Butcher & Anor v Lachlan Elder Realty Pty Ltd [2004] HCATrans 87 (31 March 2004)

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Butcher & Anor v Lachlan Elder Realty Pty Ltd [2004] HCATrans 87 (31 March 2004)

Last Updated: 1 April 2004

[2004] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S548 of 2003

B e t w e e n -

JEFFREY GORDON BUTCHER

JUDITH KAY RADFORD

Appellants

and

LACHLAN ELDER REALTY PTY LIMITED

Respondent

GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 31 MARCH 2004, AT 10.22 AM

Copyright in the High Court of Australia

MR R.J. ELLICOTT, QC: Your Honours, I appear for the appellants with MR G.A. MOORE. (instructed by Williams Woolf and Zuur)

MR L.G. FOSTER, SC: If the Court pleases, I appear with MR I.R. PIKE for the respondent. (instructed by Murray Stewart and Fogarty)

MR J.McC. IRELAND, QC: Your Honours, could I announce my intention to seek leave to appear in this matter on a limited basis, which I think would have been communicated to the Court by a notice of motion which has been filed on behalf of Mr Robert Edward Harkins.

GLEESON CJ: We have read your notice of motion. Before we proceed to deal with that, Mr Ireland, there is a matter that we should raise first with Mr Ellicott. Mr Ellicott, the issues raised by the notice of contention and sought to be raised by Mr Ireland may call into question whether this was a suitable case for a grant of special leave to appeal. Is there anything you would like to say about that?

MR ELLICOTT: Your Honour, what we would like to say is that, although the Court can change its mind - - -

GLEESON CJ: I am not thinking about a problem - although for my part I see a problem – about the merits of the issues in the appeal. I imagine Mr Foster is going to be saying to us that the factual and legal complexities of the issues raised by the notice of contention explain why real estate agents put disclaimers like this in brochures and why it is not reasonable to bind them to representations about what appears in surveys, but I am thinking rather of the question of the premise that needs to be established before you can reach a conclusion that what was involved was a misrepresentation at all, which in turn, of course, raises an issue as to what was the nature of the representation.

MR ELLICOTT: Your Honour, to answer all those questions one would have to consider the matters raised on the appeal.

HAYNE J: Is that right? Is the premise for your argument that the title to the land in question extended to a boundary near Pittwater identified by measuring the distance shown on the deposited plan?

MR ELLICOTT: Your Honour, the case could be put that way, but that is not how we would put it. What this misrepresentation was was that this swimming pool was within the curtilage of the land being sold, and the misrepresentation to our client was to that effect, and that - - -

HAYNE J: I understand that. Where then is the title boundary identified in deposited plan 9500 which we find at page 490? Is it the mean high-water mark or is it a line identified by measuring the distances shown on that plan from the roadside frontage?

MR ELLICOTT: We would say, first of all, it is the points between those distances on the waterside frontage, in other words, if you - - -

HAYNE J: I had understood that to be the premise to the argument.

MR ELLICOTT: No. Your Honour asked me a question, but we are here because our clients had misrepresented to them a vital matter and that vital matter was that this swimming pool was within the curtilage of the land. On any view, it either was not or could not possibly be within the curtilage of the land and, therefore, the agents and the vendor had seriously misrepresented a vital feature of this land so far as they were concerned because what they wanted to do, as your Honours have read, they wanted to take this swimming pool out – not replace it somewhere else, but to get rid of it – to put a smaller pool at the side and to extend the entertainment area at the back.

GLEESON CJ: So the representation was that the swimming pool was within the curtilage of the land that your client would acquire if he completed the sale.

MR ELLICOTT: Yes.

HAYNE J: A necessary step in that is the identification of the boundary of the land identified in the certificate of title, correct?

MR ELLICOTT: A step in that is not that it is by itself. What I mean is this, that when you come to the survey that was done what it shows is that the swimming pool was – and if your Honours would not mind me just going into the facts a little because - - -

GLEESON CJ: Is it convenient to work from the brochure itself?

MR ELLICOTT: Not on what I am putting to your Honours. It is certainly convenient to look at the brochure, but I just wanted to show your Honours the reality and if your Honours would just go - - -

HAYNE J: The reality begins with the title, Mr Ellicott. That is where the reality begins, not with the survey. It begins with the title.

MR ELLICOTT: I understand what your Honour is putting to me, but I just want to indicate something which is rather important to my clients and how they reacted to this. Could I take your Honours to volume 3 at page 576. That is a photograph of the swimming pool and we know that the survey that was done, according to the measurements on the title, put the mean high-water mark through the middle of that pool more or less so that their rear boundary was not, if one looks on the next page, at that pool fence which is shown at 577 – you can see the pool fence at the bottom of the photograph – but it was so many metres, whatever it was, within the pool.

GLEESON CJ: Just sticking with page 578, what is the area with all the grass over it?

MR ELLICOTT: That would be, according to what is shown, the reclaimed area.

GLEESON CJ: Is that the subject of a permissive occupancy?

MR ELLICOTT: That would be the subject of a permissive occupancy, yes. The trial judge said that it was a reasonable assumption for anybody looking at this brochure to assume that what was shown as the mean high-water mark, or MHWM, on the plan was that fence which is shown on that inset photograph.

GLEESON CJ: So what your client thought he was buying was land which was bounded by the pool fence but from which there extended out, presumably to a boat ramp or something, a permissive occupancy?

MR ELLICOTT: That is right, but he thought he was buying land that had within its curtilage a swimming pool and an area which would enable him to do something with that pool and extend his entertainment area. My reason for going to 576 is simply to indicate in a stark way the impracticability of my clients being able to do that once, if you like, the true facts were known according to the measurements on the title.

GLEESON CJ: You can probably express the representation in different ways but a simple way of expressing it, your clients’ understanding was that the boundary of the land to which you would take title extended to the back fence.

MR ELLICOTT: Yes, that is a simple way of putting it and that is a reasonable conclusion for them to have drawn on the basis of the document. In a sense, the issues raised by the notice of contention, those issues come in rather as a side wind. They were never actually part of their major case; they simply adopted what Mr Ireland had said below.

GLEESON CJ: That is why Mr Ireland says it would be so incongruous to proceed to deal with the notice of contention.

MR ELLICOTT: He says that but, your Honour, one has to ask the question whether or not that contention, even if the Court considers it is of any relevance to the misleading or deceptive conduct, because the misleading or deceptive conduct, as I have expressed it, is about a pool being within the land.

HAYNE J: And a premise for that proposition is that it is not and it is to that which I draw your attention. I ask what is the title that is demonstrated by reference to deposited plan 9500?

MR ELLICOTT: The title is actually the land with the measurements with something drawn across it which is called the mean high-water mark. That is the title and one can go to cases and authorities about the meaning of mean high-water mark and where it is and the doctrine of accretion, but at the end of the day, under the system in New South Wales, whatever it may be in Victoria or somewhere else, the practice and the law in New South Wales is that if you want to change a title in relation to the mean high-water mark then you have to get a survey and that has to satisfy certain requirements.

It has to be approved by the Surveyor-General and then if the adjoining land, as it usually is, is vested in the Crown then the relevant Minister has to consent. Then, if the consent goes forward, the Registrar-General will endorse it on the title or in some other way. Perhaps what would happen would be there would be another deposited plan and the title would refer to it when the new title would be issued, but so far as this particular title is concerned, if we are going to ask a question about title, this title was fixed at those side measurements.

HAYNE J: That is to say, you take issue with what Mr Moore wrote in (1968) 41 Australian Law Journal 532 at 533 where he says that:

The common tendency to regard measurements shown in Certificates of Title as conclusive arises from a misunderstanding of the Real Property Act [(NSW)] provision that, subject to certain exceptions, the title . . . is indefeasible.

You take issue with that proposition?

MR ELLICOTT: I take issue, not with that proposition, but I take issue – or my clients do, I should say – with the proposition that if you are shown a brochure with a survey on it and an inset photograph and you are interested in whether or not there is a pool within the curtilage of the land, that is telling you that within the title there is a pool, and that is a very significant matter.

GLEESON CJ: Or to put it another way, you are interested in knowing whether knowing whether all the improvements that have been erected by your predecessor in title are on land to which he had title?

MR ELLICOTT: Yes. This is why we say it is really irrelevant, but if you slip across into the question of the actual title and the question of ownership and what your certificate of title proves, or what the certificate may prove, under the law is, first of all, that you are the owner of lot 14 in deposited plan 9500. It does not show a swimming pool, of course, because it was created in 1919, but that then tells you, under the law, that you have a right, maybe – but it depends on what has happened – you may have a right to land by accretion which goes beyond that shown on your actual deposited plan.

That is one issue as between the Minister, if it is the Minister, or an adjoining owner, if it is a private owner, and yourself. That is that issue. But when one is saying, “I am selling you this land”, you are not selling a bundle of trouble with a doctrine of accretion hanging to it and a lot of inquiries have to be made in order to get there. You want to know what is it you are selling, Mr Smith, and he indicates quite clearly, we say, on this “This is what I am selling, and what is of importance to you, apparently, is that the pool is inside it, and I am telling you that the pool is inside it.”

If it so happens that the mean high-water mark runs through the pool according to the title, because that is what is shown, lot 14, then that is it. No purchaser should be expected, on this information, to have to go off and engage in a rather difficult exercise of getting surveyors to survey what has happened since 1919 and satisfy the Registrar-General or the Minister or the Surveyor-General that the mean high-water mark is where it is shown.

GLEESON CJ: Is part of your answer to the notice of contention that your client was not the least bit interested in buying a lawsuit?

MR ELLICOTT: That is what I have just put.

GLEESON CJ: And that even if, after a trip to the High Court, it had been able to be established that there was a capacity to require the Minister to agree to take certain steps in relation to fixing up the documentary title, that just was not what the purchaser was interested in purchasing?

MR ELLICOTT: No.

HAYNE J: That raises the most fundamental question about the Torrens system. It raises a fundamental question not agitated in the courts below, or, at least, not dealt with with any perspicuous attention to detail. The question of principle which it raises is this. Does the title show entitlement to land bounded by metes and bounds, or does it show title to land bounded on the waterside by whatever is the mean high-water mark from time to time? If it is the latter, no question of failing to get title to the land depends upon any administrative step, you have title to whatever is mean high-water mark.

That is why I say, it seems to me that a necessary premise for the debate in the courts below, and for the argument here, appears to be that the title to lot 14 on the waterside terminates at a point determined by measurement, rather than at a point determined by the location of a physical feature, namely, mean high-water mark. Now, it is the validity of that premise which seems to me to raise quite fundamental questions about land law.

MR ELLICOTT: I understand that, your Honour, and in a sense I am not arguing against it. Your Honour might think that is a compelling concession by me, but I am not wanting to argue against it. I would understand this, apart from this case, that if the registered proprietor looked at his title and said, “Well, I think the mean high-water mark goes a lot further than that”, and then sets about it, it was the case before a.....Act called the Coastal Protection Act, which affects the doctrine of accretion in New South Wales, if he set about the task and said, “I’ll get a surveyor and then we’ll go through this system” – and it can take years. I had a recent case where it did not even finish after six or eight years.

In other words, the process is a very lengthy one and can be very debatable, particularly with foreshores being of great interest to governments. I can understand that the proposition might well be correct that “mean high-water mark” means as you determine it from time to time according to certain principles, including the doctrine of accretion. I understand that and that may well be the law and it may well be that this particular vendor or registered proprietor could go ahead and undertake that task and prove that it did not go through the middle of the swimming pool. It actually was where it was shown on the surveyor’s plan. It so happens, of course, that the purchaser from Mr Harkins has a title which confirms that the mean high-water mark is exactly through the pool – in other words, where our surveyor put it.

That is one issue, but we are putting it on the basis that really the misrepresentation that is so serious is one that introduces something that is not on the title but it is very significant and it would not matter on one view, but perhaps it does in the long run – I do not need to put it any other way than to say there is this plan on the back, but when you read that in conjunction with the inset photograph, then the representation is not about mean high-water mark or where it is located; it is about whether there is a pool within the rear boundary of the land. That is borne out by the combination of those two things. That is what we say about it, your Honours. I would be repeating myself if I went any further.

GLEESON CJ: All right. We will just retire for a few moments to consider what course we will take.

AT 10.47 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.00 AM:

GLEESON CJ: Mr Ellicott, we will hear full argument from you in support of your appeal and then we will have another look at where we go from there.

MR ELLICOTT: Your Honours, it is really a short point and I have gone a distance already. What we are saying basically is that when you look at this brochure – because really what both the Court of Appeal and Justice Austin did was to take hold of that passage in Yorke v Lucas and apply it to this case and do so in the context that this was a mere passing on of information. Now, I will come to Yorke v Lucas a bit later, but the first part of our case, in effect, is this brochure but there are other aspects that I want to refer to. One, first of all, has - - -

KIRBY J: What do you mean by that? One could say it is a mere brochure with a big display in it?

MR ELLICOTT: I want to say that it is obviously a promotional brochure, and that is how any purchaser would see it - - -

GLEESON CJ: There are actually two disclaimers, one disclaimer to protect Lachlan Elder Realty and another disclaimer to protect Williams Design Associates.

MR ELLICOTT: Yes.

GLEESON CJ: So presumably the argument you make against Lachlan Elders Realty Pty Limited applies equally to Williams Design Associates?

MR ELLICOTT: I assume so, whoever they may be. So one has some small print disclaimers which in the context of a representation about a significant matter of interest to any purchaser, namely, whether or not what is represented to be within the curtilage of the land, is accurate or not, and what this brochure is telling a would-be purchaser – and nothing turns on the class of purchaser here. It may be it is people who want to buy a waterfront property and have more than a million dollars to spend, but that does not mean they are necessarily of a certain level of intelligence. It is just that they have been lucky enough to put together a million dollars. They may be people who have the ordinary capacities of other people in the community, so nothing turns on that and they are going to look at this and form a view that that pool is within the curtilage of the land or however they would express it. In other words, they are buying a block of land which has a reclaimed area between it and Pittwater and the pool is within the land, and that is the clear statement there. When you read this in small print, it says:

All information contained herein is gathered from sources we believe to be reliable.

That is not exactly telling you that you make your own inquiries.

GLEESON CJ: Well, it goes on to say you should make your own enquiries.

MR ELLICOTT: I know it does, but that sentence is really pointing away. It is saying, “We have got this from reliable sources”. The next sentence, if anything, although it says:

we cannot guarantee it’s accuracy –

such a disclaimer, we would say – on the authorities, but just as a matter of argument – could hardly overbear a clear representation, we would submit, on the face of this brochure, that that pool is within the curtilage of the land.

GLEESON CJ: On any view of your case, this is a representation about title.

MR ELLICOTT: It is, yes. We were buying some land.

GLEESON CJ: And on any view of the facts of the matter, the subject of title is potentially a matter of considerable factual and legal complexity.

MR ELLICOTT: That is, yes, but what ought not to be – if an agent is selling something, an agent ought to know what he is selling. You would expect him to know that these are the boundaries of the land, or this is the house you are buying and it has a pool attached and this attractive entertainment area. You would expect an agent to know that. If he is representing that then, yes, it is a matter of title, but he is saying something more than that. He is saying, “Not only are we selling you lot 14, but lot 14 has certain qualities about it. All of that structure is within it and so is the swimming pool”.

If it turned out that the mean high-water mark – and this may not be so stupid as it sounds – ran through a section of the building - your Honours will see on the plan it has “V”, and I assume that is verandah. Supposing it went along the line which was closest to the street. This was probably – and it does not matter that this may not have been proven; I am just illustrating something - this is probably an old house that may have been two-storeyed that has been added to. When it was built, the mean high-water mark – it would have been after 1919, but in 1964 I think it was determined also on the evidence.

When it was built, the mean high-water mark may have been thought to be further back but, in fact, it went through the verandah. If there was a representation that, according to this brochure, not different to the brochure but it turned out it went through the verandah, it would be – some people might say it was only a swimming pool, but the same proposition will attach to a situation where the mean high-water mark went through the house itself.

GLEESON CJ: What are the bearings here, Mr Ellicott? Is this a north-south facing block?

KIRBY J: North-east.

MR ELLICOTT: The water is to the north.

GLEESON CJ: So the mean high-water mark is to the north?

MR ELLICOTT: Yes, that is right.

GLEESON CJ: It is on the southern side of Pittwater?

MR ELLICOTT: Yes. I think it is in the Mona Vale area. So the proposition that is put as a matter of title really has to encompass a lot of situations, because the mean high-water mark could, from a practical point of view, be running through what is now part of the house. If it was, it seems an extraordinary result that that is said to be a representation by an agent which the agent is free from. We say it makes no difference in either event because, if there is a significant matter which would be regarded as significant to any purchaser, namely that the swimming pool is within the land or that the back verandah is in the land or that the lounge room is within the land, whatever it may be, it would be an extraordinary situation if that was not in the circumstances without a clear disclaimer – and I will come to that in a moment as to what a clear disclaimer is – it would be an extraordinary situation if that was not misleading and deceptive conduct under section 52.

Now, this brochure is not a document which is merely passing on some information. If I could just get the statement out of Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 and take the Court through it.

KIRBY J: Just before you go to that, is there any significance in the fact that the land is for sale by auction?

MR ELLICOTT: Yes, your Honour, I was coming to that.

KIRBY J: And is there significance in the authenticity of the apparent photocopy reproduction of the surveyor’s drawing?

MR ELLICOTT: Yes. It is not just a mud map. It is a survey, and it is telling you that the swimming pool is within the land. If we can go to Yorke v Lucas, in the light of what your Honour has said, because I think the one important thing is to work out whether or not this is a mere case of passing on information, or whether or not something quite different has happened. They say, almost halfway down on 666:

That does not, however, mean that a corporation which purports to do no more –

that is important –

than pass on information supplied by another –

Has the person here done any more? We say it has. Yes, it is certainly apparently reproduced a survey, but, not only that, on the other side it has shown the land and it has shown the swimming pool within the fence. That is a clear representation that not only is the swimming pool within a fence, but it is also within the land, because, as the trial judge said, a reasonable person would assume that the mean high-water mark was approximately where that fence is shown. Therefore, yes, they have purported to do more –

must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information –

First of all, the total information – you can say that the survey may not be sourced with the agent, but the other information is, that is to say, what is shown on the front of the brochure and the photographs –

and that it expressly or impliedly disclaims any belief in its truth or falsity –

That disclaimer – let us assume it is magnified for a moment, apart from the small print. If it is magnified, it does not disclaim any belief, either “expressly or impliedly . . . in its truth or falsity”, first of all, because the first sentence is saying the source is one that:

we believe to be reliable. However we cannot guarantee –

you know, it is not 100 per cent sure –

it’s accuracy and interested persons should rely on their own enquiries.

