Sydney Harbour Casino Properties Pty Ltd v Coluzzi

Sydney Harbour Casino Properties Pty Ltd (the vendor) appealed to the New South Wales Court of Appeal against a decision of the primary judge who found it liable for misleading and deceptive conduct in relation to the sale of an apartment off the plan to Mr and Mrs Coluzzi (the purchasers). The purchasers had relied on representations made by the vendor's agent concerning the likely net return on the apartment.

The central legal issues before the Court of Appeal were whether the agent's representations constituted misleading or deceptive conduct in contravention of the Trade Practices Act 1974 (Cth), specifically section 51A, and whether the vendor was liable for such conduct. The court also considered whether the agent's conduct in guaranteeing a net return exceeded his authority and whether this gave rise to a claim for indemnity by the vendor against the agent. Causation and the credibility findings of the trial judge were also challenged.

The Court of Appeal held that the agent's representation that the purchasers would receive a "guaranteed" net return was not merely promissory but also a representation of fact, as it implied that the agent had reasonable grounds for making such a categorical statement. The court found that the agent lacked reasonable grounds to provide such a guarantee, and therefore, the representation was misleading and deceptive. The court upheld the trial judge's findings of fact and credibility, concluding that the purchasers had relied on the misleading representation, which caused them loss. The vendor was found liable for the agent's conduct.

The Court of Appeal dismissed the appeal, affirming the primary judge's finding of liability against the vendor for misleading and deceptive conduct. The court also found that the agent had exceeded his authority in providing the guarantee and that the vendor was entitled to an indemnity from the agent for the loss suffered as a result of the agent's unauthorised conduct. The specific orders are detailed in paragraph 91 of the judgment.