Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Hyder v McGrath Sales Pty Ltd [2018] NSWCA 223 Hearing dates: 23 August 2018 Decision date: 04 October 2018 Before: McColl JA at [1];
Macfarlan JA at [2];
Emmett AJA at [108]Decision: Appeal dismissed with costs.
Catchwords: CONSUMER LAW – misleading and deceptive conduct – sale of residential property – pre-sale statements as to availability of private parking made by respondent real estate agent orally and in advertising material – whether primary judge erred in finding that real estate agent engaged in misleading and deceptive conduct but did not cause purchaser any loss – whether primary judge erred in accepting respondent’s valuation evidence – whether primary judge erred in finding purchaser two-thirds contributorily negligent – whether primary judgment could be supported on alternative ground that reasonable purchasers would have understood that real estate agent was merely passing on information obtained from the vendor and was thus a mere conduit Legislation Cited: Civil Liability Act 2002 (NSW), s 5D(3)(b)
Competition and Consumer Act 2010 (Cth), sch 2 Australian Consumer Law ss 18, 137B, 236
Conveyancing Act 1919 (NSW), s 66WCases Cited: Borzi Smythe Pty Ltd v Campbell Holdings (NSW) Pty Ltd [2008] NSWCA 233
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60
CH Real Estate Pty Ltd v Jainran Pty Ltd; Boyana Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37; (2010) 14 BPR 27,361
Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55
Como Investments Pty Ltd (in liq) v Yenald Nominees Pty Ltd (1997) ATPR 41-550
Dalton v Lawson Hill Estate Pty Ltd [2005] FCAFC 169; (2005) ATPR 42-079
Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75
Henville v Walker (2001) 206 CLR 459; [2001] HCA 52
House v The King (1936) 55 CLR 499; [1936] HCA 40
John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR 41-249
Pettey v Parsons [1914] 2 Ch 653
Tarabay v Leite [2008] NSWCA 259
Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579
Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65Texts Cited: Peter Butt, Land Law (7th ed, 2017, Thomson Reuters) Category: Principal judgment Parties: Amy Louise Hyder (Appellant)
McGrath Sales Pty Limited (Respondent)Representation: Counsel:
Solicitors:
GKK Rich SC / J Sleight (Appellant)
RCA Higgins SC / PJ Strickland (Respondent)
Neville & Hourn Legal (Appellant)
Colin Biggers & Paisley Pty Ltd (Respondent)
File Number(s): 2017/385209 Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Equity – Commercial List
- Citation:
- [2017] NSWSC 1647
- Date of Decision:
- 30 November 2017
- Before:
- Parker J
- File Number(s):
- 2016/107772
HEADNOTE
[This headnote is not to be read as part of the judgment]
In February 2015, Mrs Amy Hyder, the appellant, completed the purchase of a large residential property in Sydney for $9.4 million. She acquired the property as…
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Details
- Case
- [2018] NSWCA 223
- Decision Date
CaseChat Overview and Summary
The appeal concerned the sale of residential property where the respondent real estate agent made pre-sale statements regarding the availability of private parking, both orally and in advertising material. The primary judge found that the agent had engaged in misleading and deceptive conduct but had not caused the purchaser any loss. The purchaser appealed this decision, also challenging the primary judge's acceptance of the respondent's valuation evidence and the finding of two-thirds contributory negligence.
The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the real estate agent engaged in misleading and deceptive conduct, but that this conduct did not cause the purchaser any loss. Further, the court considered whether the primary judge erred in accepting the respondent's valuation evidence and in finding the purchaser two-thirds contributorily negligent. An alternative ground for supporting the primary judgment, namely that a reasonable purchaser would have understood the agent was merely a conduit for information from the vendor, was also in contention.
The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The court reasoned that while the agent's conduct was misleading and deceptive, the purchaser had failed to establish that this conduct caused them any loss. The primary judge's acceptance of the valuation evidence was also found to be sound. Furthermore, the finding of contributory negligence was upheld, reflecting the purchaser's own responsibility in the transaction. The court found that the primary judgment could be supported on the alternative ground that the agent acted as a mere conduit for information provided by the vendor, a reasonable interpretation for purchasers to adopt. The appeal was dismissed with costs.
The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the real estate agent engaged in misleading and deceptive conduct, but that this conduct did not cause the purchaser any loss. Further, the court considered whether the primary judge erred in accepting the respondent's valuation evidence and in finding the purchaser two-thirds contributorily negligent. An alternative ground for supporting the primary judgment, namely that a reasonable purchaser would have understood the agent was merely a conduit for information from the vendor, was also in contention.
The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The court reasoned that while the agent's conduct was misleading and deceptive, the purchaser had failed to establish that this conduct caused them any loss. The primary judge's acceptance of the valuation evidence was also found to be sound. Furthermore, the finding of contributory negligence was upheld, reflecting the purchaser's own responsibility in the transaction. The court found that the primary judgment could be supported on the alternative ground that the agent acted as a mere conduit for information provided by the vendor, a reasonable interpretation for purchasers to adopt. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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