That is not expressly or impliedly disclaiming any belief in its truth or falsity. So what Yorke v Lucas is talking about is that a person who merely passes on information, if that information is what we would say very likely to be material or very material to a purchaser, it needs the purchaser to be told or something should be written in plain print near the information that they should check its accuracy and they do not stand behind it, words to that effect, and they say “merely passing it on for what it is worth”.

Now, how could one say that this brochure is “merely passing it on for what it is worth”? This brochure is passing it on so they can sell the property to a person and make it attractive. It has a pool between the colonnade, the verandah, and this fence. What reasonable person would say the pool might not be on the land? There is no warning there. There is nothing to tell you, except apparently some erudite doctrine of accretion that a person should know about – a very important doctrine I hasten to add, but nevertheless to the ordinary purchaser, unless they are a specialist in high-water marks or have a special knowledge of it, they are not going to know too much about the doctrine of accretion, but quite apart from that - - -

KIRBY J: Is your point that if there had been some mistake concerning the garage, that is one thing, but where you are selling a waterfront property, shown with all the beauty of a waterfront property and the amount that is at stake, then the position of the mean high-water mark is a very material matter and especially in the context of the representation concerning the “large outdoor entertaining balcony lapping up the year round” and so on, and that this is a very material matter to this particular purchase?

MR ELLICOTT: Yes, your Honour, and fixing on - - -

KIRBY J: Because one would want to be rather careful any principle this Court laid down concerning brochures because real estate agents are not skilled lawyers and conveyancers and there are bound to be mistakes that will arise from time to time, and perhaps puffing and overstatement and overbroad representations that are of an immaterial kind. But if you are asking what is material in a waterfront property, then the actual situation of the boundary is a pretty important matter.

MR ELLICOTT: Yes.

GLEESON CJ: If it was a property in Redfern, closely settled and closely developed, the question whether properties were built within the right boundaries or whether there is an encroachment from a neighbouring property could involve a great deal of money, but it could also be a highly technical question.

MR ELLICOTT: Yes.

HAYNE J: And would ordinarily be the subject of requisition on title and the obligation of the purchaser to satisfy himself/herself of the identity of that which it is proposed to convey with the title that is to be conveyed.

MR ELLICOTT: Yes. Your Honour, that is how - - -

HAYNE J: Which reflects back on what this representation means.

MR ELLICOTT: I say this with great respect, we are talking about ordinary people here. We are talking about people who do not know a great deal about matters like that, I suggest.

GLEESON CJ: You are referring to the agents?

MR ELLICOTT: No, we are talking about purchasers.

KIRBY J: You are talking about potential purchasers.

MR ELLICOTT: They are the ones who have to be protected and they have to be protected from agents who presumably ought to know about mean high-water marks around Pittwater, if that is where they do their business.

HAYNE J: Let us understand that proposition, Mr Ellicott, because what you are putting is that every agent who puts on a brochure the dimensions of the land, has to have a survey which will reveal that those are the true dimensions of that which is offered for sale. That is a very large proposition.

MR ELLICOTT: That is one face of the proposition. The other face is that any person who is stupid enough to go to an auction on a mean high-water mark had better get a surveyor to make a survey before they bid, otherwise they will be in jeopardy. That is the other face of that proposition.

I would submit that it is resolved by this. If, as this does, a plan shows what is recognisable as the mean high-water mark, then that is the mean high-water mark at the time that the person is putting this property forward for sale. They are saying that is the mean high-water mark. They are not saying that is the mean high-water mark that may have been in 1919. We are selling a property where the mean high-water mark is at this point. I know that you can argue that if the mean high-water mark according to the title happens to run through the swimming pool, it may be it will be at that point, but that is not the point . There was no evidence to establish that the mean high-water mark is at that point.

HAYNE J: I am sorry, what was the proposition, Mr Ellicott? Do you say there is no evidence below that would establish where the mean high-water mark was, in fact? Is that the proposition you advance?

MR ELLICOTT: Yes, because there has never been, according to New South Wales law - perhaps I should give your Honours the relevant provision, but the - - -

HAYNE J: I am sorry, I was just wanting to understand the proposition you last put. Did I accurately capture it? There was no evidence below of where actually mean high-water mark was.

MR ELLICOTT: Your Honour is being very exact and I have to be exact in my answer. The evidence below did not establish that the mean high-water mark was at the point shown on this plan, or at any point other than what one might assume from the title, that is to say running through the middle of the swimming pool. When somebody puts forward a plan like this - and I am on another point at the moment, I do not need this point, but if I have to deal with the proposition that the mean high-water mark is a moveable feast then I am submitting in answer to that. If a document shows it at a particular place then it is a representation that it is at that place. If that representation is not borne out then it is misleading.

So you go to the next step. All right, here is the certificate of title with a 1919 deposited plan and when you take the measurements you get it going through the middle of the swimming pool so that is a pretty strong indication that that may not be the mean high-water mark. That surely tips the scales the other way for proof that the mean high-water mark is at the other point, but there just was not sufficient evidence below to establish that, nor could there have been, unless there had been an inquiry into the matter pursuant to the survey regulations.

GLEESON CJ: Am I right in thinking that the reasoning of the courts below amounted to this, that the brochure did contain a representation of the general kind for which you are contending, that that was a misrepresentation, but that the publication of the brochure with the disclaimer in the circumstances did not amount to misleading conduct? Is that the way the argument went?

MR ELLICOTT: Yes, that was, in a sense, Justice Austin’s decision that to put this in the contract was misleading. The Court of Appeal agreed with that. They did not take any point based on mean high-water mark, of course, but then the Court of Appeal said Justice Austin could not in one breath say that the vendor had misrepresented by putting it in the contract and in another breath say that the agent had not misrepresented the matter. That is what Justice Handley said in his judgment.

So below it was accepted that there was a misrepresentation by the vendor and, indeed, by the agent. The peculiarity of the judgment is that the Court of Appeal took hold of Yorke v Lucas and said it was a mere passing on of information and applied common law principles in doing so, without giving strict adherence to what the words in Yorke v Lucas were really saying.

Just slipping back again into the other proposition, that is to say that if it is a representation about mean high-water mark, it is a representation that that is where it is at the moment according to law.

HAYNE J: Can I understand that against the background of paragraph 80 of Justice Austin’s judgment, where his Honour summarises the effect of the, in some respects, conflicting evidence given by surveyors as being, in the end:

little, if any, disagreement between the surveyors. What emerges from their combined evidence is that the ‘documentary’ mean high water mark by title passes through the swimming pool but there are good grounds for arguing that the mean high water mark should now be located in a different position beyond the pool.

MR ELLICOTT: That is simply saying what it says. It is not taking hold of the words “MHWM”, assuming the purchaser knows what they mean. It is not taking hold of those words and asking the question, what do they mean in the brochure? The combined effect of the plan and the photographs would be, we would submit, that it is saying that the mean high-water mark is there and somebody has built a fence to mark it off. It is the back boundary, and beyond that there is this reclaimed area that is shown. It cannot be further towards that, if you are a technician in the law of accretion, because, if it is a reclaimed area, you cannot have it.

GLEESON CJ: Are we concerned with section 52 of the Trade Practices Act or the Fair Trading Act (NSW)?

MR ELLICOTT: Yes, 52.

GLEESON CJ: So what we are concerned to do is to apply to the facts of the case the expression, “engage in conduct that is misleading . . . or is likely to mislead”?

MR ELLICOTT: Yes.

GLEESON CJ: We are not concerned with a case of deception; we are concerned with misleading? There was an allegation of fraud or something - - -

MR ELLICOTT: I have always thought the words slip into one another.

GLEESON CJ: There was an allegation of dishonesty floating around somewhere below, but that has gone, as far as we are concerned?

MR ELLICOTT: That has gone. In that sense, yes, your Honour.

GLEESON CJ: So what we have to do is apply to the conduct of the real estate agent the statutory description of conduct that is misleading or is likely to mislead.

MR ELLICOTT: Yes.

KIRBY J: Coming back to Justice Hayne’s question, Justice Austin leaves this point hanging in the air. Your gripe was that you did not get what you bargained for and expected because of this misrepresentation. But if it were the fact that you did get what you bargained for, even though it might take certain steps to do it, then the basis on which you are going on and on and making all this fuss about being unable to build your pool would completely fall away and you would have got what the brochure suggested. All of this is a debate about something which has not really been finally determined, but which is a killer point against your case.

MR ELLICOTT: Your Honour, no, because what is really involved in those propositions that your Honour has just put to me is that a purchaser is being told, in effect, “Now, look here, that mean high-water mark may not be there according to the title if you have a look at it, but if you care to go through a process, which your solicitor will tell your about, of getting a survey, it may well establish that the mean high-water mark is, in fact, where we show it”. Now, that really is complicating the processes whereby people buy and sell land, particularly at auction, and there has to be, we would submit, a line to be drawn in a case like this.

Now, either the pool is within the land or it is not, either it is a misrepresentation binding on the agent or it is not, or it is misleading conduct binding on the agent or it is not. Well, it is misleading if it shows that the pool is within the curtilage of the land, and that is the sense in which the courts below have decided it.

KIRBY J: But what if the pool is in there, in fact? It is not a misrepresentation, because in fact and truth it may take a few steps to establish it but in fact and truth the pool is within the property and therefore all your fuss is simply fuss about something which is not a misrepresentation. In fact it is a correct representation, though some of the material that illustrate it is not perhaps exactly as represented but the essential representation that concerned you, viz that you could do what you wanted with the pool, is not different from that which was represented.

MR ELLICOTT: This is misleading conduct, we are considering or alleging, which is going on from 6 February until the auction on 17 February. If one takes the propositions which are inherent in what your Honour is putting to me, and I suspect Justice Hayne is putting to me, then it is placing a very high liability on a purchaser who is, in effect, being told, “It may not be there, but it is just one of those things. We show it there and when you look at the plan, the certificate of title or the deposited plan, and you get a surveyor to do it, it might be shown as going through the pool, but not to worry. If you get a survey, it will probably turn out to be the fact that it is where it is.”

KIRBY J: Your point is that representation focuses on that which is represented and that which is represented here is wrong.

MR ELLICOTT: Yes, and the agent can only get out of it if the principle laid down in Yorke v Lucas applies to the facts of the case.

GLEESON CJ: These are really two sides of the one coin, these considerations, are they not, Mr Ellicott, because from one point of view the agent says, “Having regard to the terms of this disclaimer, you should not treat me as standing behind the truth of a representation which involves issues of considerable legal and factual complexity”. The other side of the coin is that the agent says, “Well, if you are going to treat me as standing behind that representation, you prove the representation is false”, and the notice of contention says to you, you never managed to do that.

MR ELLICOTT: Your Honour, that is the question which has to be answered if you are going to go beyond the facts and get into the area of what I will call “the law of title in relation to land”.

GLEESON CJ: Is the agent not entitled to say, “If you are going to pin me to a representation about legal title based on considerations of mean high-water mark and accretion, or in Redfern if you like, complex matters of fact in relation to encroachment of closely settled land, if you are going to bind me to that representation then you have to prove the representation is untrue”?

MR ELLICOTT: That might be all right, your Honour, if all they did was put down a copy of the deposited plan, but what they did was quite different and very material. It is in this sense that what this representation is is not only as to mean high-water mark, but it is saying something about a swimming pool and a brick house and it saying it is within the curtilage of the land.

GLEESON CJ: I think you agreed earlier, essentially it is saying something about title.

MR ELLICOTT: It is saying something about title, but it is also saying that it is taking the extra step of saying that within the title that we are selling you, or the vendor is selling you, stands a pool and a house. The proposition has to be measured not only in accordance with a swimming pool that might seem to be a relatively cheap article, but it also has to stand up in relation to a house or part of a house.

With very great respect, being realistic about what is happening between an agent trying to sell and promote the sale for his benefit – a million dollars is going to give him probably something like maybe $30,000 in commission, so he is very anxious to sell and he is not on the defensive, he is on the front foot and he wants to sell it and the purchaser is entitled to assume that what the agent is saying to him is that, “What I am representing to you about substantial aspects of this property is accurate”, not to the smallest inch but in terms of a pool being within the land, yes, certainly.

If the agent wants to say the pool may not be within the land or thinks it may not be because of the doctrine of accretion or something like that, or it wants to say, “It would be a bit tough on me if you held me to that”, as your Honour put it, then he needs to say it, but, of course - - -

GLEESON CJ: What he said was, “I did not do this survey. I am not a surveyor. I have no reason to disbelieve the vendor or the surveyor”, but, using what I understand to be a very common expression in conveyancing practice, the purchaser should “rely on his own inquiries”.

MR ELLICOTT: But why does he show the pool?

HAYNE J: Because it was on the survey plan, simple as that. He produces a survey plan that his vendor has given him. He produces it.

MR ELLICOTT: Yes, dated 4 August 1980 and then he adopts it by the inset photograph on the front. There is no doubt, in our submission, that that photograph indicates something to a purchaser, that is to say, that the mean high-water mark as shown on the survey is around about where that fence is. That is telling him the same thing, that is, that the pool is within the land that is being offered for sale. It would be extraordinary, I would submit, that an agent can, in effect, provide a survey and photographs and promotional material, where he has a special interest to sell the property, and escape by some technical argument, which, if there were solicitors and lawyers present who were asked to engage in the conversation and say what are the legal rights here, would be an extraordinary situation. It is just not real life.

KIRBY J: Well, could I ask you on that point, it seems to me significant for working out how we resolve this problem that we are in the business of applying the Trade Practices Act. We have to be just a little careful that we do not get diverted from the obligation which we first have to a valid statute of the Federal Parliament of Australia to apply that Act for its purposes and in its terms, not necessarily picking up – as was said in the special leave application – all the baggage of past law, but focusing on the statute. Now, you have read us one case about the Act, Yorke v Lucas, but is there anything else? There is a preamble in the Act, its purposes are stated, the Attorney-General at the time introducing the Act had things to say about it. No doubt, the Solicitor-General at the time had things to say about it. It is a big consumer protection statute.

MR ELLICOTT: At the time, the person you referred to was the Shadow Minister for business and consumer affairs who was putting the Bills through the House - - -

KIRBY J: I am sure he had a lot to say about it, too.

MR ELLICOTT: - - - on behalf of the Opposition.

KIRBY J: But it seems to me there is always a risk in courts that you do not start with the statute. Our duty here is to see how the statute applies to the facts of this case.

McHUGH J: That is part of the problem with using representation. It has always seemed to me that courts are inviting error in determining or applying section 52 when they talk about representation and they talk about conduits and so on. After all, the statutory term is “engaging in conduct likely to mislead”. If you apply the terms of the statute, why is it not likely to mislead somebody if you hand that person a brochure, even though it has a minor disclaimer? That is to say, somebody is likely to be misled by the sketch and say, “Well, I read the disclaimer, but I am prepared to rely on the sketch”. I do not know why you have to have a representation. I know it is handy, but it is baggage from the common law.

GLEESON CJ: But you have to have somebody doing the misleading.

HAYNE J: And somebody misled.

GLEESON CJ: On your argument, that is both Lachlan Elder Realty Pty Ltd and Williams Design Associates, is that right?

MR ELLICOTT: It may be that they designed the brochure, I do not know, but the fact is that it is the agent’s brochure. It is not a piece of paper that has been given to the agent by the solicitor so that he can hand it out. That is not the point. The point is that the agent has adopted it and put it in its brochure.

GLEESON CJ: That word “adopted” is the key word, is it not? The agent has said he has not adopted it, has not he?

MR ELLICOTT: Your Honour, that all depends on whether one is going to get hold of those words at the bottom and magnify them and turn them into something which they are not, with respect, for this reason, that the small print is – it has been said time and time again, certainly in the Federal Court, that disclaimers of this nature are not likely to overturn the effect of otherwise misleading and deceptive conduct.

GLEESON CJ: Was the young lady at the front desk of the real estate agent’s office who handed copies of these brochures to everybody who came into the shop on the morning engaging in misleading conduct?

MR ELLICOTT: Not in herself because she was employed by - - -

GLEESON CJ: Why not? Why would that make a difference? She is handing somebody, on your argument, a document by which they will be misled.

MR ELLICOTT: Yes, a document provided to her to hand out.

GLEESON CJ: That is right.

MR ELLICOTT: Nobody would think that a document that quite clearly was Elders Realty’s document being handed out by Ms Smith on the front desk was something which she would stand behind so far as - - -

GLEESON CJ: So that is the test. You cannot answer the question simply by saying, “Does the document contain information that is likely to mislead somebody?” You also have to look at the role of the person who makes the document available.

MR ELLICOTT: I think that is right, but one thing is not in debate and that is this is the document of Elders Realty. Here it is, Lachlan Elder Realty, they have put it out. There is no debate about that, and they have handed it out and given it to my client and said certain things about it that are part of our case, and your Honours will have read that. But they had decided to put on the brochure – they must have had the choice as to whether to put it there or not. There is no evidence that they were instructed to put it there. They decided to put it there. Agents are inevitably going to try and – they will puff, we know that, but they have put something there which is not puffery. It is quite clearly a representation which they thought was significant for the purpose of selling this land which they represented also had a swimming pool between a fence and the property.

GLEESON CJ: Is it possible for agents to put a form of disclaimer on a document like this that would relieve them from the possibility of contravention of section 52? Is there anything they could say that would produce that result?

MR ELLICOTT: Yes. They could say something that would be stupid for them to say, and that is really the point of this case. No agent is going to say, “You must make your own inquiries because I cannot be sure” - - -

KIRBY J: “Forget this brochure. Pay no heed to it.”

MR ELLICOTT: - - - “that the pool is between the house and that fence” and - - -

GLEESON CJ: Why would it be stupid to say, “I am not a surveyor and I did not do this survey. I have no reason to believe the survey is accurate, but if you want to rely on it you should make your own inquiries”. It does not sound like a silly thing to say.

MR ELLICOTT: It would be a silly thing to say – you could put it that way, your Honour, or another way – because it would turn every purchaser off. They want to sell the land and here they are on 6 February with an auction on 17 February. We know that people can rush up to an auction the day before. I have been at an auction where somebody has come over from overseas and landed next door half an hour before and rushed in and put a bid in without having an opportunity to look at the property, but these brochures are intended for purchasers in all sorts of circumstances.

KIRBY J: You would not want to have a principle of the application of the Trades Practices Act that effectively makes real estate agents guarantors for survey material. That would not be a correct or fair principle to apply to the Trade Practices Act.

