Harding v Bourke (No 2)

The appeal concerned a dispute between Harding and Bourke, brought before the New South Wales Court of Appeal. The underlying matter involved allegations of misleading and deceptive conduct and breach of contract.

The primary legal issues before the Court of Appeal were whether the primary judge had erred in finding that the respondent had engaged in misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) and, relatedly, whether there had been a breach of contract. The Court also considered the appropriate measure of damages.

The Court of Appeal analysed the evidence presented at trial, focusing on the representations made by the respondent and their impact on the appellant. The judges applied established principles of contract law and the interpretation of s 52 of the Trade Practices Act, considering the objective meaning of the representations and whether they were likely to mislead or deceive a reasonable person in the position of the appellant. The Court ultimately found that the primary judge's findings were sound and that the respondent's conduct did indeed amount to misleading and deceptive conduct. The Court also affirmed the primary judge's assessment of damages.