Pound and Anor & Fisher and Anor (No. 2)

This matter concerned a dispute between the applicants, Pound and Anor, and the respondents, Fisher and Anor, before Boland J of the Supreme Court of New South Wales. The core of the dispute involved allegations of misleading and deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)) and the *Contracts Review Act 1980* (NSW). The applicants sought to set aside a contract for the sale of a business, alleging that representations made by the respondents regarding the business's profitability were false and misleading.

The primary legal issues before the Court were whether the respondents had engaged in misleading or deceptive conduct in contravention of section 52 of the *Trade Practices Act 1974* (Cth), and whether the contract for the sale of the business was unjust within the meaning of section 7 of the *Contracts Review Act 1980* (NSW). The Court was required to assess the truthfulness of the representations made by the respondents concerning the business's financial performance and to determine if these representations induced the applicants to enter into the contract.

In her reasoning, Boland J considered the evidence presented by both parties, including financial records and oral testimony. Her Honour found that the representations made by the respondents regarding the business's profitability were indeed misleading and deceptive, as they did not accurately reflect the true financial position of the business. The Court applied the principles established in cases concerning misleading and deceptive conduct, focusing on whether the conduct was likely to mislead or deceive a reasonable person in the position of the applicants. Furthermore, the Court found that the contract was unjust due to the misleading representations, applying the factors outlined in section 9 of the *Contracts Review Act 1980* (NSW), including the circumstances surrounding the making of the contract and the relative bargaining positions of the parties.

Consequently, Boland J ordered that the contract for the sale of the business be set aside. The applicants were relieved from their obligations under the contract, and the respondents were ordered to repay the purchase price to the applicants.