MR ELLICOTT: The way of dealing with it is that if the survey contains inaccuracies which are misleading or deceptive or likely to mislead, then there must be some conduct on the part of the agent which warns the reasonable purchaser that that particular material or matter may not be accurate and they should make their own inquiries.

HAYNE J: Applying that principle more generally, does that mean that when a real estate agent produces a brochure offering Blackacre for sale, that the agent thereby conveys to the reader that the vendor has good title to Blackacre? It seems to me to follow inevitably from the proposition you have just advanced and it seems to me to represent a rather large alteration in conveyancing practice.

MR ELLICOTT: It may be an extraordinary reply, but I would submit that within the confines of the Trade Practices Act it would be misleading and deceptive or likely to deceive to put up for sale a property if you were not saying that the person on whose behalf you were selling it could give title to it.

GLEESON CJ: What if the problem about title was that there was a native title claim in relation to the land of which the agent was not aware?

MR ELLICOTT: If the agent was not aware, the agent has not made inquiries about a very important matter affecting this land. If what he says is misleading as a result of not giving reference to it, then it is misleading and deceptive. In other words, the - - -

McHUGH J: That sort of case has been before the courts, has it not? In the Benlist Case the brochure said that it had strata potential and the brochure had a disclaimer in it, but failed to say that because of boundary problems, to strata the property might be difficult. If I remember rightly, they were held liable.

MR ELLICOTT: Yes, Benlist v Olivetti, and I was going to give your Honours a reference.

McHUGH J: They were held liable, were they not?

MR ELLICOTT: Yes.

KIRBY J: Which case was that?

MR ELLICOTT: I think it is Benlist v Olivetti.

KIRBY J: Please keep in mind that in the Court of Appeal we were kept out of these cases. Do not assume I know all the jurisprudence of the Federal Court on these matters. I do not. We were excluded from them and therefore I did not deal with them, so just do not assume I know all of this material. Really, as far as I am concerned, I am going to approach this matter by giving effect to a valid statute of the Federal Parliament. That is our first duty, not all this talk about conveyancing practice. Our duty is to look at the statute, to give it effect, having regard to the background.

MR ELLICOTT: No counsel, your Honour, could sensibly take exception to that.

KIRBY J: You seem to be reluctant to delve into the statute. Most barristers who come before us hate statutes; they love common law.

MR ELLICOTT: Your Honour, this is the best statute probably that has been passed for lawyers in the last 40 years. I mean, we love it.

KIRBY J: Well, it is for consumers; it is not for lawyers. It is for ordinary folks.

MR ELLICOTT: To have assisted in putting it through Parliament gives it a certain affection. But it is there to protect the consumer and therefore, when the section – I mean, the heading is “Consumer Protection”. When one is construing section 52 it has a lean on it.

GLEESON CJ: Yes, it certainly does. One of the first decisions this Court ever made about section 52 was that it was not limited to consumer protection and in fact it was being mostly used by competitors rather than consumers.

MR ELLICOTT: Yes.

KIRBY J: But here we have a consumer protection case, or so it is said. It may have a wider ambit but this is what we are dealing with and you say if you require them to look at the fine print and so on, that defeats the consumer protection objective of section 52.

MR ELLICOTT: If it is only fine print, then that is to their disadvantage, that is, the agent’s disadvantage.

KIRBY J: There must be lots of principles that have been laid down. Justice McHugh mentions a case. I do not know that case and if it is - - -

MR ELLICOTT: I am going to take your Honour to it.

KIRBY J: Good, I cannot wait.

GLEESON CJ: I am just trying to formulate exactly what the issue is on this part of your argument, Mr Ellicott. You agree that the young woman in the office who handed out these documents is not engaging in misleading conduct. You say that her employer, notwithstanding the disclaimer, is engaging in misleading conduct. What is the issue by reference to which you would discriminate between those two? Is it whether or not the respondent is doing something in relation to the publication of the information in the brochure which makes the statement about title its statement?

MR ELLICOTT: Your Honour, I would submit it is more about this, that if it is the young lady at the front desk, if she is an employee and she is handing out on her employer’s behalf – but if it is Mr Lachlan Elder or Mr Spicer who are involved in this and they are estate agents and they are promoting the sale, the question is, are they engaged in misleading and deceptive conduct? If they are promoting the sale, then that is an aspect of it that is very relevant to whether or not the conduct is misleading because they are putting it forward for sale and they are saying things about it.

Now, the question is, what is it they are saying which is misleading or deceptive? The next step is to say they are saying, apparently, that this pool is within the curtilage of the land, when, in fact, when the survey was done with those measurements, it is not. Therefore, that is misleading and that is what the courts below, in effect, have said. The next step is to say, “Did the agent say anything that might put the purchaser on inquiry as to whether or not what he was saying or what his brochure was saying was correct or not?”, and you add that in to say whether, at the end of the day, the conduct is misleading or deceptive.

The Act has to encompass people who pass on information and if people pass on information in documents that are their own documents, and not just a contract, say, that the agent hands out at the auction, but their own documents, then that is their conduct. They have said something that is potentially misleading. Have they said anything or written anything that would enable a person judging it to conclude it was not misleading or deceptive because the would-be purchaser knew all the time that the agent really was not saying that that was accurate?

GLEESON CJ: I do not know if this happened during your time, as it were, but there was an amendment to this Trade Practices Act to cover information providers at some stage. Do you know what I am talking about? To be blunt about it, it covered the media. It was put in, as I recollect it, to protect the media from problems with section 52 in relation to information such as the weather or stock exchange reports or whatever. What is that section?

McHUGH J: It was 52A or 51A, was it not?

HEYDON J: It was 65A.

MR ELLICOTT: It must have been, presumably, on the basis that if they did not get the protection – because it could be misleading and the yacht in a storm might flounder – then they might be liable.

GLEESON CJ: That was why I said it was after that Western Australian case.

McHUGH J: Yes, Justice Gleeson was in it, I think, if I remember rightly. Global Sportsman or something like that, as I remember. But, Mr Ellicott, in talking about “engaged in conduct”, you seem to concentrate on that expression. One reason why the receptionist is not liable directly under 52 is because it is only corporations that are, but “engaged in conduct” is defined to mean doing an act. Why do you not look at the surrounding circumstances to see whether that act is likely to mislead?

Leaving aside the term “corporation”, supposing somebody goes to the receptionist and says, “Are you selling this property?”, and she says, “Yes, here’s a brochure”, and it contains a misleading statement, why has she not done an act that is likely to mislead? Why do you put a gloss on the statute? I know the cases do, because they do not like the scope of this. Intuitively or instinctively, judges recoil from holding people liable under this statute, so they introduce terms like “innocent agent”, “conduits”, “representation”, “misrepresentation”, but that is not the language in the statute.

MR ELLICOTT: Your Honour, I do not disagree with that, but I do not have to include the office girl. The distinction, if there is a distinction, is along the lines that I have suggested, that it is not her document. This is a case about somebody’s document.

McHUGH J: But it does not have to be her document. It is doing an act.

MR ELLICOTT: I understand that.

McHUGH J: If you hand out a misleading brochure - - -

MR ELLICOTT: Your Honour, I am not disagreeing, but so far - - -

McHUGH J: I mean, if the paperboy throws something over the fence and it has a misleading – it may be it is arguable that he is within the statute. Now, judges recoil from that.

MR ELLICOTT: It is a very wide statute and, no doubt, the recoiling is asking the question, should we place a limitation on it? Certainly, there should be no limitation when somebody, an agent, puts out their own document which contains something that is misleading or deceptive, and we would say, in this case, grossly misleading or deceptive.

GLEESON CJ: What is the finding of fact in the courts below that justifies the conclusion that your client was misled? In what respect was he misled?

MR ELLICOTT: Your Honour, at paragraph 67 on page 780, volume 4, there is another passage at - - -

HAYNE J: Just before you leave that passage, paragraph 67, when his Honour refers to “the mean high-water mark”, he is identifying a mark determined by measurement. Is that right?

MR ELLICOTT: Well, that is based, in fact, on our surveyor’s evidence.

HAYNE J: Which was a mark determined by measurement.

MR ELLICOTT: When you took the measurements, it went through the middle of the pool.

HAYNE J: Yes, I understand that.

MR ELLICOTT: That sounds like a trap question, your Honour.

HAYNE J: No, it is simply inquiring what paragraph 67 means.

MR ELLICOTT: It does not resolve the issue that because it is arrived at by measurement as to whether or not it is deceptive or misleading conduct. Another passage which touches on this is at 196, page 816. At line 37:

Mr Butcher has given evidence, which I accept, that but for his dealings with Mr Harkins and Lachlan Elder Realty, he would still own the Calvert Parade property.

That is evidence of some reliance, but the most significant is paragraph 67.

HEYDON J: That is repeated in paragraph 145, page 801.

MR ELLICOTT: Thank you, your Honour. If your Honour pleases, yes, it is even more strongly stated there.

GLEESON CJ: Was there a finding in the courts below that the swimming pool was not within the curtilage of the land that your client would have acquired if he had completed the sale?

MR ELLICOTT: The finding was on the basis of the surveys that the mean high-water mark went through, in effect, the middle of the swimming pool. At page 796, paragraph 125:

The correct position of the mean high water mark in a survey identification report for lot 14 is the position shown in Mr Bee’s report, in which the mean high water mark is depicted as traversing the pool. Consequently, by making available to the plaintiffs’ solicitor a draft contract annexing Mr Hannagan’s report, Mr Harkins misrepresented the location of the mean high water mark in relation to the pool.

GLEESON CJ: But you opened to us on the basis that the representation on which you relied was a representation that the swimming pool was within the curtilage of the land that the appellant would acquire if he completed the sale.

MR ELLICOTT: Yes, that is how we put the case.

GLEESON CJ: Did they address that?

MR ELLICOTT: I thought they had assumed that that was the result.

HAYNE J: It is by inference addressed in paragraph 82. I think that paragraph 82 is about as close as you get to it, in particular, the last sentence, for there seems to be being drawn a distinction between what is called “high water mark by title” and high-water mark. It seems, at least my reading which I ask you to correct if it be wrong – my reading of this is that Justice Austin treats the title as extending to the line identified by measurement from the road frontage.

MR ELLICOTT: Yes, he does.

HAYNE J: That was the premise of the case you put below?

MR ELLICOTT: The consequence of that is that it was misleading to say that the pool lay within the curtilage of the land because what was being purchased was lot 14 in deposited plan 9500. I just point out that in our pleading, so that the Court understands that this is not some afterthought, at page 3 in volume 1:

The First Respondent when distributing the four colour brochure represented that:

(a) the four colour brochure was a true and accurate brochure;

(b) the permissive occupancy did not affect any improvements of the land; and

(c) the swimming pool constructed on the Rednal Street property was wholly constructed within the rear boundary towards Pittwater of the Rednal Street property.

That was our case from the beginning and - - -

HAYNE J: And it is that premise which the notice of contention would seek to challenge.

MR ELLICOTT: It may, but we say in an irrelevant way because it does not matter, actually, where the mean high-water mark might be by accretion if you chose to have a surveyor do it and get the consent of the Minister. But until that course had been gone through, the misleading character of what was said is established by taking Mr Bee’s survey, and on the measurements showing that the mean high-water mark, according to what was shown on the plan, actually went through the pool. The point is that - - -

KIRBY J: It is a bit like a causation question, though. You may have misrepresentation in one sense, but does it lead anywhere if the truth of the matter is that there was no misrepresentation, even if the truth of the matter takes a little time to discover?

MR ELLICOTT: The misleading character of it is that what this is saying – for instance, if the rectangle of the pool was not there and it just had mean high-water mark and that line across, that may be one thing, but what is being represented here and what is misleading and deceptive or likely to mislead or be deceptive is to tell somebody that the pool is between the high-water mark, wherever it may be, and the land and to do it by reference to measurements. Now, that stands outside the law of accretion and the law of title.

KIRBY J: That is what makes it important, as I have said before, to get very clear what the statute is aimed at to see what Parliament is seeking to prohibit and address.

MR ELLICOTT: If it is in a section called “Consumer Protection”, the words bear a meaning - - -

KIRBY J: But if you have not suffered an ultimate loss, then query whether there is any need to protect you.

MR ELLICOTT: Well, we have suffered an ultimate loss.

KIRBY J: You have assumed and acted on an assumption of an ultimate loss in the conduct that you pursued. That is now challenged.

MR ELLICOTT: If we had not bought this property, influenced clearly by that misconduct, then we would not have suffered the damage that we claimed. The chain of causation is there – that is a separate point, but just addressing what your Honour has put to me, there is a link and there has to be a link between the damages claimed and the misleading or deceptive conduct. It did occur here. It may be that in some circumstances all that happens is that they find out, the deposit is returned and that is the end of it, they did not buy the property. But that is not this case because there was another property involved and certain difficulties that arose in relation to it, which the courts below have found was occasioned by this misleading and deceptive conduct, if it occurred.

Your Honours, could I take you to, first of all, John G. Glass Real Estate v Karawi Constructions (1993) ATPR 41,356. It is a Full Federal Court decision.

KIRBY J: What is the principle that the case stands for?

MR ELLICOTT: This is a case where the agents, who were selling and leasing agents, obtained some information about the net lettable area and made statements about it. Obviously, all cases turn on their own facts, but this one is quite, we would say, in principle, similar. For instance, just to get a summary of it, in paragraph 2 of what was held:

Information such as the net lettable area of a building stands on a different footing from the puffery which often accompanies the sale of real property.

That is so in relation to the swimming pool.

The figure is one of hard physical fact. It is an essential factor in determining the likely profitability of a commercial building and hence its value. A purchaser such as Karawi would ordinarily expect that the agent had no reason to doubt the completeness or accuracy of the information provided.

The agent, as part of its ordinary business, was providing information in a persuasive form with a view to achieving a sale of its principal’s property and of earning commission. It was this conduct which was misleading and deceptive.

At page 41,359 their Honours say, in the first column, towards the bottom:

In our opinion an estate agent which holds itself out as, amongst other things, “consultants to institutional investors and to developers of major properties” would not be regarded by potential purchasers of properties as merely passing on information about the property “for what it is worth and without any belief in its truth or falsity”.

KIRBY J: Why are those words in quotes? You used that expression before, “for what it is worth”.

MR ELLICOTT: Yes, that is Yorke v Lucas which they quote. At the foot of the first column of 41,359:

Information of the kind in question, the net lettable area of a building, stands on a different footing from the puffery which often accompanies the sale of real property. The figure is one of hard physical fact. As the appellant’s own calculations indicate, it is an essential factor in determining the likely profitability of a commercial building . . . We think a purchaser like Karawi would ordinarily expect, to quote the terms of the appellant’s own disclaimer, that the agent had no reason to doubt the completeness or accuracy of the information provided.

That is a bit like that which is made here, obtain here and is gathered from sources we deem to be reliable.

In the present case the appellant adopted the information in question and incorporated it as a central and prominent feature of their selling effort on behalf of the vendor. There was certainly no express disclaimer of the appellant’s belief in the truth of the information in the brochure – indeed there was an express assertion of such belief. As part of its ordinary business the agent was providing information in a persuasive form with a view to achieving a sale of its principal’s property and of course earning commission. It was this conduct which the learned trial judge, correctly in our opinion, held to be misleading and deceptive. Once the falsity of the figure was demonstrated, it seems to us that no other conclusion could follow.

The disclaimer in question, I am reminded, appears on the first column of page 41,358:

“The information contained herein has been prepared with care . . . it has been supplied to us by apparently reliable sources. In either case we have no reason to doubt its completeness or accuracy.

McHUGH J: It is the last sentence in the next paragraph.

MR ELLICOTT:

However, neither John G Glass . . . its employees or its clients guarantee the information nor does it, or is it intended, to form part of any contract. Accordingly, all interested parties should make their own enquiries to verify the information as well as any additional or supporting information supplied and it is the responsibility of interested parties to satisfy themselves in all respects.”

That goes obviously much further than the suggested disclaimer here and it is very positive. It is almost in the terms that your Honour the Chief Justice put to me but it has not been the practice in the Federal Court, if I can use the word “practice”, in relation to decisions, to give fine-lettered disclaimers much significance.

KIRBY J: That is a more ample disclaimer.

MR ELLICOTT: It is, but it is ignored.

KIRBY J: Have there been cases where the disclaimer has succeeded in respect of a claim under section 52 of the Trade Practices Act?

MR ELLICOTT: Yes, I think there may have been, your Honour.

KIRBY J: If you could turn them up, I would like to - - -

GLEESON CJ: Just before you leave this case, on page 41,359 there is a paragraph commencing with the words “In our opinion”. Do you see that?

MR ELLICOTT: Yes, your Honour.

GLEESON CJ: What is the relevance of that?

MR ELLICOTT: So far as their Honours are concerned, they obviously have in mind Yorke v Lucas in that passage. If your Honour is asking me what the relevance of it is, well, that is what they are about, that is what they claim to be expert in.

GLEESON CJ: But why did it matter that the agents in John G Glass held themselves out as consultants to institutional investors and developers of major properties? What did that have to do with it?

MR ELLICOTT: The court apparently thought that by their being that, and holding themselves out to be that, the customers dealing with them would regard them as persons who would put forward accurate information. That is what lies behind it.

KIRBY J: Your bit of equivalent puffery was, “Nobody does it better”.

MR ELLICOTT: Nobody does it better, but that has to be read in the context of what they are about. They are trying to sell a waterfront property and you would expert them to know what the property was that they were selling.

KIRBY J: Yes, but they are not conveyancers or surveyors.

MR ELLICOTT: No, but if they mislead people into believing that the property is something other than what they are selling, and if a lawsuit, as your Honour the Chief Justice put to me, is needed in order to establish its truth, then that is misleading, unless they say that that might occur. Otherwise, they are saying that the mean high-water mark of this property is there and the swimming pool is within it.

HAYNE J: Well, they are saying more than that, if the lawsuit point is good. They are saying not only it is there, they are saying it is unarguably there. Now, do you go so far as to say that?

MR ELLICOTT: Well, they are. They are, really. It is misleading and deceptive.

HAYNE J: I just want to understand your submission. Your submission is it goes as far as that?

MR ELLICOTT: It is misleading and deceptive to say that, to present a brochure like this showing a swimming pool obviously within the land. It has to be misleading and deceptive, if it is not within the land, and, if it is within the land, not to tell somebody, “Look, we are not too sure of that, and in order to establish it you will have to have a long enquiry and you might even have to have a lawsuit about it”. Your Honour, there is a case - - -

KIRBY J: I was just following up the Chief Justice’s question earlier as to what you could do with a disclaimer to, as it were, write yourself out of your obligations under the Act.

