon in Fliegner’s Case, that is, that one can search the record of the judgments, but, if it got down to this point, that is, that there had to be evidence to establish that the representation was incorrect – that is to say, to show that the pool did not lie within the curtilage of the land, as I have put it – then the plaintiff, my clients, satisfied that by producing the certificate of title and the DP and the survey by Mr Bee.  That satisfied that.  Now, if they wanted to say something else, it was up to them to show that the mean high‑water mark was indeed such that the pool was within the curtilage of the land.

GLEESON CJ:   If it comes to the point, the notice of contention might depend on a question about onus of proof.

MR ELLICOTT:   I am saying that maybe in the long run there is some issue about onus of proof, but I am not conceding that.  I just wanted to draw that to the Court’s attention, but to say, in support of our clients, that they have established the situation, and one can search the judgments, one can find some documents that might suggest it was somewhere else, but there is no evidence that in itself establishes that the mean high‑water mark was otherwise than across the centre of the pool.

KIRBY J:   Is your contention, so that I understand it, that as the evidence was left, you contend that the evidence showed that the mean high‑water mark went through the pool and that if the respondent wished to displace that, the evidentiary burden of doing so rested on the respondent?

MR ELLICOTT:   Yes, we are driven to that argument, but we have arguments obviously before that which say that it was enough to say that the conduct was misleading or deceptive in the circumstances of this case, that they represented that this pool was clearly within the curtilage of the land and on no basis could that be substantiated from the point of view of a purchaser going to an auction at an early date if the purchaser had to rely on its own inquiries and go away and get a survey to establish where the mean high‑water mark was.

KIRBY J:   That seems to highlight the difference between where the mean high‑water mark runs and proving it, at a certain point.

MR ELLICOTT:   Yes.  On one view of what the misleading conduct was, it could be a matter of proving where it was.  If the title is tendered and it establishes that it is at a particular point through the pool, so far as the plaintiff is concerned, it has discharged its onus and that ‑ ‑ ‑

KIRBY J:   Is there a specific finding on the basis of the title as to where the ‑ ‑ ‑

MR ELLICOTT:   Yes.

KIRBY J:   You say that is enough to lift you up into the breach of the Act, that if there is an evidentiary matter ‑ ‑ ‑

MR ELLICOTT:   Yes.

HAYNE J:   Where is this finding?  What paragraph?

MR ELLICOTT:   I am talking about the title.  I did not think this was in issue.  So far as the title is concerned, it is clear that Mr Bee, the surveyor, surveyed the land, took the measurements at the side – and I understand what your Honour put to me – and ended up showing that if you joined those lines up where they ended on the side boundaries, the line would go through the centre of the pool.

KIRBY J:   If you have any findings that support that proposition I would like to have reference, not necessarily now, but ‑ ‑ ‑

HAYNE J:   Paragraph 80 is the high point, is it not?

MR ELLICOTT:   Paragraph 125:

I have found that Mr Hannigan’s report was inaccurate in showing the mean high water mark at a position beyond the swimming pool.  The correct position of the mean high water mark in a survey identification report for lot 14 is the position shown in Mr Bee’s report, in which the mean high water mark is depicted as traversing the pool.  Consequently, by making available to the plaintiffs’ solicitor a draft contract annexing Mr Hannigan’s report, Mr Harkins misrepresented the location of the mean high water mark in relation to the pool.

That is one, I think there are others.

HAYNE J:   Paragraph 80, I think.

MR ELLICOTT:   Your Honour likes paragraph 80.

HAYNE J:   No, it is not a question of liking, Mr Ellicott, but I do want to be referred to the whole of the judgment.

MR ELLICOTT:    Yes, I know, your Honour.  There was very little, if any, disagreement between the surveyors.  What emerges from their combined evidence is that the documentary mean high-water mark by title passes through the swimming pool, but there are good grounds for arguing that the mean high-water mark should now be located in a different position beyond the pool.  Now, that is as far as it went.  It does not put it anywhere.  It is not a conclusive finding.

KIRBY J:   There is a tension between those two paragraphs, is there not?

MR ELLICOTT:    Yes, there is a tension, but the tension is only to say that there is some evidence that suggests otherwise, but so far as proof is concerned, if you are looking at the question of onus, as I suggest Justice Heydon was in that case, then the title established it.  It is interesting to note and important to note that at page 842, the Court of Appeal said this at paragraph 27:

A Mr Souter surveyed the property in November 1997, probably at the request of Mrs Hayes who purchased the property from the vendor when it was resold.  His report (473) located the title boundary 17.4 metres from the water front on one side and 17.8 metres on the other, bisecting the pool.

So here is another survey from a different point.

The area of reclaimed land was said to be 248m².  The Department adopted this survey which became the basis for a new permissive occupancy granted to Mrs Hayes (485‑6).

That is after the Butcher contract.  So, you know, where did they get to?  But I do not want to get into the argument.

KIRBY J:   Paragraph 125 begins, “I have found that Mr Hannagan’s report was inaccurate”.  Where is that finding?  I think that is paragraph 82. 

MR ELLICOTT:   Paragraph 82:

It is misleading, regardless of whether there was “ambiguous” or even very strong evidence to support a contention that the mean high water mark by title should be changed.

KIRBY J:   Query whether that confuses the evidence of title or the title.  It really has not been thought out or solved in the primary judge’s decision or in the Court of Appeal.

MR ELLICOTT:   I would submit that is clear: 

It incorrectly depicts the relationship between the swimming pool and the mean high water mark by title. 

He is saying, here is the title deed.  He may not have a proposition in there that encompasses what I am putting to the Court, but it does not matter, we would submit.  Your Honours are being asked to go into this question and I am simply putting to you a reason why your Honours may think it is concluded in our favour another way, if they cannot point to some finding that the mean high‑water mark is somewhere else.  I think that is all I wanted to put to your Honours.

GLEESON CJ:   Thank you, Mr Ellicott.

MR FOSTER:   May I just put one submission?  I had understood I was not to go into the notice of contention at this point.

MR ELLICOTT:   Well, you did.

MR FOSTER:   I had understood that, and that it was a matter that was to be dealt with if and when it was necessary, and I am not complaining about my learned friend doing it, but I do not wish to be put in a position if it is thought that I am being put in the position that I am not allowed to develop an argument about it, and I understood from the Chief Justice that was the position.  Your Honour, that includes my questions of causation relating to the damages claimed, because all the damages claimed relate to the consequences of selling the other property.

GLEESON CJ:   Yes, we understand.

MR FOSTER:   Thank you, your Honour.

MR ELLICOTT:   Your Honours, could I hand up three pages?  They are 36, 37 and 377 in the transcript which are referred to in our submissions, but are not included in the appeal book.

GLEESON CJ:   Thank you, Mr Ellicott.  We will reserve our decision in relation to the issues argued in the appellants’ appeal today.  In the event that it becomes necessary to do so, we will relist the matter at a future date for argument on the respondent’s notice of contention and, if appropriate, the disposition of Mr Harkins’ notice of motion.

AT 4.23 PM THE MATTER WAS ADJOURNED