Williams v Pisano

In *Williams v Pisano*, the New South Wales Court of Appeal considered a dispute arising from the sale of a residential property. The plaintiffs, who purchased the property, alleged that representations made by the vendors' agent constituted misleading or deceptive conduct in trade or commerce, in contravention of the Australian Consumer Law. The vendors had renovated the property with the intention of selling it for a profit.

The Court was required to determine several key legal issues. Firstly, it had to decide whether the representations made by the agent to prospective purchasers of a residential property, in circumstances where the vendors had undertaken renovations with a view to selling at a profit, constituted conduct "in trade or commerce" for the purposes of the Australian Consumer Law. Secondly, the Court considered whether Part VIA of the *Competition and Consumer Act 2010* (Cth), concerning proportionate liability, applied to claims for damages arising from contraventions of provisions of the Australian Consumer Law other than section 18. Relatedly, the Court examined the definition of "concurrent wrongdoer" under section 87CB(3) and whether it encompassed a single act committed by multiple individuals jointly, and the application of section 87CD(1) regarding the apportionment of liability. Finally, the Court considered the appropriate measure of damages, specifically whether the market value of a property could be determined by reference to the cost of rectifying defects that involved breaches of statutory warranties.

The Court of Appeal allowed the appeal, setting aside the orders made by Hammerschlag J. The Court found that the conduct in question did not occur "in trade or commerce" as required by the Australian Consumer Law. Consequently, the plaintiffs' claim failed. The Court ordered that there be judgment for the second defendant (the appellant) and that the plaintiffs pay the second defendant's costs of the trial. The respondents were ordered to pay the appellant's costs of the appeal, with a certificate granted under the *Suitors’ Fund Act 1951* (NSW) if otherwise qualified.