MR ELLICOTT: There is one case of Waltip Pty Ltd v Capalaba Park (1989) ATPR 40,975. It is a case where a deed of acknowledgement from the tenant that no representations had been made on which the tenant relied - and that went a fair way to negative the effect of any misleading or deceptive conduct. Benlist Pty Ltd v Olivetti Australia Pty Ltd (1990) ATPR 58,513 and at page 51,590 Justice Burchett said this, towards the bottom:

The respondents relied on a disclaimer clause contained in the investment report, and also repeated as a footnote on the back cover of the brochure. This provided:

“Chesterton International (NSW) Pty Limited for themselves and the vendors of this property whose Agent they are, give notice: (i) The particulars are set out as a general outline only for guidance of intending purchasers and do not constitute an offer or contract; (ii) All descriptions, dimensions, reference to conditions and necessary permissions for use and occupation and other details are given in good faith and are believed to be correct, but any intending purchasers should not rely on them as statements or representations of fact and must satisfy themselves by inspection or otherwise as to the correctness of each of them; (iii) No person in the employ of [Chesterton] has any authority to make or give a presentation or warrant whatsoever in relation to this property.”

It has been held on many occasions that the perpetrator of misleading conduct cannot, by resorting to such a clause, evade the operation of the Trade Practices Act. Of course, if the clause actually has the effect or erasing whatever is misleading in the conduct, the clause will be effective, not by any independent force of its own, but by actually modifying the conduct. However, I should think it would only be in rare cases that a formal disclaimer would have that effect. As was pointed out during the arguments, it was at one time fashionable for some counsel to add to their opinions a note disclaiming responsibility in the event that the law should turn out not to be as they opined it was. I do not think those counsel would have suggested that the note had the effect that their clients placed no reliance on the opinions, though some clients may have been somewhat bemused.

That, I would submit, is a correct statement of principle. That line of authority, both in Glass’s case - - -

KIRBY J: There is a general section of the Act that says you cannot contract out of the Trade Practices Act, is there not? Is there not some general provision or am I thinking of some other. It came up in that case - - -

HEYDON J: Section 68 says that:

Any term of a contract . . . that purports to exclude . . . :

(a) the application of all or any provisions of this Division –

which is Division 2 of Part V, which deals with conditions and warranties, that is the provision. In other words, it does not affect this.

MR ELLICOTT: Your Honours, there is the case of Argy v Blunts [1990] FCA 51; 26 FCR 112. The relevant passage is at 131 and 132, about halfway down the page – a little over:

It is clear law that in a case such as the present –

this is Justice Hill –

conduct cannot be misleading or deceptive or likely to mislead or deceive unless it conveys a misrepresentation . . . No doubt it is correct to say - - -

GLEESON CJ: Is that reference to Taco Bell a reference to the decision at first instance or the appeal?

MR ELLICOTT: That was short of the appeal, was it, your Honour?

No doubt it is correct to say that the material contained in the certificate under s 149 as annexed to the contract is to be seen as a representation by the vendor to the purchaser that the zoning of the property in question is as set out in that certificate. But where proceedings are brought, as here, against the solicitor who prepared the contract or the agent who disseminated it, it is less clear that the solicitor or agent as the case may be is to be taken as making the same representation by virtue of the mere annexation of the s 149 certificate –

Now, here what happened was that the section 149 certificate had two pages, say, and only one page – it was obtained from the Council, but only one page went on to the solicitor and the solicitor, thinking it was the whole of the certificate, put it in the contract. It was the agent who sent it on to the solicitor, but no matter, the agent then obtained copies of the contract and handed it out. It is quite clear that the certificate in its incomplete form would have misled, because the whole certificate indicated that Mr Argy could not undertake certain improvements along the foreshore which he wanted to undertake, and he was buying the land based on that.

It was argued by the applicants however that the effect of the contract was that –

your Honours, I have a black section along my copy here and it is not helping me, but could I ask your Honours to read that and then go over the page:

Let it be supposed that a contract of sale discloses a zoning as set out in a complete s 149 certificate provided by a local council but the zoning is, through no fault at all of the person who prepares the contract, wrongly described in the certificate. It would be an affront to common sense for a purchaser to say that the person preparing the contract had represented by the inclusion of the s 149 certificate in the contract that the zoning was as stated in that certificate and had thereby engaged in conduct that was misleading or deceptive or capable of being misleading or deceptive giving rise to a right in damages under the Fair Trading Act or the Trade Practices Act as the case may be –

Now, just stopping there, that is a narrower view than your Honour Justice McHugh put to me. It could be suggested that if the section 149 certificate was in error, maybe it was misleading and deceptive, and if you were uttering it, then you were engaging in misleading or deceptive conduct.

GLEESON CJ: That is why I was wondering about the provenance of that proposition for which Taco Bell is cited as authority. Justice Deane was a party to the decision in the Full Court in that case.

MR ELLICOTT: Yes. What was happening here, of course, was something different to that. The 149 certificate was misleading because it was incomplete in the sense that it was not the full text of the certificate.

Such an example merely reinforces the view that the only representation that can be attributed to the person preparing the contract is that the certificate is a certificate issued by the local council.

I am however of the view that the annexation of a certificate to a contract by the person preparing it can be seen to be a representation by that person not only that the certificate is the certificate . . . but that it is the whole of that certificate so that where, as here, the certificate is incomplete in that it omits to contain a full description of the significance of the Regional Open Space Reservation, there is a misrepresentation made by the person preparing the contract carrying with it the capacity to deceive.

Then it goes on to Blunts’ conduct, the equivalent of here:

so far as it depends upon the contract to constitute misleading and deceptive conduct, is even more difficult. It is hard to see why a contract prepared by a solicitor constitutes a representation by an estate agent going to matters contained in the contract because the name of the agent is shown in the contract or because the agent distributes the contract or a draft –

That draws the line, no doubt on a view that mere distribution of a document, which is obviously prepared by somebody else, is not in itself misleading or deceptive. I do not need to argue against that proposition for this case because that it not this case.

HAYNE J: Why not? Why is it not this case when it is evidently a survey plan that is incorporated in the brochure?

MR ELLICOTT: It is not this case because the agent is not merely handing out a document prepared by another, but is incorporating it as part of its brochure and – I will not repeat myself – in conjunction with other material. That distinguishes it from Argy’s Case, we would submit, quite clearly. Your Honours, there were two ways in which the agents here gave the brochure their endorsement. First of all, if your Honours go to volume 4, 764 - - -

GLEESON CJ: How long do you expect to require to complete your argument, Mr Ellicott?

MR ELLICOTT: Your Honour, although my notes are plenteous, I think I have covered most of what I have to say. I have to say something on damages.

GLEESON CJ: We will adjourn at 12.45 and we will resume at 2.00 pm.

MR ELLICOTT: If your Honour pleases. At paragraphs 16 and 17, your Honours will read this:

The plaintiffs inspected the Rednal Street property with Mr Spring on 6 February 1997. They saw the grounds and observed a swimming pool with various improvements adjacent to it, located between the dwelling and the waterfront. Mr Spring did not show Mr Butcher a draft contract at that time, but he handed the plaintiffs a glossy coloured brochure which depicted the property. The plaintiffs allege that he said:

‘These are all the details for the property. You have a full coloured brochure on the front and all the council outgoings land survey etc on the rear. That is everything you need to know.’

Mr Spring denies saying ‘that is everything you need to know’. It seems to me likely that he used some such words, but, within their context, those words did not convey a representation that the brochure contained all the information that a purchaser would need before entering into a contract of purchase. Rather, the statement conveyed that the brochure was a very helpful document which conveniently put together in a single place the answer to some questions that purchasers typically asked.

Now, one thing that purchasers typically ask is, “What are the” – not so much the metes and bounds but, “What are the boundaries of the property?”, what they need to know, and, “Are the buildings within the land being offered for sale?” We say that Mr Spring has given added authority by that conversation. We also say that later on, on 14 February, Mr Elder endorsed what the brochure said about the waterfront boundary. At page 767, paragraph 26:

For their inspection of the Rednal Street property they were accompanied by Paul Gillmer, an architectural designer retained by the plaintiffs. At the site, Mr Butcher told Mr Elder that he planned to turn the pool around and have it by the side boundary, to open up space for entertaining.

Now, just stopping there the evidence, the result of the evidence if it is looked at - and I will give your Honours the references - is not that they were just going to get this pool and turn it around. What they were going to do was to remove that pool, fill in the hole and put a smaller pool along the side boundary and open up the rest for entertaining.

Mr Elder was sceptical saying the plan would be expensive to implement and the pool would encroach the mean high-water mark. Mr Gillmer advised Mr Butcher that the idea of moving the pool was feasible based on the position of the high water-mark indicated by Mr Butcher in reliance on the diagram in the brochure.

Now that was said in front of Mr Elder and that showed a reliance by Mr Butcher in front of Mr Elder of the movement of the pool and that, of course, was critical. Once he was confronted with what we say was the real truth, namely that the line went through the middle of the pool, their chances, as I showed your Honours from those photographs, of their achieving their object were nil because you could not put another pool in or open up any entertainment area in the space that was provided.

Now, in relation to that, Mr Gillmer’s affidavit evidence is in volume 2 at 408 and he is cross-examined on it in volume 1 at 166. Ms Radford, the second appellant, her affidavit evidence is in volume 2 at 413 and 414 and her cross-examination is at volume 1, 112 and 114. Mr Butcher’s affidavit is volume 2, 347 and 8. Mr Elder’s affidavit is volume 2 at 423 and 427. The only evidence that I need, I think, to take your Honour to at this stage is the cross-examination of Mr Elder because I think we in our submissions at 5.17, if your Honours go to that, I think this will be sufficient rather than read out slabs of cross-examination.

At 472 to 474 we say Mr Elder under cross-examination conceded – he assumed the correctness of the survey diagram in the brochure. He did not actually know where the mean high-water mark was situated. Any warning as to the feasibility of relocating the pool was based on a belief he held, which was actually mistaken, that you are not allowed to move anything closer to the high-water mark that has already been approved when it encroaches within the 15-metre setback.

In other words, what he was saying when he made this statement that it might encroach the mean high-water mark, he was really meaning you cannot move anything in a way that will make it closer – that is under council regulations – to the mean high-water mark. He was not saying that the mean high-water mark was not at the place shown on the brochure. That is important because my friends rely on those conversations in order to suggest that our client was warned about the fact that the mean high-water mark was not at the place where it is shown, that is where the fence is, in effect.

GLEESON CJ: What was the distance between the back fence and the northernmost extent of the reclaimed land?

MR ELLICOTT: Your Honour, I wrote those down. At paragraph 20, that I think I have already referred to, page 765:

The diagram shows an irregular line . . . and the area between that line and Pittwater is labelled “Reclaimed Area”. In my opinion, a reader . . . would conclude that the “M.H.W.M.” line was approximately the line of the fence.

At paragraph 45 at page 773:

A very careful reader of the contract could have deduced all these plan things, because the Deposited Plan, the Hannagan survey and the permissive occupancy document were all annexures to the contract. Such a reader might also have observed a discrepancy between the location of the ‘M.H.W.M.’ line on the Hannagan survey diagram, which . . . appears on the basis of relative distances to be roughly 4.5 to 5.5 metres back from Pittwater –

GLEESON CJ: Yes. I was not talking about the mean high-water mark shown on Mr Hannagan’s plan. What I have in mind is this, Mr Ellicott. Pittwater, I think, is very shallow and there seems to have been a substantial area of reclaimed land to the north of the back fence of these premises. I presume there was not any time during the year, in recent years, when the water was up lapping against the back fence, or am I wrong about that?

MR ELLICOTT: No, that would be right. Just because it was reclaimed - - -

GLEESON CJ: What effect does reclamation have on mean high-water mark?

MR ELLICOTT: My understanding of a rather complex area of the law is that if it is reclaimed it cannot be the subject of a claim by way of accretion. In other words, accretion occurs by the gradual acts of the sea or the water in a tidal area, and if something dramatic happens, like a reclamation, that cannot add anything to anybody’s land.

GLEESON CJ: It has to be imperceptible for the doctrine of accretion to apply.

MR ELLICOTT: It has to be imperceptible.

HAYNE J: Hence the rather opaque quality which attaches to paragraph 80 of Justice Austin’s judgment.

MR ELLICOTT: Now, in paragraph 12 – if I could just tell your Honours about this before lunch – at 837 in the Court of Appeal:

Some of the history of the successive reclamations on the waterfront of lot 14 is in evidence . . . What was said by the Department (2/460) to be the earliest plan of a reclamation, although undated, contains the names of C & M G Pullicin . . . The next plan (2/452) is marked “PO 64-287 C & M G Pullicin”. Both relate to a permissive occupancy originally granted by the Department during 1964 to the then owners of lot 14. It covered a reclaimed area 10 metres deep on most of the waterfront of lot 14 together with an associated slipway, jetty and pontoon. The reclamation was in the shape of a battleaxe across the water frontage, the axe handle being a narrow section at the head of the slipway. No further accretion could occur to the freehold of lot 14 after this reclamation.

GLEESON CJ: Mr Ellicott, the passage in Taco Bell that was referred to by Justice Hill in Argy was a passage in the joint judgment of Justices Deane and Fitzgerald in [1982] FCA 136; 42 ALR 177 at 202. We will adjourn now until 2.00 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

GLEESON CJ: Yes, Mr Ellicott.

MR ELLICOTT: Your Honours, I had another look at Taco Bell. There is a passage in Henjo v Collins [1988] FCA 40; 79 ALR 83 at 93, Federal Full Court, Justices Lockhart, Burchett and Foster, who agreed with Justice Lockhart, at page 93 and it says this:

Misleading or deceptive conduct generally consists of representations, whether express or by silence; but it is erroneous to approach s 52 on the assumption that its application is confined exclusively to circumstances which constitute some form of representation. The section is expressed briefly, indeed tersely, in plain and simple words which, if I may be forgiven for repeating them, say simply: “a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”. There is no need or warrant to search for other words to replace those used in the section itself. Dictionaries, one’s own knowledge of the developing English language and ordinary experience are useful touchstones, but ultimately in each case it is necessary to examine the conduct, whether representational in character or not, and ask the question whether the impugned conduct of its nature constitutes misleading or deceptive conduct. This will often, but not always, be the same question, as whether the conduct is likely to mislead or deceive.

GLEESON CJ: You have to identify the conduct?

MR ELLICOTT: Yes.

GLEESON CJ: On your approach to section 52, does it follow that, assuming falsity and assuming materiality, anybody who communicates erroneous information to someone else engages in misleading conduct?

MR ELLICOTT: Prima facie, yes. I say prima facie simply because something else in the circumstances may point another way, but that is different.

KIRBY J: That does not seem to square very well with the passage just before the passage you read, just on page 92 at the bottom, where it is said:

Trickery, craft and guile, though not essential elements of liability, are typically at the heart of this –

You could not say in this case that trickery, craft or guile were any part of the brochure, could you?

MR ELLICOTT: His Honour is not saying that it is necessary.

KIRBY J: I realise that. He says that they are not essential but they are typical.

MR ELLICOTT: Yes, but guile might - - -

KIRBY J: It is not even guile, really. It is a mistake, edged around the disclaimer.

MR ELLICOTT: It is not an unfair thing to suggest that there might be guile but, again, it is not necessary. What I am putting, your Honours, is that in Taco Bell the concentration on the word “misrepresentation” may, indeed, lead you away from the true test of the section. I concede that we have been putting argument about misleading and deceptive conduct and using the word “representation”, but this passage from Henjo does, I would submit – and it supports what Justice McHugh was putting to me this morning – take you away from that word and cautions one against concentrating too much on words, even in the alleged so-called misleading conduct, and not looking at everything that is happening.

In relation to the question of title here, the question of mean high-water mark, if one concentrates on that and says was that a misrepresentation, it is likely to take you away from the real question. The real question is whether or not, in an important respect, there was conduct which was misleading or deceptive or likely to deceive by saying to our clients that the swimming pool is within the curtilage of the land and it little matters, in that context, that mean high-water mark is shown as a particular point because that is really what it is saying to the purchaser. It is telling them that and it is not true and it is certainly not proven to be true.

The fact that it is not proven to be true does not rebound - this is another point but I have to be quick – that is, that it goes through the centre of the pool and therefore is a misrepresentation, does not rebound against our clients, but it rebounds against those who want to assert that it is beyond the pool and, therefore, the representation was true because we were entitled, in our submission, to rely, particularly as we bought lot 14 in deposited plan 9500 according to the contract and your Honours have that in papers.

There is a judgment of Justice Heydon in Fliegner v MNM Pty Limited [2000] NSW CA 83, I do not think it has been reported yet. It is a judgment of Justices Priestley, Fitzgerald and his Honour. At paragraph 66 there was a question as to whether or not they had waterfront land. At paragraph 66 his Honour asked this question and the other Justices agreed:

Whatever might be the force of these competing bodies of evidence, consisting as they largely do of the unreasoned opinions of surveyors, valuers and lay people, some of whom were not called, in resolving boundary disputes in a system of landholding other than the Torrens system, they have no materiality to the present dispute.

That is what we are really saying here, that it is not relevant.

All that is material is Certificate of Title Volume 10864 Folio 220, and any expert evidence directed to explication of what it signifies.

That is to say here, it would be the survey of our client’s surveyor.

There was no such evidence. The evidence on both sides rather took the form of dogmatic assertions. It is possible that expert evidence might have been given to the effect that the wavy line on the Certificate of Title, which appears to represent the current mean high water mark, does not do so. That evidence was not given. The onus rested on the plaintiffs to demonstrate that that line represented something other than the current high water mark. This they did not do.

Now, what his Honour, as we read it, is saying that in this case you look at the Certificate of Title and what it says. If you want to say that the mean high-water mark is somewhere else, it is up to you to prove it.

Had the evidence been different, issues may have arisen as to s 42(1) of the Real Property Act 1900 (NSW), which provides -

and his Honour sets that out -

The effect of s 42(1) is that subject to the possible application of the exceptions in s 42(1)(a) and (c), the plaintiffs held Lot 10 free from any estates or interests . . .

The exception in s 42(1)(a) would appear not to apply.

