Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, KIRBY, HAYNE AND HEYDON JJ

JEFFREY GORDON BUTCHER & ANOR APPELLANTS

AND

LACHLAN ELDER REALTY PTY LIMITED RESPONDENT

Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60

2 December 2004

S548/2003

ORDER

1. Appeal and cross-appeal dismissed. 2. Appellants to pay respondent's costs. 3. Renewed application by Robert Edward Harkins for special leave to appeal from the judgment of the Court of Appeal of the Supreme Court of New South Wales made on 28 August 2002 dismissed.

On appeal from the Supreme Court of New South Wales

Representation:

R J Ellicott QC with G A Moore for the appellants (instructed by Williams Woolf & Zuur)

L G Foster SC with I R Pike for the respondent (instructed by Murray Stewart & Fogarty)

J McC Ireland QC seeking leave to appear on behalf of Robert Edward Harkins (instructed by Mr Harkins)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Butcher v Lachlan Elder Realty Pty Limited

Trade practices − Misleading or deceptive conduct − Sale of waterfront property − Real estate agent published brochure containing survey diagram obtained from vendor's solicitors − Survey diagram alleged to be inaccurate − Brochure contained a disclaimer by the real estate agent as to the reliability of information from other sources − Purchasers intended to develop property in reliance on the survey diagram − Whether real estate agent made a representation − Whether real estate agent engaged in misleading or deceptive conduct or conduct "likely to mislead or deceive".

Words and phrases – "misleading or deceptive conduct", "representation".

Fair Trading Act 1987 (NSW), s 42.

Trade Practices Act 1974 (Cth), ss 52, 82.

1. GLEESON CJ, HAYNE AND HEYDON JJ. On 18 February 1997, the appellants, Jeffrey Gordon Butcher and Judith Kay Radford ("the purchasers"), agreed to buy 10 Rednal Street, Mona Vale ("the Rednal land") from its then registered proprietor, Robert Edward Harkins ("the vendor"). The Rednal land was at all material times property under the Real Property Act 1900 (NSW). It was lot 14 in Deposited Plan 9500, evidenced by Folio Identifier 14/9500. The Rednal land was a valuable waterfront property on the southern shore of Pittwater, a large bay to the north of Sydney separated from the ocean by a narrow peninsula. The respondent real estate agent, Lachlan Elder Realty Pty Ltd ("the agent"), acted for the vendor in that sale. 2. The purchasers sued the agent for damages for misleading or deceptive conduct. The purchasers claimed (among other things) that a brochure issued by the agent was misleading because it misrepresented the location of the boundary of the Rednal land abutting Pittwater as being on the Pittwater side of a swimming pool on the land. 3. In the Supreme Court of New South Wales, Austin J dismissed that claim[1]. The Court of Appeal (Handley, Beazley and Hodgson JJA) dismissed an appeal[2]. By special leave, the purchasers appealed to this Court.