Jebeli v Modir and Golyaei [2005] NSWCA 184

New South Wales Court of Appeal

CITATION: Jebeli v Modir and Golyaei [2005] NSWCA 184

HEARING DATE(S): 12 May 2005

JUDGMENT DATE: 2 June 2005

JUDGMENT OF: Giles JA at 1; Tobias JA at 2; McColl JA at 83

DECISION: Appeal dismissed with costs

CATCHWORDS: TRADE PRACTICES - Fair Trading - Misleading or deceptive conduct - Representation by mortgage broker to purchaser that price of unit was "off the plan" price - Whether representation in "trade or commerce" - Whether purchaser relied on representation - Reasonableness of reliance - Whether purchaser suffered damage as a result of reliance - Fair Trading Act 1987 ss 42, 68 - NEGLIGENCE - Negligent misrepresentation - Whether mortgage broker's conduct in breach of duty of care to purchaser - EVIDENCE - Appeals - Fresh evidence - Evidence of attempt by party to suborn witness - Whether evidence should be admitted on appeal as fresh evidence - Whether high degree of probability that evidence would have produced different finding at trial - Whether evidence an admission of party having a bad case - Supreme Court Act 1970 s 75A(7), (8) - EVIDENCE - Illegally obtained evidence - Party tape-recorded conversation without knowledge or consent of other party - Whether evidence should have been admitted - Gravity of contravention - Whether contravention deliberate or reckless - DAMAGES - Correct measure where misleading conduct induces party to enter contract of purchase

Fair Trading Act 1987 Listening Devices Act 1984 LEGISLATION CITED: Evidence Act 1995 Supreme Court Act 1970 Trade Practices Act 1974 (Cth)

Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 Plimer v Roberts (1997) 80 FCR 303 Shaddock and Associates Pty Limited v Parramatta County Council (No 1) (1981) 150 CLR 225 Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241 O'Brien v Smolonogov (1983) 53 ALR 107 Argy v Blunts & Lane Cover Real Estate Pty Limited (1990) 94 ALR 719 Akins v National Australia Bank (1994) 34 NSWLR 155 CASES CITED: Moriarty v London Chatham Railway Company (1870) LR 5 QB 314 See v Hardman [2002] NSWSC 234 Potts v Miller (1940) 64 CLR 282 Gould v Vaggelas (1985) 157 CLR 215 Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1 Sydney Harbour Casino Properties Pty Limited v Coluzzi [2002] ANZ ConvR 253 HTW Valuers (Central Qld) Pty Limited v Astonland Pty Limited (2004) 211 ALR 79 Thompson v Henderson & Partners (1990) 58 SASR 548