Now, his Honour deals with that, but at 72 there is a relevant passage, or the relevant passage for present purposes:

However, because of the condition of the evidence it is not necessary to reach any conclusions in relation to these Real Property Act points -

which, for all one knows might arise here of the issue when it was gone into -

The position in short is that the plaintiffs bore the burden of proving that Lot 10 did not run to the current mean high water mark. Whether or not the defendant has called sufficient evidence to establish that it did, the plaintiffs did not discharge the burden resting on them of establishing that it did not. Accordingly, they did not discharge the burden of proving that their land did not physically abut the water, and of proving that in this sense the land was not waterfront land.

GLEESON CJ: Are you relying on this?

MR ELLICOTT: Yes, because we are not in the position of the plaintiffs here. What his Honour is saying – they were trying to say that they were not given waterfront land, and what I assume the defendants were relying on was the certificate of title, which showed that it was waterfront land. It was up to the plaintiffs, who were asserting that it was not, to prove that the mean high-water mark was somewhere other than on the title, so that the result would be that they did not have waterfront land in the circumstances of that case. That, we submit, is supportive of the view that we have been putting.

Your Honours, I have been referring to the determination of high-water mark boundary in New South Wales at the relevant time. Could I hand up copies of the Surveyors (Practice) Regulation 1996, in particular, regulation 57, which sets out the procedure that I referred to this morning.

Just to collect some matters, first of all, in relation to reliance, the relevant paragraphs in the judgment of Justice Austin are 67, 145 and 196. I thought your Honours might like those at one particular point in your Honours’ notes. The relevant part of the contract your Honours will find set out in the judgment at 769 to 771. The contract itself also appears in full at volume 3, page 644, and the certificate of title appears - - -

HAYNE J: Could I ask what the last page of the contract is? It starts at 644. Through to what page does it go?

MR ELLICOTT: I think it is 685, your Honour. I think that is the back of the ordinary contract.

HAYNE J: Thank you.

MR ELLICOTT: The certificate of title is 652. What was sold was lot 14 in deposited plan 9500. That appears in the same volume at 490 and there is a wavy line around Pittwater. Where it is relevant to lot 14 it seems to be close to what is otherwise a straight line.

HAYNE J: Is there any better copy than appears at 490? In particular, is there anything which would reveal more clearly what is the annotation on the left-hand boundary of lot 14? I can read the distance. What I cannot read is what follows the distance. It appears to be “194’4¾” to” something, but I cannot - - -

MR ELLICOTT: The same thing is, I think, said in the others, and it is no clearer. It looks like “TR” something or it might be “FR”. I cannot help your Honour at the moment, but we will have a look.

HAYNE J: Thank you.

MR ELLICOTT: His Honour Justice Austin, at volume 4, 795 and 796, made findings about Mr Harkins misleading. The passages are a helpful analysis of what has been concerning your Honours, I think. At line 30 on 795 – 123 is the paragraph:

Special condition 26 of the contract stated that the purchaser acknowledged and agreed that, in entering the contract, he relied only on the warranties and representations . . . In my opinion, that clause did not qualify the representation by Mr Harkins to which I have referred.

Just going back to 121:

A survey identification report, such as Mr Hannagan’s report, serves to locate the land and its improvements by recourse to physical reference points and registered title dimensions. Such a report does not purport to identify any accretion at the water boundary of a waterfront property. So much is clear from the evidence of Mr Bee. The waterfront boundary is depicted merely by applying the dimensions shown on the registered deposited plan to physical reference points at the street boundary. The expression ‘mean high water mark’ is used by modern surveyors (though not always, with consistency, by the surveyors of earlier times) to refer to the water boundary ascertained in this fashion. Consequently the diagram in Mr Hannagan’s report purported to depict, by the letters ‘M.H.W.M.’, the location of the mean high water mark by registered title of lot 14, in relation to Pittwater, the reclaimed area and improvements on the land (including the swimming pool). The report did not purport to represent anything about any possible title by accretion to any part of the reclaimed area shown on the diagram.

GLEESON CJ: You made the point before lunch, I thought, that accretion cannot occur as a result of reclamation, because the doctrine of accretion depends upon imperceptible movement.

MR ELLICOTT: Yes.

GLEESON CJ: And if a work of reclamation on a harbour foreshore area produces the result that the water is a lot further back from the boundary from where it used to be, that is not accretion.

MR ELLICOTT: That is correct, but, as I am understanding the proposition that I am being tested with, if I say the mean high-water mark runs through the swimming pool, there is a view that that is an ambulatory matter and that, for all we know, it might be on the other side of the swimming pool, albeit not exactly where it is shown on Mr Hannagan’s plan.

GLEESON CJ: That is a slightly different point. I am still not clear in my own mind, I must confess, about what the meaning of the expression “mean high-water mark” is in a context where work of reclamation has produced the result that, on any view of the matter, the water is a long way away.

MR ELLICOTT: Yes.

GLEESON CJ: There is never a period during the year, is there, when the water is lapping at the back fence of this property?

MR ELLICOTT: No. It is a problem that arises – when the water is lapping against land - - -

GLEESON CJ: You are not going to get your feet wet if you stand just outside the back fence of this property.

MR ELLICOTT: When the tide is going backwards and forwards over a period of time it may be, obviously, that the mean high-water mark may shift to what previously was the water, that is a build-up. But when there is a reclamation up to what was previously marked and accepted to be the mean high-water mark, then obviously you cannot get anything more by accretion.

HAYNE J: Thus, in the facts of this case, a question may have arisen about whether mean high-water mark had moved between 1919, which is the date of the deposited plan, and 1964 or thereabouts, which is the date of the first, I think, reclamation.

MR ELLICOTT: Yes, that is true.

HAYNE J: And that the title, if the title is understood as giving title to mean high-water mark, would be a title to whatever point on the earth’s surface was properly to be identified as mean high-water mark immediately preceding the act of reclamation.

MR ELLICOTT: Yes, one can accept that as a matter of interpretation of the words “mean high-water mark”, but, first of all, this passage in his Honour’s judgment is saying that it is a matter that is related to title and does not take account of anything about any possible title by accretion. That is what surveyors understand by “mean high-water mark” shown on a title deed. When they do show it, it is measured in terms of the side boundary measurements, and, therefore, it goes through the pool. That is what he is saying. He goes on in similar vein in paragraph 124:

Consequently Mr Harkins represented, by annexing Mr Hannagan’s survey report to the draft contract which he made available to the plaintiffs’ solicitor, that the survey report was accurate in what it purported to do. Since the survey report did not purport to do anything with respect to title arising by accretion but not reflected in a registered deposited plan, there was no representation by Mr Harkins concerning title by accretion. There was, however, a representation by him that the mean high-water mark identified by applying the registered plan measurements for lot 14 from fixed reference points at the street boundary was located beyond the swimming pool and did not traverse it.

And he goes on to refer to Mr Bee’s survey.

GLEESON CJ: The corollary of the true fact as you assert it being that title to the land north of the mean high-water mark that went through the middle of the swimming pool did not exist; rather, there was a permissive occupancy.

MR ELLICOTT: It could be an explanation of it, yes, because what it showed, according to the Hannagan plan, was reclaimed area up to a point but it is shown beyond the pool, but non constat that what you do when you make the measurements and get it going through the pool, that the area between the middle of the pool, if I may put it that way, and the start of that reclaimed area is reclaimed land. It can only be explained in the circumstances by being permissive occupancy because there was evidence about it.

HAYNE J: But the point is captured most neatly in the first sentence at paragraph 126 where his Honour says that:

It is irrelevant that, at the time of preparation of the draft contract, Mr Harkins may have become entitled as registered proprietor to some additional land by accretion, even if the additional land brought the water-side boundary beyond - - -

MR ELLICOTT: Yes, and that is our case as well.

HAYNE J: I understand that.

MR ELLICOTT: Regarding Lachlan Elder, his Honour’s findings are at 808 and 809. At paragraph 168 on 808:

I have found that when Lachlan Elder Realty distributed the colour brochure with his authority, Mr Harkins made a representation that the mean high water mark was located beyond the swimming pool. In my opinion, however, no equivalent misrepresentation was made by Lachlan Elder Realty. Both sides of the brochure contained two propositions –

that is the disclaimer.

Those propositions went to the position of Lachlan Elder Realty, but did not purport to affect . . . Mr Harkins –

He then summarises in words which we would submit are not there:

‘Here is a diagram showing that the mean high water mark is located beyond the swimming pool. It is a diagram provided to us from a source that we believe to be reliable. However, we cannot vouch for the accuracy of what is shown in the diagram, and if the matter interests you, you should rely on your own inquiries.’

We would submit that is not only contrary to authority in the Federal Court but that is not what it says and in the context, that disclaimer does not have the effect that his Honour says it has.

The Court of Appeal dealt with the matter at 843. They call it “The Misrepresentation Questions”. Their Honours said at paragraph 30:

There is no doubt that the brochure, by incorporating a copy of the Hannagan survey diagram, conveyed a representation by the vendor about the location of the swimming pool in relation to the title boundary.

His Honour sets out what Justice Austin had found. At paragraph 32 over the page:

Having found, against the vendor, that the brochure conveyed a representation as to the location of the pool within the freehold (pars 115, 128-130), and that the vendor’s conduct in that respect was misleading or deceptive (par 144), it was not open to the Judge to find in favour of the agents that the brochure was not misleading or deceptive (pars 170-1). It is well established that conduct cannot be misleading or deceptive unless it conveys a misrepresentation.

With respect, we say that that has been passed by. That is a very broad comment to make about something that Justice Deane said in Taco Bell, but I would submit that the development in cases such as Henjo has been to caution judges about applying the section other than by regard to the words used. It may be a distinction without a difference in almost all cases, but it is essential to keep the difference in mind.

GLEESON CJ: I think you are entitled to make the comment that Taco Bell was a case about confusion as distinct from misrepresentation. That was the context in which Justice Deane’s comment was made.

MR ELLICOTT: Yes.

GLEESON CJ: Even so, it is possible to provide information to somebody expressed in such a qualified form that error in the information does not involve misleading conduct.

MR ELLICOTT: Yes, the relevant words are “in such a qualified form” and that is merely invoking the proposition, well look at it in all the circumstances and ask the question.

GLEESON CJ: Well you have got to characterise the conduct.

MR ELLICOTT: Yes, that is correct, with great respect, your Honour. Now, your Honours will obviously be reading, I assume, I hope, at paragraph 35 through, but again, having in mind that it leads to paragraph 47, can I take your Honours to 47. His Honour does this after referring to Argy and the case of Dean v Allin. I would simply hand up copies to your Honours. It is a very restricted case, it is really about conveyancing and his Honour sets out the relevant passage at paragraph 45. But at paragraph 46:

There is no reason why these principles should not apply to other agents as well. The agent’s brochure carried disclaimers in fine print at the foot of the front and back pages but I would not accord these decisive significance on the present question.

So he is aware of these cases that minimise disclaimers in small print.

They are however relevant as showing that the agents did not accept responsibility for the accuracy of the information in the brochure.

Well that is a two-edged sentence that one could argue about, but -

The only representation in the brochure as to the location of the pool in relation to the title boundary was that conveyed by the diagram reproduced on the back.

Now, we would say that is not correct.

GLEESON CJ: What paragraph are you looking, Mr Ellicott?

MR ELLICOTT: Paragraph 47, your Honour. I had just read 46, 47 the first sentence I have already, in effect, addressed on. We say there is other material there like the photograph –

The text contained nothing of relevance for present purposes.

This paragraph is really a failure to look at the document as a whole and see the plan in its context. It is a very literal approach to the whole issue.

The diagram purports to be a copy of an original prepared by a professional surveyor.

GLEESON CJ: I am terribly sorry, I am just lost here.

MR ELLICOTT: Page 849. I had said I was not going to refer to it because it was set out at page 848 at paragraph 45. I am sorry, your Honour.

GLEESON CJ: Thank you.

MR ELLICOTT: Now, he says:

The diagram purports to be a copy of an original prepared by a professional surveyor.

I suppose it looks like it, but there is nothing there that tells you that that you can read, except that it looks like a survey, but there we are.

In my judgment they made no representation as to its accuracy. The question can be tested by supposing –

This is where the error lies, in our submission, in the Court of Appeal’s judgment –

that they handed copies of the survey report and diagram to prospective purchasers telling them, without more, that it was a copy of a survey they had obtained from the vendor. The recipients would known that the agents did not hold themselves out as professional surveyors, and had not carried out the survey themselves.

The agents by proffering copies would be impliedly representing that they had an honest, or perhaps honest and reasonable, belief that the copies were genuine and recorded the surveyor’s opinion on the matters disclosed. See Spencer Bower, Turner & Handley . . . They would also impliedly represent their belief that the report and diagram were accurate . . . but I see no good reason why they would intend to represent that it was in fact accurate, or why the recipients would think that the agents were making any such representation.

So it is indistinguishable. They are similar words to Justice Hill in Argy. We would submit we do not have to say that Argy is incorrect. It was decided on the same facts some time ago, and they are quite distinct from this case, but what his Honour has done there is to take the whole thing out of its context and to simply say that if somebody takes it out of this brochure and hands it over, then that is the test, but we would submit that is just not right and it is contrary to the judgments of this Court and the Full Court of the Federal Court, and if one searched, I suspect, the judgments of the New South Wales Court of Appeal.

Also, strangely enough, that seems to be contrary to what his Honour had said at paragraph 32, which is a mystery your Honours do not have to solve if it is a mystery, because he said quite emphatically later that he does not think it was misleading or deceptive, but he says how can you find, in effect, that the vendor’s conduct was misleading or deceptive in handing out the brochure. Having found that, it was open to him to find in favour of the agents that the brochure was not misleading or deceptive.

GLEESON CJ: I think what he means, whether it is right or wrong, is to place the emphasis on the word “the brochure”, which is not necessarily the same as the defendant’s conduct.

MR ELLICOTT: Where he was wrong, he took the survey out of the brochure, for the purposes of illustration, in that paragraph that I have just read. Your Honours, we have submissions on the issue of damages and they are in our written submissions at 5.38 and following.

GLEESON CJ: As I understand it, Justice Austin just made some rather general findings of fact at the end of his judgment relevant to the matter of damages, and he did not assess damages nor did the Court of Appeal.

MR ELLICOTT: Yes. I do not want to stay long on this point, but the answer to what your Honour has said to me – because that is exactly what my friend is saying – is that that is not what his Honour purported to do at 196 at page 816. Could I quickly take your Honours to that:

In case the matter goes further and I am shown to be wrong in my conclusions, I should make some observations on the question of damages.

This is what judges often do.

GLEESON CJ: Yes, but he did not make any calculations.

MR ELLICOTT: No. Can I come back to that:

Mr Butcher has given evidence, which I accept, that but for his dealings with Mr Harkins and Lachlan Elder Realty, he would still own the Calvert Parade property. It there seems to me that all of the categories of damages relied upon by the plaintiffs would be available against Lachlan Elder Realty if I had found that the company engaged in misleading or deceptive conduct. I include rental with respect to the factory premises, having regard to the facts to which I have briefly referred. Moreover, I accept the plaintiff’s evidence on defining the losses in the various categories.

If one goes to the categories at paragraph 193, what we have simply done is to identify what we say is the undisputed evidence.

GLEESON CJ: If you win, we would take what is our comparable course to referring it to the Master, would we not, and remit it to the Court of Appeal to quantify the damages?

MR ELLICOTT: Your Honour, if your Honours did that and were not prepared to look at the figures, albeit that they were – and having regard to the question of costs - - -

GLEESON CJ: It is not agreed between the parties, is it, what the damages would be in the event that you won?

MR ELLICOTT: What we are really saying is – and I do not want to stay long on it, because I understand the Court’s usual practice – that in this case the evidence was undisputed as to these items. He has identified the items, he has said that it was a cause of the damage, that is to say - - -

KIRBY J: The problem with this, Mr Ellicott, is that it effectively deprives a party of any right of appellate review if we get it wrong. That is not a correct principle. It has to go to be determined by the court below, so that if we make a mistake there is a review. It is a human right.

MR ELLICOTT: There is such a thing as ultimate decision, your Honour, and there is no such thing as this Court being wrong, except when it decides that it is wrong.

KIRBY J: I do not know about that. The Privy Council said so in a couple of cases.

MR ELLICOTT: A lot of cases, but, as your Honour would agree, they have been removed. That is all I wanted to say about damages, your Honours.

GLEESON CJ: Could I ask you a question I am going to ask Mr Foster also. I realise you were not in the case in the Court of Appeal, but is it common ground that the issues the subject of the notice of contention were argued in the Court of Appeal and at first instance?

MR ELLICOTT: As we understand it, Mr Ireland in the Court of Appeal and, as I understand it, Mr Hodgekiss in the court below argued this point in both courts in the Harkins matter, if I can call it that. In the Court of Appeal Lachlan Elder did no more than orally say they adopted the submissions but you will not find any point in the pleadings, as I understand it, about it. My junior has told me that. Secondly, when this matter came on for special leave, this point was not raised as a reason why special leave should not be granted.

I heard what your Honours of course said this morning and one possible course of action is that your Honours might tell me now to go away. If your Honours were going to say that, I was naturally wanting to make some submissions.

GLEESON CJ: No, we are not going to say that.

MR ELLICOTT: Those are my submissions, your Honours.

GLEESON CJ: Thank you, Mr Ellicott. Mr Foster, the course we will take is to hear argument from you in answer to the arguments that
Mr Ellicott has made and then we will hear Mr Ellicott’s reply to what you have had to say about that, and then we will consider the course that we will take further in relation to the matter and, in particular, the course that we will take in relation to your notice of contention and Mr Ireland’s application.

MR FOSTER: I have to say something about that in the course of developing an answer to Mr Ellicott’s argument.

GLEESON CJ: That is probably so.

MR FOSTER: I will try to keep that very brief, your Honours. May I add to what my learned friend has just said. It is correct, because I was in the Court of Appeal, although not at the trial, that the position we took on the material set out in the notice of contention as adumbrated here was that Mr Ireland had argued it, we should have the benefit of it and we took the benefit of it. We did not separately reargue it, but it was well understood, we would have thought, that we were relying on it because, as - - -

GLEESON CJ: I understood that from what Mr Ellicott has just told us.

MR FOSTER: So, your Honours, it was clearly taken there. It seems, as far as the trial was concerned, that there may be some lack of clarity in what was being put at the trial and I cannot assist too much about that because the submissions are not in the transcript. There are some written submissions but it is not particularly clear, but we would submit to your Honours that whether it was or was not argued at the trial, it was certainly fully argued in the Court of Appeal and the matter was gone over well and truly.

