Commercial & General Acceptance Ltd v Nixon [1981] HCA 70

High Court of Australia Gibbs C.J. Mason, Aickin, Wilson and Brennan JJ. Commercial & General Acceptance Ltd v Nixon [1981] HCA 70

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Gibbs C.J.

This is an appeal from a decision of the Full Court of the Supreme Court of Queensland affirming a judgment given by Connolly J. in favour of the respondents. The facts are not in contest. The appellant, Commercial and General Acceptance Ltd., as mortgagee in possession of the respondents' land, exercised its power of sale. For this purpose it employed a firm of real estate agents to conduct the sale by auction. The appellant instructed the agents that the sale should be advertised in The Courier-Mail. However, the one advertisement published in that newspaper was unsatisfactory in a number of respects. There is no challenge to the finding that, because the auction was insufficiently advertised, there was a failure to take reasonable care to ensure that the property was sold at its market value, and that in consequence the property was sold at an undervalue. The appellant was not itself directly responsible for the insufficient advertising; it left the matter to the agents whom it had chosen. There is no suggestion that the agents were other than competent, but they were at fault in the arrangements they made to advertise the sale in this case. The question is whether in these circumstances it was right to hold the appellant liable for the loss suffered by the respondents as a result of the sale of the property at less than its market value. No challenge was made before us to the assessment of the damages.

The decision of this question depends upon the construction and effect of s. 85(1) of the Property Law Act 1974-1976 Q.. That sub-section provides as follows: