Mark Bain Constructions Pty Ltd v Avis

The matter involved two appeals, one from the decision of the Trial Division in the matter of Avis and the other from the decision of the Trial Division in the matter of Barnscape. Both appeals were against Mark Bain Constructions Pty Ltd, the developer of luxury apartments. The respondents, separately, entered into contracts to purchase luxury apartments from the developer, relying on representations made by real estate agents that the ocean view from the apartments would be uninterrupted. Upon settlement, the respondents were dissatisfied with their view, as it was obstructed by a new building. They claimed that the representations were false, misleading, and deceptive, contravening sections 52 and 53A of the Trade Practices Act 1974 (Cth). The developer argued that the real estate agent lacked authority to make such representations.

The primary legal issues involved the scope of the real estate agent's authority, the nature of the representations, and the assessment of damages. The developer contended that the real estate agent was only authorised to market the apartments for sale, and the representations were not authorised. The court had to determine whether the trial judge erred in finding that the real estate agent had actual authority and whether the representations were about future matters. Additionally, the developer argued that the respondents did not rely on the representations, and the trial judge erred in finding otherwise. Lastly, the developer challenged the trial judge's decision to assess damages in accordance with the abandoned measure of loss.

The court found that the real estate agent's representations fell within the scope of its actual authority. The court dismissed the developer's argument that there was no representation as to a future matter. The court also held that the trial judge did not err in finding that the respondents relied upon the representations and were induced into the contract. The court found that the trial judge did not err in assessing damages in accordance with the abandoned measure of loss, despite the developer's argument of substantial prejudice. The court also ruled that the compromise between the respondents and the second defendants did not release the developer from liability.

The court allowed both appeals, set aside the orders made by the Trial Division, and ordered judgment for the respective plaintiffs. The developer was ordered to pay the plaintiffs' costs up to a certain date, with further costs assessed on the standard basis. The plaintiffs were ordered to pay certain costs incurred by the developer.