As to the matter which my learned friend last raised, which is that I did not say to this Court on the special leave application that we would raise these matters on a notice of contention, that is true. I did not put that at that time. However, our answer to that is, firstly, that we are entitled to raise it; secondly, Mr Ireland put it in his special leave application which followed ours immediately on the same day. May I just read it to your Honour, so that there is no doubt about it. Mr Ireland said, at the foot of page 4 of the special leave transcript in the Harkins matter, that:

this was quintessentially a miscarriage of justice not only because it was done by the judge’s own private working –

he is referring to Justice Handley –

but because it was done without an opportunity to be heard. Your Honours have granted special leave in the other case –

referring to the case currently before the Court –

It would be an extraordinary development if this factual question were not able to be re-agitated in the context of Mr Foster’s case.

GLEESON CJ: We understood that. We just have an issue as to management of this litigation.

MR FOSTER: I understand that, your Honour.

GLEESON CJ: We have set aside a day for the appeal, we have a case listed for tomorrow, and we have this notice of contention of Mr Ireland. Now, a possible course for us to take – not necessarily the course we will take, but a possible course for us to take – is to hear full argument on Mr Ellicott’s appeal, and then reserve our decision and consider in due course whether we need to hear further argument from counsel on the notice of contention.

MR FOSTER: If your Honour pleases, that is a possible course.

GLEESON CJ: That is something that is under consideration at the moment.

MR FOSTER: One of the issues that we submit to your Honours inevitably has to be determined by any court considering the case that was pleaded and run is where exactly the mean high-water mark actually was in February 1997. That has to be determined.

GLEESON CJ: Does that involve the proposition that there is at least a possibility, on the evidence, that the mean high-water mark had receded to the north as a result of accretion or some other cause before the reclamation?

MR FOSTER: Precisely, and, indeed, the evidence seemed to be all one way on that. Mr Green said it. Mr Bee really did not disagree with him. His Honour virtually found it, when one comes to look at what his Honour actually found in some of the passages that we would take your Honour to and that Mr Ellicott has already taken the Court to.

KIRBY J: But that required a number of steps to be taken.

MR FOSTER: No, it did not, your Honour.

KIRBY J: As I understood it, it had to be surveyed and steps had to be taken with the Surveyor-General and - - -

MR FOSTER: That is what Mr Ellicott is putting to your Honours. We submit that is just wrong. The mean high-water mark is - - -

KIRBY J: But there is a title and it is Torrens Title.

MR FOSTER: Yes.

KIRBY J: It is title by registration.

MR FOSTER: Ordinarily.

HAYNE J: And what you get title to is not measurements.

MR FOSTER: Exactly.

HAYNE J: You get title to an identified piece of land. The notion that the measurements are a necessary part of what is indefeasible is a point at least of contention.

MR FOSTER: Your Honour, we submit that what your Honour Justice Hayne has been putting to Mr Ellicott throughout his argument this morning is correct, that the principles set out in the article of Mr Moore, which we have referred to in our submissions, are correct. They have been followed in decisions of other courts in New South Wales.

KIRBY J: Yes, but all of this is outside the application of the Trade Practices Act.

MR FOSTER: No, it is not - - -

KIRBY J: I mean, ordinary folks do not read Mr Moore’s article. They go to buy a piece of land and they get a document and they do not envisage that they are going to have to go and take steps to correct their position.

MR FOSTER: Our propositions are quite simple, your Honour. Firstly, the water boundary of this property is the mean high-water mark at any given point in time, not a physical depiction on a diagram of where the line that was shown on the 1919 DP would be on the ground.

KIRBY J: That is all very well, but you gave out a brochure and you gave out a brochure with a diagram and that diagram showed a particular place and that turned out to be wrong, so prima facie, that is a misrepresentation.

MR FOSTER: It is the “that turned out to be wrong” with which we cavil, your Honour.

KIRBY J: Well the diagram turned out to be wrong?

MR FOSTER: No, the diagram is not wrong, your Honour, and that is our case. I will develop this, but that is our case and I wanted to come straight to it because it is not correct - as Mr Ellicott has put to the Court, as indeed the trial judge found and the Court of Appeal might have found, it is a bit hard to tell - but one determines where the mean high-water mark, for the purposes of deciding where the water boundary is, by measuring off the DP to see where, in effect, the line that was shown on the DP in 1919 is on the ground. That is wrong. What one does, if one is doing it properly, is to determine where the mean high-water mark actually is and that is done by taking aerial photographs and plotting what one determines from those photographs onto the ground.

McHUGH J: But it does depend, does it not, on what the representation was?

MR FOSTER: It does.

McHUGH J: The representation that the trial judge found is set out at 796 at line 2:

There was, however, a representation [made] by him that the mean high-water mark identified by applying the registered plan measurements for lot 14 from fixed reference points at the street boundary was located beyond the swimming pool and did not traverse it.

On that view, the parties seem to have assumed that wherever the mean high-water mark was, it was the boundary of this particular property and the representation was that it was located beyond the swimming pool. So the question is, was that misleading?

MR FOSTER: Your Honour is correct in terms of how his Honour characterised what was represented, but what his Honour actually did was, having come to a position, we submit, of being satisfied, in effect, that Mr Bee’s work was to measure on a “metes and bounds” basis where that line shown on the DP was on the ground by regarding the street frontage as fixed and just measuring, having regard to the measurements on the DP, Mr Bee came to a position to demonstrate that the “line”, and I am using that word carefully, went through the pool. That is an exercise in inutility, we submit.

McHUGH J: On your case it is an irrelevancy, is it not?

MR FOSTER: Totally. What his Honour then did, having discovered, in effect, when he came to consider the matter, perhaps, that that is all the evidence showed. His Honour then found, as your Honour has just read to me, that the representation was something other than what in commonsense it was, that is that it was a representation about what you would find if you measured off the DP. That was not the case that was pleaded. It is not the case that was run. It is really not the case my learned friend is putting even now, and it is not, with respect, a case which could be teased out of this brochure. It is an artifice.

In our respectful submission, what is, if anything, represented by this brochure? I do not want to be taken as saying the agent took upon itself anything to do with the accuracy of the plan, but what is represented, if anything, is that the pool is constructed within the freehold. The way one determines whether that is so or not, is to determine where the water boundary - - -

McHUGH J: Is it your case that the adjectival clause that appears in the middle of his Honour’s finding as to the representation is erroneous, that that was not the contest between the parties?

MR FOSTER: Yes.

McHUGH J: In other words, your point is that the representation was a representation that the mean high-water mark was located beyond the swimming pool.

MR FOSTER: Yes, that is the only sensible way one can deal with it. If I may respectfully turn around what Justice Kirby was putting to me, purchasers do not look at a brochure like this and start thinking about 1919 deposited plans or any other deposited plans or how surveyors approach the task at all. All they would be arguably interested in is where the boundary is actually located. “Where is my land?”

HAYNE J: Are purchasers in New South Wales commonly given the advice, “Take a tape measure, find the start point and locate your land”?

MR FOSTER: I have been every time I have bought a piece of land, your Honour. I cannot talk much beyond that but - - -

HAYNE J: I would have thought.....would reveal it.

MR FOSTER: The evidence does not reveal it.

KIRBY J: We must not take any new evidence.

MR FOSTER: I accept that your Honour. The evidence does not - - -

HAYNE J: Conveyancing practice is not a matter of evidence. Conveyancing practice is plainly a matter within the knowledge of the courts.

KIRBY J: I would prefer it to come from an independent source.

MR FOSTER: The other thing I can put to your Honour, taking up the invitation to do so, is that when I was trained as a solicitor dealing with conveyances one had to tell your clients to do just that. Often surveys were obtained before exchange. That is not done so much now. There is a reason for that. That is because of the disclosure provisions in the Conveyancing Act. If a vendor puts a survey in a contract and enlivens the disclosure provisions in the contract and that survey turns out to be wrong, then the purchaser can get out of the contract, on that ground, which, of course, was the case here, if he had chosen to do it.

I have jumped into that a little, but I did wish, with great respect to Justice Kirby, to make clear what our submissions were in relation to the proposition that this statement as to the boundary was false. We do not accept that. We say they have not proved it.

GLEESON CJ: Just coming back to main high-water mark, Mr Foster. Once substantial reclamation work has been carried out on the foreshore of a waterway, how do you then determine where mean high-water mark is?

MR FOSTER: It is rather difficult.

GLEESON CJ: It has been destroyed in a sense.

MR FOSTER: Effectively, yes. To take up your Honour’s point - - -

HAYNE J: Is that right? Here you have extensive departmental files because of the permissive occupancy.

MR FOSTER: Yes, I took the Chief Justice’s question to be perhaps that if in 1997, absent historical records, you came to do it, it would be difficult.

GLEESON CJ: So you would rely on historical record.

MR FOSTER: You would have to. Indeed, that is what we do in our submissions.

GLEESON CJ: Indeed, there might well be aerial photographs that were taken before the reclamation.

MR FOSTER: There were. The only person who did is Mr Paterson, who, we submit, got it right. He makes it very clear that the pool is constructed on the freehold. There is no argument about it. Not only did the evidence, in our respectful submission, not establish that the representation was false, but there was plenty of evidence to suggest that it was true.

The only way that the courts below, in effect, got around that issue, or got the issue confused, is by embarking upon and determining a boundary according to a very different process, that process being: go to the street boundary, get your pegs, look at the measurements and the distances on the plan from 1919, measure those back and, bingo, you have a line on the ground.

That line on the ground is not the boundary. It is no more or less than a physical depiction on the ground of the line shown on the DP, which was never the boundary. It was never the boundary. It was only an indication in 1919 as to where the boundary was at that point in time. Your Honours, that is where the case has gone completely, if I may put it colloquially, off the rails. It is a killer point, as Justice Kirby put to Mr Ellicott, because it means they cannot win, no matter what we said.

GLEESON CJ: Where does that leave Mr Harkins?

MR FOSTER: It leaves him in the same position as us. I do not hold a brief for him.

KIRBY J: But it is a rather unsatisfactory way for the matter to be dealt with because the court below has not, as it were, endorsed this principle and we are asked to do so really for the first time.

MR FOSTER: Well, not really.

KIRBY J: What if it is factually erroneous, a matter that has not been tried? Then we are back to dealing with the matter on the basis on which it has been tried, which is on the basis of the representation.

MR FOSTER: I cannot agree with what your Honour is putting to me. It was tried on the basis that this representation was not false. This was fully argued in the Court of Appeal. The fact that his Honour - - -

KIRBY J: Is falsity the criterion of the statute? Misleading is the criterion.

MR FOSTER: Quite, but in this case what was put was – your Honours, I should come to grips with that, because I know your Honour Justice Kirby is concerned that we are focusing too much on misrepresentation - - -

KIRBY J: I am, indeed, and it is not limited to this appeal. It is a very common problem.

MR FOSTER: Your Honour, with respect, is perfectly correct, but in this case one does not need to take time over it, because the case that was put was that the conduct that was engaged in for the purposes of section 52 was the handing over of the brochure to Mr Butcher on 6 February by Mr Spring. The effect of that was that the agent made a representation as pleaded, so that whether or not in other cases there needs to be a representation does not matter. The case here has always been that, whatever happened, we made a representation. That is why, with respect to the Chief Justice, he is right in terms of characterising the conduct. One has to do that before one goes very far.

In this case, it always was that we made a representation, and, therefore, in order to show it was misleading, they have taken on the burden of proving it was not true, in that the boundary was somewhere which meant that the pool was not on the freehold. That is the burden they undertook. They chose to do it in a particular way. We did not. We fought them and on that issue we lost – we say, for the wrong reasons. The courts below got it wrong. There is no need for the matter to go back on this point. It is all there.

Before I go back to the pleading, your Honour the Chief Justice asked about what is meant by the mean high-water mark. We have not asked your Honours to bring this case to Court, but it is in our submissions and may I simply read this passage to your Honours. It is the case of Verrall v Nott [1939] NSWStRp 7; (1939) 39 SR (NSW) 89. It is a judgment of Justice Nicholas. At 97.2, in the context of considering what high-water mark meant and so on, his Honour said this:

I do not think it can be applied to the term “high-water mark” as used in the schedule. That term appears to denote something which of its own nature varies from time to time or is ambulatory, to quote the expression used by counsel in argument, and high-water mark must mean the mark to which the sea reaches normally between the neap and spring tides. If this were not so then if the sea were to gain on the land there would be portion of the land under the sea which would not have been vested in the Harbour Trust –

So, in our submission, the mean high-water mark is the average point to which the sea reaches between those times.

Could I take your Honours to the pleading because it is rather important. My learned friend is trying, with great respect, to run a case that was not put and is not available to him. If your Honours go to volume 1 at page 3, there are some averments on pages 1 and 2 which are essentially matters of fact which I do not need to worry your Honours with, but under the heading “THE FIRST CONTRAVENTION BY THE FIRST RESPONDENT”, and that is my client, Lachlan Elder, this is said in paragraph 17, and these words are not unimportant:

The First Respondent when distributing the four colour brochure represented that –

so the proposition is that when we handed it across we represented something –

(a) the four colour brochure was a true and accurate brochure –

we submit that is a meaningless allegation on its own –

(b) the permissive occupancy did not affect any improvements of the land; and –

and this is the important one –

(c) the swimming pool constructed on the Rednal Street property was wholly constructed within the rear boundary towards Pittwater of the Rednal Street property.

GLEESON CJ: Well, (b) and (c) are each the corollary of the other, are they not?

MR FOSTER: Yes.

KIRBY J: What do you get out of (c)? You are asserting so what? This is what they are saying and in fact it is true?

MR FOSTER: It is true. This is their case. I am sorry, your Honour, assuming that we said as much as that. I am not accepting we said as much as that, but at its highest that is their case against us. That is the one they put, that is the one they ran.

KIRBY J: Let us see how you answered that.

MR FOSTER: I can take your Honour to that. If your Honours go to page 18, paragraph 10:

the First Respondent admits that it distributed the colour brochure . . . but otherwise denies the allegations contained in paragraph 17 - - -

KIRBY J: Does that not indicate that you joined issue - deny that it illustrated that the swimming pool was constructed?

MR FOSTER: No, we deny that we represented that it was. This is an allegation of what was represented only at this stage in paragraph 17.

GLEESON CJ: But you also need to go to paragraph 13 on page 18, do you not, because it was paragraph 21 that contained the assertion that the making of the misrepresentations was misleading conduct, and that is what you put in issue.

MR FOSTER: Yes, amongst other things. The curious thing about this pleading is that it does not make a conventional allegation of falsity. Usually one sees in these sorts of cases that there is an allegation that the defendant represented X, whatever it is, and that X was not the fact. It is not actually here directly, although if the Court looks at paragraph 19 in the context of the allegation there made, which is that we failed to advise them of something, what one sees embedded in (a) in the last three lines is an allegation, in effect, that the true position was that the permissive occupancy owned by the Crown included part of the swimming pool.

GLEESON CJ: But the allegation of falsity is wrapped up in paragraph 21, is it not?

MR FOSTER: Probably. It does not matter too much where it is, but it is there. That is the nature of the allegation of falsity, though, that is, that the pool was not constructed on the freehold in fact – not according to if one goes off and measures where the line from the 1919 DP was. And that is hardly surprising because, really, in our submission, the case that the trial judge ultimately found was the nature of the representation simply cannot arise.

GLEESON CJ: Was it ever pleaded or argued that there was a representation that there was no doubt about where the boundary was?

MR FOSTER: No, your Honour, and that would have had to have been pleaded. Nobody approached this case on that basis. One cannot get that out of this statement of claim.

McHUGH J: Why have we got to go to the statement? It seems to me that there is a real problem with what is happening at the moment, and that is that we are getting into issues other than what is in the appeal. What we should be looking at, if we are only going to hear this stage of the appeal, is whether Mr Ellicott has made out any of the grounds that appear at 866 to 867. That was what his grant of special leave was limited to, and they are the questions that have to be raised. They have to be determined.

MR FOSTER: I am going to move to those immediately, your Honour, but, with respect, it seemed to us appropriate to be very clear exactly what the case was that was put, because it is not open to my learned friend to put a case, in our submission, that we represented that there was no doubt about the title, or that one would not have to take steps in relation to the title if one wanted to clarify the DP. There is just nothing put there about that. That was not pleaded and were not issues that were litigated below.

McHUGH J: That may be a notice of contention point.

MR FOSTER: Well, it is not, your Honour. It is a question of what it is that we are actually meeting in terms of what the case was.

KIRBY J: Yes, but has it been clearly found below that you did not make a representation such as is pleaded in 17(c)?

MR FOSTER: Yes, it has, and, as I indicated to the Chief Justice, part of the setting in which we submit that was a correct finding was the setting as to exactly what was the subject matter of what we said. What was it ordinarily understood to be? Was it ordinarily something an agent would - if I can use these words – take responsibility for, or is it so far beyond what a selling agent would be expected to know as to fit within the rubric of the agent not making a representation as to the truth - - -

KIRBY J: Yes, but the answer to that that the Act seems to spell out is, “Do not put these drawings in your brochures”, because all sorts of people come along, who do not have the time, inclination or money to be getting advice on these things, and just look at your drawing, and the drawing is a representation as to where the boundary line is.

MR FOSTER: That may be, if it was our drawing.

KIRBY J: I mean, you did not have to put that drawing in.

MR FOSTER: No, we did not have to do anything.

KIRBY J: It was put in to give the aura of authenticity - - -

MR FOSTER: Who knows why it was put in, your Honour. I do not think there is any evidence, really, as to why it was put in.

KIRBY J: Well, one would infer that it is put there in order to show what a nice block of land this is. I mean, I keep thinking what would have happened if, instead of spending the money on this litigation, they had kept and developed this block of land, how much it would be worth now?

MR FOSTER: I think Mr Butcher, as I want to develop later if it becomes necessary - - -

KIRBY J: The northern aspect?

MR FOSTER: - - - certainly was thinking that. He kept his options open when he found out what he thought was the true position.

KIRBY J: Anyway, that is water under the bridge or under the swimming pool.

McHUGH J: That is why it is necessary to go to the grounds of appeal.

MR FOSTER: I am going to, your Honour.

McHUGH J: There was a time when counsel addressed the whole of their arguments in terms of the grounds of appeal. Counsel would say, “I am now moving on to ground 23”, and you would get an argument on ground 23. The same with pleadings of first instance. Nobody ever seems to do that anymore. Cases are run without regard to the pleadings, nobody ever seeks an amendment to the pleadings.

KIRBY J: We have to give you time. You have started with the pleadings, you have 700 pages in between and you ultimately get to the grounds of appeal.

MR FOSTER: Your Honour, I was not intending to go to all of those and I will move to the grounds of appeal but, your Honour Justice McHugh, it is terribly important in considering this matter, including the matters raised on whether or not we made a representation as alleged and put to this Court, to consider what the nature of this title boundary was and how one determines it.

It is part of the context, as your Honour has been putting to my learned friend. It is not just a question of looking at narrowly the words in the brochure or what is in the brochure, but one has to look at the circumstances in which that brochure was distributed and it is part of that. I am going to go very quickly to what Mr Ellicott has been putting but the starting point, logically, is the pleading, and that is what I am doing, your Honour. Could I make these submissions about it. There is no pleaded allegation that the edge of the pool closest to the Pittwater was represented to be any particular distance from the water boundary of the freehold.

KIRBY J: Yes, but you say there is no pleading to this.

MR FOSTER: And no argument and no case put on that basis. In other words, they are not saying, “You told us it was X metres from the water”.

KIRBY J: But on the face of the brochure it gives an idea of what is presented.

MR FOSTER: All it does is suggest - - -

KIRBY J: Was the brochure annexed to the pleading?

MR FOSTER: Yes. All we say that one can get out of the brochure, assuming we represented anything at all, is that we told them that the pool was on the freehold.

KIRBY J: Nicely, neatly, squarely within the freehold, plenty of room to move.

MR FOSTER: We say that it was. The second point is that there is no pleaded allegation that Lachlan Elder represented, by adopting what Mr Gillmer said or by silence when he said something on 14 February, that the appellants’ stated plans to relocate the pool were feasible. There was no pleaded or run case that the representation was to the effect that the title, as it were, was clear and there could be no argument about it. There was no case put at all that we represented that the pool could be relocated in the fashion outlined in the evidence without difficulty. None of those things were cases put below. The simple case was, “You represented that the pool was on the freehold and it was not”.

So that I can move away from the pleading quickly, in paragraph 22 the reliance is pleaded. There are some facts described as “but for” facts in paragraph 23. They are on pages 4 and 5 of the pleading. Then the plaintiffs moved on to what they called the second contravention concerning the Calvert Parade property and then damages are pleaded in paragraph 38. They are said to arise from both contraventions. There was no discrimination between the two below. That is one of the many problems with this Court attempting to deal with damages, which I would want to say something about, if I need to, in due course.

But your Honours know, I think, that the second contravention, the one that was based upon the proposition that the opinions as to value given by the agents in respect of the Calvert Parade property were misleading or deceptive, that case was dismissed below and there is no leave granted in respect of that, so your Honours do not have to worry about that aspect.

McHUGH J: I am sorry to keep coming back to this, but I have to write a judgment and at the moment I think I am taking the view that you have abandoned the Court of Appeal because there are five grounds set out in the Court of Appeal. That is what you have got to face up to. If Mr Ellicott makes good any of those, he wins on the appeal, unless you can establish your notice of contention. Nothing you have said so far has got anywhere near dealing with those five grounds, has not remotely gone on the wicket. If you look at them:

1. The Full Federal Court decision . . . was distinguishable.

You do not have to take it in his order.

2. The agent made no representation as to the accuracy of the diagram . . .

3. The question as to whether or not the agent made a representation . . . could be tested by supposing . . .

4. There was no good reason why the agent intended to represent that the diagram was in fact accurate . . .

5. There was no good reason why the recipients would think that the agent was making any such representation.

If he does not make those good, he fails.

MR FOSTER: I agree, your Honour.

McHUGH J: Well he has got to make at least one of those good, but you will not deal with them.

MR FOSTER: I will, your Honour, but what I wanted to address first, given the time constraints on the Court and given the fact, as we submit, it is plain beyond argument that he did not prove falsity, that the whole issue of the appeal is a complete waste of time.

McHUGH J: But that goes to your notice of contention.

MR FOSTER: It certainly does.

McHUGH J: We have told you that we want to hear you on the appeal.

MR FOSTER: I am going to deal with it, your Honour. Your Honour has our submissions on the appeal. The first submission we would want to take up is this, that one does not need to break down what Justice Handley did into the various sub-issues and separate steps as my learned friend has. It is true that his Honour mentioned the word ‘test’ in the course of dealing with the matter in paragraph 47, but the reality was, what his Honour was doing was assessing exactly what it was that the agent represented in the circumstances of the case when he handed over the brochure.

In our submission, what he represented was nothing more nor less than what the reasoning in Argy suggests he represented, which is that he has reproduced accurately by way of a photocopy as part of the brochure a surveyor’s plan and that he never ventured into the area of vouching for the accuracy of that plan.

KIRBY J: But does not the brochure, on its face, vouch the accuracy, timeliness, up-to-dateness, correctness, relevance of the plan, otherwise why produce it. That is what an ordinary layperson would think when they are going to buy a piece of land. “Well, here are the experts. They have this tiny little disclaimer which I have not noticed, but they have put this sketch in it, it is there for a purpose, it is making a representation.”

MR FOSTER: Can I commence the argument in this way. First of all, your Honour, no, that is not what a person would think, in our submission, but may I commence the argument in this way. His Honour, the Chief Justice, asked my learned friend on a number of occasions, as we understood it, what could an agent do in these circumstances, that is a selling agent of real estate, to avoid liability.

KIRBY J: The answer the Act seems to give back is in material matters that are important you have to be very careful.

MR FOSTER: That is accepted, your Honour. One answer is to say that they cannot say anything at all. That cannot be what was intended.

KIRBY J: That is putting it very low. The Act does not stoop so far.

MR FOSTER: No, but the real connector, we respectfully submit, is this, that when one focuses appropriately on the language of section 52 of the Trade Practices Act, one comes to see that what was said or, in this case, what was done in terms of handing over the written word has to be viewed in the light of the context in which it is being done and that the distinction, as it were perhaps, between the receptionist on the one hand and the agent himself on the other, in the example the Chief Justice raised with my learned friend, is, in the words of the Chief Justice, the role that each plays in the process. We would wish to put the following matters as matters which are facts and circumstances relevant to how this Court should view what the representation was, if any, when the agent handed over the brochure.

McHUGH J: That seems to me to be quite a critical question, Mr Foster. Nowhere either in the notice of appeal nor your notice of contention is that really formulated, is it, and the notice of appeal does not say what the true representation was and neither does your notice of contention and that seems to me to be quite critical.

MR FOSTER: My learned friend has his case which is that we represented that the pool was constructed on the freehold in the sense that we vouched for the accuracy of the diagram. That is his case and that is clear enough, we would have thought. Our case is we represented no such thing. The fact we may have represented something else is neither here nor there. That only assists in this Court’s understanding of what we did not represent so that it is all raised. The question is it needs to be developed with an argument and in addition to what we put in our written submission I wanted to put some matters which, in our submission, make it clear that this agent ought not to be found to have represented, as a fact for which he must be held responsible, that the pool was located within the freehold.

GLEESON CJ: If you are right when you say that from beginning to end this case was pleaded, conducted and decided as a case of misleading conduct by the making of a false representation, and if you are right when you say that from beginning to end this case was pleaded, conducted and decided on the basis that the false representation was that the swimming pool was constructed wholly on the freehold land, then the issue is whether or not, in providing information of the kind and in the circumstances contained in the brochure, your client was making a representation that the swimming pool was constructed wholly on the freehold land.

MR FOSTER: We would accept that.

GLEESON CJ: There are many, many people who in many, many different circumstances communicate information to other people and they do it with varying degrees of confidence and responsibility. Barristers, for example, communicate to the courts what their instructions are, but whether a barrister has misled the court by communicating to the court instructions that are incorrect might be another question.

MR FOSTER: It would be, your Honour.

GLEESON CJ: If you ask, what is the representation that a barrister makes to a judge when the barrister says, “On my instructions, my client has been off work for three years”, then the representation may be no more than that those are the instructions that the barrister has. It may be right or it may be wrong, but it is not a silly proposition.

MR FOSTER: Your Honour, that is really at the heart of the difference between what we submit is this case, on the one hand, and the John Glass Case, on the other. Not that we accept John Glass was correctly decided, but we do not have to - - -

McHUGH J: But it all depends on context.

MR FOSTER: It does, your Honour.

McHUGH J: If a parliamentarian gets up and says “My department has told me this”, the House would regard itself as misled if it was untrue. The Minister may not have intended to mislead, but, nevertheless, the House regards itself as misled. Section 52 is not concerned with intent. It is concerned with conduct that is misleading or likely to mislead. So the adjectival clause qualifies conduct, not anybody’s state of mind.

MR FOSTER: I accept what your Honour puts, except the example, with respect, may not be a good one. We accept that the section talks about conduct and engaging in conduct and the words are “misleading or deceptive”. It may occur in many different sets of circumstances, many different ways. That is one of the reasons why we put to the Court on the special leave application that, really, it is always a question of fact.

McHUGH J: I will tell you what is really worrying me about this case as a vehicle. I think there is a lot to be said for what you say and your analysis of it, but the courts below do not seem to have proceeded on that basis, in terms of determining what the representation was. Justice Austin seems to have found another type of representation, which you say does not reflect the way the case was run.

MR FOSTER: No, I said that in respect of the - - -

McHUGH J: What appears at paragraphs 145 and 146 of his judgment contains a qualification which does not seem to me to accord with the way you say the case was run.

MR FOSTER: I will come back to that, if I may, but may I just take up the point your Honour is raising. His Honour Justice Austin did find that we made no representation as to the truth or accuracy of the survey because for the reasons which we have outlined in our written submissions which was that an agent, not being someone ordinarily expected to be a surveyor or in a position to check a survey in circumstances where it is a property such as this, and the purchaser comes along, knowing he is going to retain a solicitor and in fact does do so, and where the contract deals with these sorts of matters, then the agent does not represent the accuracy of the survey at all. He simply says, à la Argy, that this is a copy of the survey which I have been given, nothing more nor less than that.

If it had been an inaccurate copy, he would have been guilty of misrepresentation as happened in Argy because what happened in Argy was when the 149 certificate was photocopied it was double-sided in its form and the photocopy that was created did not notice that and they missed one of the rear reverse-side pages. Now, his Honour did decide the case on precisely the basis I am putting. It is just that he may not have fully expanded upon the reasons as to why that was so in the way that we wish to.

KIRBY J: That is coming very close to, for what it is worth, just tossing in this piece of information, this survey, the photocopy of it, for what it is worth. That is not how most people would – I mean, it is quite a big investment for an ordinary person to buy a waterfront property, and it is therefore a very important decision for them, so it is worth a lot to get this sort of information accurate, and it happened to be important to these people because of their designs on their swimming pool.

MR FOSTER: That is a matter which we pray in aid to our position because we submit to your Honours that nobody would rely on the agent to provide this information.

GLEESON CJ: The person who seems to be missing from this litigation is Mr Hannagan.

MR FOSTER: Yes, they rely on a solicitor.

KIRBY J: Yes, but the problem is the practicalities are that it is a sale by auction, and we have to look at it in terms of the facts of this case, but we also have to look at it in the way in which these things operate in the generality, and in the generality at auction a person can get off the plane and come straight to it and look at this document and believe, “Well, that looks good and there is plenty of room for entertainment. It is very important for me to have a space for entertaining, and by the way I will switch the swimming pool and get rid of that” and is it not a correct principle in these circumstances the Court applying what seems to be the philosophy and principle of the Trade Practices Act will say, “You just have to be very careful with what you do.” If we say, “Don’t worry about it, any old thing counts”, that is a very bad message to send to real estate agents.

MR FOSTER: Your Honour is stating the matter at the two extremes, with respect, and - - -

KIRBY J: Yes, but I am merely answering your “anything goes” stream.

MR FOSTER: I am not putting “anything goes”. It is a question of fact.

GLEESON CJ: The point is that where it operates, section 52 does not require people to be careful. It requires people to be right.

MR FOSTER: Not to be misleading.

GLEESON CJ: Section 52 is not a prohibition on negligence?

MR FOSTER: No.

GLEESON CJ: If section 52 applies then it requires you to be right?

MR FOSTER: Yes.

KIRBY J: Well, careful to be right, and right is a problem for you because – subject to the notice of contention, you are wrong.

MR FOSTER: It is not. I understand your Honour, but may I develop this argument as to why, in our submission, the representation that was made was limited, as his Honour Justice Handley found in the Court of Appeal. We do not need, with respect to Justice Handley, to draw across from the general law principles and statements of principle. They, as this Court has said and other courts have said in many cases, may be of assistance but they do not determine the matter. We accept that.

In this particular case, his Honour prayed in aid the case of Dean v Allin which was a case somewhat like the Chief Justice was putting by way of example with the barrister, and there was nothing, in our respectful submission, wrong with doing that. His Honour did not say, “Because the common law does this, I must find this.” He simply took account of it in looking at section 52 and what we did.

Now, your Honours, the matters that we submit are matters which can be characterised as facts and circumstances which go to, as it were, qualify the extreme that Justice Kirby is putting to me in terms of we, in effect, guaranteed the accuracy of the survey are the following. The first point is that it was a sale by auction of a valuable residential waterfront property located on the Pittwater. It was not a development or a commercial property, nor was it a development site, although there is some evidence that the house may have needed to be refurbished – that does not matter. It was a straight-up sale of a private residence.

The second thing was that Lachlan Elder was, in fact, and was seen to be by the purchasers to be the selling agent, that is to say someone retained by the vendor to find a purchaser for the property. They were not, in fact, nor did they hold themselves out to be – and this is taking an extreme but I will do it – as surveyors. In particular, they were not holding themselves out as having some expertise or ordinary business activity which would have led the purchasers to think that they could do a survey or could check or verify a survey. They were merely selling agents.

Next, whether the pool was wholly within the freehold or only partly within the freehold and partly within the permissive occupancy, would not ordinarily have mattered, so we submit, and would not have been considered by Lachlan Elder when they prepared the brochure as being of any great significance.

KIRBY J: I wonder about that. I mean, you do not want to have your swimming pool halfway on property that does not belong to you.

MR FOSTER: It was approved. There was no problem with it being there.

HAYNE J: Yes, but the permissive occupancy was year to year, was it not? It would be a narrow swim, I think.

MR FOSTER: It might have been, but it was of long-standing duration.

KIRBY J: I know that, but we all know local government authorities can fall under all sorts of – democracy is a very uncomfortable thing. People can get in and believe, “Well, we have to change all this and make the waterfrontage available to all the people”.

MR FOSTER: It was approved whether it was on the permissive occupancy or not. So there was no way, in our respectful submission, that it could have been required to be demolished. The issue that arose was - - -

HAYNE J: Good luck for arguing that one.

GLEESON CJ: Yes.

HAYNE J: I wish you joy in arguing that.

MR FOSTER: Thank you, your Honour. I might move on.

GLEESON CJ: Yes.

MR FOSTER: The next point is that when the brochure was prepared and when it was handed over they, that is, the agent, did not know, nor could they have reasonably anticipated, of the pool relocation plans that the plaintiffs say they had. It was not, as my learned friend puts, a central or important part of the marketing of the property for the agent to highlight or to focus on the particular location of the pool. It was just one of the things that was depicted in the survey. One would not infer, with respect, that the survey was put there to highlight the position of the pool.

Next, there were no express statements in the brochure about the location of the pool. Next, it was obvious, and the purchasers knew and understood, that the diagram was a reduced photo reproduction of a surveyor’s plan. There was evidence to that effect and his Honour so found. Next, as understood by the purchasers, it was no part of the selling agent’s function to obtain such a plan, or to check it, or to have it checked by someone else. In particular, purchasers regularly and ordinarily rely on solicitors, and, if thought appropriate, on a surveyor retained by their solicitor or themselves, to check where boundaries are.

In this case, there was evidence to show that Mr Butcher and his wife retained a solicitor, Mr Zuur, sent him the contract for him to look at, that the survey, including the textual material, was part of the contract and disclosed in accordance with the statutory disclosure requirements.

Next, the plan, as a matter of fact, had been furnished to Lachlan Elder by the solicitor for the vendor – that is to say, the person who was preparing the contract and who included it in the contract – and the evidence was and the finding was that the solicitor for the vendor had obtained the plan from the vendor. So its provenance in terms of immediate past was clear, as far as the agent was concerned. Next, the evidence was and the findings were that the agent believed that the survey was accurate and had no information or reason to suspect otherwise. Your Honours, that is an encapsulation of why we submit that the agent did not, as it were, vouch for the accuracy of this survey.

GLEESON CJ: Well, that is the point, is it not, because, as it seems to me at the moment, whichever way you look at it, you could not conclude that the agent made the representation alleged in the pleading without at the same time concluding that the agent represented the accuracy of the survey plan. That is the question that the Court of Appeal had to decide, whether, on the facts of the case and in the circumstances and having regard to the contents of the brochure, the agent represented the accuracy of the survey plan.

MR FOSTER: That is the question they did decide. They said the agent did not represent that matter. Really, your Honours, it does come back to that. Indeed, that is the only representation, the evidence was, that the purchasers got out of the brochure, because what their case was was that the pool was constructed within the freehold and – perhaps in a slightly more refined fashion – that the water boundary was slightly northwards of the pool, so that if they wished to fill it in and build another pool on the side boundary they could do so. That was their case. In our submission, the “so that they could do that” was a matter which arose as a result of where they say the pool was represented to be.

McHUGH J: But in the whole case, taking into account the appeal and the notice of contention, there are really only two issues, are there not? First of all, one, this is raised by the appeal, whether the agents represented the accuracy of the survey plan whatever it was and, second, assuming against you that they did, was the survey plan accurate?

MR FOSTER: No, was the pool constructed on the freehold because what is said to - - -

KIRBY J: That is merely his Honour’s second question.

MR FOSTER: I am not sure it is.

KIRBY J: Was it accurate to the extent that it showed because that is the only matter that was said to have affected the appellant?

GLEESON CJ: Was it accurate to the extent that it conveyed the information that the pool was constructed on the freehold?

KIRBY J: And you won on the first point which, in my respectful view at the moment, is wobbly and the court then did not have to deal with the second point which - - -

MR FOSTER: No, it did, because of Mr Harkins.

KIRBY J: But not in your case.

MR FOSTER: I should make clear, I am instructed, because I have not seen a piece of paper I cannot take it any further than that, but on 10 June 1998 an order was made that these cases, the Harkins matter and the Lachlan Elder matter, be heard together and that evidence in one be evidence in the other. The Court of Appeal certainly and, in my submission, Justice Austin, decided the question of where the title boundary was according to the plan, if I can call it that, in both cases or put it another way, whatever was decided about where the boundary was was decided in both cases against my client and against Mr Harkins. It is that reasoning and that decision that we challenge on the notice of contention.

KIRBY J: I would go on to say that I think that may be a much more arguable point, but the question is where it is left as an evidentiary matter.

MR FOSTER: It is left with everybody having put their best foot forward. What really happened was, your Honour, without putting too fine a point on it, that the cases to some extent passed like ships in the night. The plaintiffs put a case that you can determine where the title boundary is, that is the water boundary, by measuring off the DP onto the ground and depicting that. We have always submitted that is wrong, that one has to determine where it is in fact, and so in the end, of course, Mr Bee’s survey insofar as it depicted what it purported to depict was not really challenged but, of course, the evidence of Mr Green and, indeed, the findings of his Honour that we have gone through in our written submissions make clear that the real question as we saw it, the question of where the actual mean high-water mark was, was never the subject of a finding because the plaintiffs never chose to try to prove that. They put all their eggs into the other basket.

KIRBY J: So it really comes down, does it not, to whether or not – and this is Justice McHugh’s question to you – you can hold the Court of Appeal judgment in its own terms? In your case, if you do, this Court does not have to get into the notice of contention issue.

MR FOSTER: Precisely.

KIRBY J: If you do not, then in fairness to you and maybe in fairness to Mr Ireland’s client, we do have to get into that.

MR FOSTER: That is it. The reason I started with the notice of contention and incurred the wrath of Justice McHugh was that it seemed to us to be very clear that Mr Ellicott could not and was not putting an argument against what we put in the notice of contention other than that it does not matter where the mean high-water mark is in fact. All that matters is that you do these measuring exercises and, once you do that, that is the end of the matter. We submit that is just wrong in principle.

Once this Court accepts that, then there is nothing to be said against what we have advanced in detail in the notice of contention because nothing is being advanced and it could not be. That is why I started with it because it seemed to us that that was a really – notwithstanding ordinarily it might come second in the reasonable analysis of the matter, the fact is it was a killer point, as your Honour put to Mr Ellicott earlier. He said I had not killed him yet, and I accept that. He is still here.

GLEESON CJ: He certainly is.

MR FOSTER: Your Honours, that is our argument on the appeal.

GLEESON CJ: All right, thank you.

MR FOSTER: I do not know whether I need to back up what I put in terms of what the findings were with the evidence with references.

KIRBY J: It is dangerous to say that to the Chief Justice.

MR FOSTER: I understand. I said it is the argument. I do not know whether in truth I need to put references and findings behind what I put to your Honours. It seemed to us that they were all matters we had either dealt with in the written submission or were absolutely clear.

GLEESON CJ: There is one matter I would like to hear from both you and Mr Ellicott on about section 52. The expression “assumption of responsibility” is dangerous because it carries a lot of baggage, but let me use it for convenience. Justice McHugh mentioned in argument the example of a parliamentarian who might be found to have misled Parliament because he said something that in good faith was incorrect. That may be because of the nature of the responsibility of a member of Parliament. I put the example of a lawyer who says something on instructions. Whether what a lawyer says on instructions involves misleading conduct might or might not depend on the nature of the responsibility attaching to the particular statement and the particular circumstances.

When it comes to considering whether a person who provides erroneous information has contravened section 52 of the Trade Practices Act, is it possible to consider that question or may it be necessary in some cases to consider that question by considering the nature of the responsibility which the law imposes or which a person undertakes?

MR FOSTER: If I understand your Honour’s question correctly, the answer to the question is yes. There may be, for example, as there was arguably in the John Glass Case, a holding out by the agent or the person passing on the information that he was in a position to vouch for or verify the information that was being passed on because of the nature of his ordinary business activities.

There may be, for example, in a prospectus case, a responsibility on a director arising from his duty as a director to check material that is included within a prospectus so that a person reading that document can ordinarily expect that the director has at least made appropriate inquiries of persons which he or she reasonably believes would be able to give him accurate information. That is really, in one sense, Justice McHugh’s example because the members of Parliament who hear what the ministers say, would ordinarily expect that not only is he parroting what he has been told, but that he has conducted some process or another of verification.

KIRBY J: It is more than that. As Justice McHugh points out, he accepts as a minister his obligation to be truthful to Parliament and to give relevant information.

MR FOSTER: Yes, but at the end of the day, if it is information he does not personally know of, in a way in which that expression is ordinarily used, he must to some extent rely on others and the assumption of responsibility may, in fact, go so far as to say, as it does by convention or used to by convention, “If I tell Parliament something that I do on the strength of my bureaucratic advice, then if it is false I must fall on my sword because the members of Parliament have assumed, when I conveyed the information, that I was vouching for its accuracy”.

GLEESON CJ: There seems to be a strong line of authority in the Federal Court, at least, that you cannot avoid the consequences of section 52 by a disclaimer of responsibility.

MR FOSTER: I should have said something about that. It is a little bit of a red herring in the sense that we accept - I will start at the beginning. What happened with those was that in the early days there were a lot of arguments put up that as a matter of law if there is a disclaimer it is effective. The Federal Court has set its face against that over and over again and simply said it cannot work as a matter of law to defect the claim. It may work in terms of the facts and circumstances relevant to the matter to defeat the claim because it may be, as we say here and I should have perhaps said it orally - we have said it in the submission, as we say here to qualify what it is that is being said.

McHUGH J: There were two classes of case, were there not? There were the cases where the disclaimer was in the contract which was subsequent to the conduct. Those cases never ever got off the ground.

MR FOSTER: Not as a matter of law.

McHUGH J: The more difficult case was when the disclaimer was part and parcel of whatever was said or done.

MR FOSTER: Yes, and, your Honours - - -

KIRBY J: If you apply that principle here, you need a microscope to see your disclaimer.

MR FOSTER: Not really, your Honour.

KIRBY J: It is not as broad and generous as some of the disclaimers that Mr Ellicott read to us.

MR FOSTER: It is much, much better than the one Mr Ellicott read for one simple reason. It says - - -

KIRBY J: I have to tell you I could not read it without my glasses.

MR FOSTER: Neither can I, your Honour, but that does not - - -

KIRBY J: All right, press on.

HAYNE J: It is called presbyopia for a reason.

MR FOSTER: Your Honour, to finish up, can I give your Honours a reference to an earlier case on the Trade Practices Act where the sorts of submissions I have been putting to your Honour were dealt with. It is called Abundant Earth Pty Ltd v R & C Products Pty Ltd [1985] FCA 40; (1985) 7 FCR 233. At 239 there are statements of principle along the lines of what I have just put to your Honours. It is a Bench of Justices Toohey, Morling and Beaumont. In this brochure it says:

All information contained herein is gathered from sources we believe to be reliable.

So that it is very, very clear, lest it be thought it be needed to be said, that the survey was not obtained by the agent.

KIRBY J: Yes, but Mr Ellicott says that bumps it up. You are assuring us of its reliability.

MR FOSTER: No. I know that is his submission, but we are making clear to those who read this brochure that we have not permission to survey, we have not done the survey and when we say the words “we believe [it] to be reliable”, we are saying no more than we have no reason to think that it is unreliable. That is the sensible way of reading it. If there is any doubt about that, the next sentence makes that clear:

we cannot guarantee it’s accuracy and interested persons should rely on their own enquiries.

Now, the John G. Glass one, unfortunately in that case, said that – to be precise I will take your Honours to it, but it was not a precise statement that all the information was obtained from someone else. Your Honours have that report. I think it is (1993) ATPR 41,356, and what it said was at the first column on 41,358:

“The information contained herein has been prepared with care by our Company or it has been supplied to us by apparently reliable sources. In either case –

and so on. Now, what actually happened in that case was that Mr Glass prepared what is called folio 3, and that is very clear from a close reading of the judgment, and he did not say anything about where that came from. It was on his company’s – perhaps I should not say that. I am not sure if it was on his company’s letterhead, but it was certainly not apparently on anybody else’s and he put it within the package that he was sending off to the purchaser.

GLEESON CJ: So a reader of the information would not know which of it had been prepared by John G Glass.

MR FOSTER: Precisely, and, for example, whether John G Glass had in fact measured the plans to come up with a net lettable area. The reader would not know that. In our submission, what the court did in that case was to simply say, well, this is not just a selling agent, this is someone who holds themselves out as, amongst other things, an investment consultant to institutional investors and to developers of major properties.

HAYNE J: The binding appears at 41,357 in the last three or four lines of the right-hand column. The letter was copied and bound in the obligatory glossy cover with “JOHN G GLASS” all over the front.

MR FOSTER: With this holding out of an expertise beyond that of a selling agent. A reader, as your Honour the Chief Justice put to me, would not know that that was not something not only that he was vouching for, but that he had not done himself, because all it required was to measure off the development plans that were then in play. The mistake was made when that measuring was done, because the building had not been built. It was simply a question of what would be available when it was built according to the development consent. That is why their Honours placed so much emphasis on those matters when they came to the heart of the matter, on 41-359. That is not this case. Not only is it very clear that this survey was done by somebody else and is a survey, but the purchasers understood it to be that.

Your Honours, we have mentioned Saints Gallery v Plummer [1988] FCA 213; (1988) 80 ALR 525. I do not want to take your Honours to it, but could I hand up a copy and give your Honours some references to it. It is an example, really, of what we would submit to your Honours is a sensible way of getting through these problems. It is a judgment of a Full Federal Court and could I simply give your Honours these references: page 526, between lines 27 and 31; 526, between lines 40 and 44; 527 to 528; 529, between lines 21 and 23; 529, between lines 43 and 47; 529, line 47, to 530, line 7; 530, lines 31 to 36; 530, lines 44 to 45; 530, line 51, to 531, line 5; and 531, line 39, to the end of the page.

I do not know if your Honours are familiar with that case, but it was a case where the Court took a very close look at the question of what it was that was being represented, having regard to who it was that was making the representation, who it was that was the audience, what the subject matter of it was and what their relative known, as it were, expertise was in relation to the subject matter. The Court was very careful not to lumber the representing party with responsibility beyond what was a sensible and reasonable scope. It is an example which we would rely upon. It is like so many of these cases, they really are questions of fact, but it is a helpful one.

GLEESON CJ: You have not mentioned the fact that you have concurrent findings of fact in your favour.

MR FOSTER: Yes, we do and we do rely upon that, of course. Your Honours, I have not gone chapter and verse into the findings and the references and so on that I mentioned in that argument I put to your Honours earlier, but I do not anticipate there is any dispute about it. It is a question of whether it is right or not in terms of an argument. If that is a convenient point to stop on this point, I will.

There is one very small procedural matter which I must mention. There was a cross-claim below by my client, Lachlan Elder, against Mr Ireland’s client, Mr Harkins, based upon agency principles and misleading and deceptive conduct to the effect that if we were held liable to the plaintiffs we should get a result over against Mr Harkins. The trial judge dismissed that cross-claim for the sole reason that we were not held liable. The Court of Appeal did likewise. We have not filed a notice of cross-appeal nor sought special leave to cross-appeal on that matter, but Mr Ireland and I have spoken about it and he agrees that if your Honours were to allow the appeal then it would be appropriate to set aside the order in the Court of Appeal dismissing that cross-claim and remit the cross-claim to the Supreme Court. We can file a cross-appeal if we need to, your Honours, but that agreement is there between us and seems to us to be a - - -

GLEESON CJ: If I may say so, you should file a notice of cross-appeal.

MR FOSTER: We will do that. May we have your Honours’ leave to do that?

GLEESON CJ: Yes, you have that.

MR FOSTER: It will simply seek a remitter. We will do that, too.

GLEESON CJ: Thank you. Yes, Mr Ellicott.

MR ELLICOTT: Your Honour the Chief Justice raised an issue about section 52. Whether or not a person has reached it can be answered by the question, is it necessary to consider the nature of the responsibility which a person has? I suppose it is true to say that if a barrister says, “My instructions are so and so”, in fact the court is misled.

GLEESON CJ: Yes, whether by conversation I might - - -

MR ELLICOTT: Whether it is what you might call professional misconduct may be another matter.

GLEESON CJ: Well, in ordinary conversation, I might say to you, “I am sorry I have misled you”, when I have made a slip or an unintentional error, but I would not necessarily admit in those circumstances that I had engaged in misleading conduct in contravention of a statute. It might depend, once again, on the circumstances.

MR ELLICOTT: It sometimes depends on the responsibility the person has. There is no doubt that a Minister responsible for a particular department might answer a question by reference to facts that have been supplied to him by his department. It may be that the fact that it came from some person in the department may appear in his answer. On the other hand, it may not. But, whichever appears, the Minister would be very quick to go back into the House immediately he or she learns that what has been said is untrue. That is because of the responsibility that the Minister has. Indeed, it can lead him into great trouble if he does not do it, so it may be motivated by self-protection.

So far as an estate agent is concerned, or perhaps in other cases, I would submit that it very much depends on the circumstances. If that question was asked as being a necessary part of every application of section 52, it would lead to error.

GLEESON CJ: It may be a material circumstance.

MR ELLICOTT: It may be a material circumstance, but only one of a number of circumstances. In the ultimate the question is, is the conduct misleading or deceptive or likely to mislead or deceive? Your Honour said the question here was, did the agent vouch for the accuracy? Again, we would submit, with respect, although that is a way of putting it, if it becomes too prominent a part of one’s thinking process, it may take you away from the real question, which is was the conduct misleading or deceptive?

GLEESON CJ: The conduct alleged being the making of a false representation. That then means that the question is, is it not, did the agent represent that the survey was accurate?

MR ELLICOTT: It has to be borne in mind in reading this pleading that misrepresentation was a separate ground and a pleading should be given some degree of lenience.

GLEESON CJ: Paragraph 21 was the allegation of contravention of section 52 and it relates back to paragraph 17.

MR ELLICOTT: Yes, the representation - - -

GLEESON CJ: I do not think that we are now concerned, are we – correct me if I am wrong – with paragraphs 18 and 19?

MR ELLICOTT: No, we are concerned with 16 and 17.

GLEESON CJ: Well, we are concerned primarily with 21, which is the allegation of the contravention of section 52. That takes us back to the representation at paragraph 17.

MR ELLICOTT: Yes, I agree with that, but, again, I submit that it would be wrong having regard to what has happened below to regard the issue as other than “Was the conduct misleading and deceptive?” and “What was the conduct?” The conduct can be put in terms of a representation. You can state it that way, but there may be other ways of stating it as long as the essence of it is that this person, the agent, through this document was saying that the pool was within the curtilage of the land.

My friend indicated a number of matters that he relied on. Some of those were answered very quickly by your Honours. Some of them are circumstances. I thought my friend said – and I know it was not a particular matter to highlight the position of the pool. Sorry to go back to the little inset photo, but it is there, it shows the position of the pool, and that photograph is very relevant to the survey.

My friend’s argument seemed to be reducing it to what Justice Handley said, namely, that you imagine that this agent is really, in substance, handing a survey to my client and saying, “Here’s a survey. It’s given to me by the solicitors. You’d understand that I didn’t prepare it”, et cetera. Now, that is far removed from the real facts, and I think I have already addressed that. There is no sense in which this case is in the same order as Argy, because Argy was the handing out by the agent of a contract. It is like handing out the survey. To hand that document out is not to hand out a survey.

My friend made a number of comments, which I hesitate to deal with at this stage, about his notice of contention, but I did just want to say this. To some extent, it arises out of my reference to the judgment of Justice Heydon in Fliegner’s Case, that is, that one can search the record of the judgments, but, if it got down to this point, that is, that there had to be evidence to establish that the representation was incorrect – that is to say, to show that the pool did not lie within the curtilage of the land, as I have put it – then the plaintiff, my clients, satisfied that by producing the certificate of title and the DP and the survey by Mr Bee. That satisfied that. Now, if they wanted to say something else, it was up to them to show that the mean high-water mark was indeed such that the pool was within the curtilage of the land.

GLEESON CJ: If it comes to the point, the notice of contention might depend on a question about onus of proof.

MR ELLICOTT: I am saying that maybe in the long run there is some issue about onus of proof, but I am not conceding that. I just wanted to draw that to the Court’s attention, but to say, in support of our clients, that they have established the situation, and one can search the judgments, one can find some documents that might suggest it was somewhere else, but there is no evidence that in itself establishes that the mean high-water mark was otherwise than across the centre of the pool.

KIRBY J: Is your contention, so that I understand it, that as the evidence was left, you contend that the evidence showed that the mean high-water mark went through the pool and that if the respondent wished to displace that, the evidentiary burden of doing so rested on the respondent?

MR ELLICOTT: Yes, we are driven to that argument, but we have arguments obviously before that which say that it was enough to say that the conduct was misleading or deceptive in the circumstances of this case, that they represented that this pool was clearly within the curtilage of the land and on no basis could that be substantiated from the point of view of a purchaser going to an auction at an early date if the purchaser had to rely on its own inquiries and go away and get a survey to establish where the mean high-water mark was.

KIRBY J: That seems to highlight the difference between where the mean high-water mark runs and proving it, at a certain point.

MR ELLICOTT: Yes. On one view of what the misleading conduct was, it could be a matter of proving where it was. If the title is tendered and it establishes that it is at a particular point through the pool, so far as the plaintiff is concerned, it has discharged its onus and that - - -

KIRBY J: Is there a specific finding on the basis of the title as to where the - - -

MR ELLICOTT: Yes.

KIRBY J: You say that is enough to lift you up into the breach of the Act, that if there is an evidentiary matter - - -

MR ELLICOTT: Yes.

HAYNE J: Where is this finding? What paragraph?

MR ELLICOTT: I am talking about the title. I did not think this was in issue. So far as the title is concerned, it is clear that Mr Bee, the surveyor, surveyed the land, took the measurements at the side – and I understand what your Honour put to me – and ended up showing that if you joined those lines up where they ended on the side boundaries, the line would go through the centre of the pool.

KIRBY J: If you have any findings that support that proposition I would like to have reference, not necessarily now, but - - -

HAYNE J: Paragraph 80 is the high point, is it not?

MR ELLICOTT: Paragraph 125:

I have found that Mr Hannigan’s report was inaccurate in showing the mean high water mark at a position beyond the swimming pool. The correct position of the mean high water mark in a survey identification report for lot 14 is the position shown in Mr Bee’s report, in which the mean high water mark is depicted as traversing the pool. Consequently, by making available to the plaintiffs’ solicitor a draft contract annexing Mr Hannigan’s report, Mr Harkins misrepresented the location of the mean high water mark in relation to the pool.

That is one, I think there are others.

HAYNE J: Paragraph 80, I think.

MR ELLICOTT: Your Honour likes paragraph 80.

HAYNE J: No, it is not a question of liking, Mr Ellicott, but I do want to be referred to the whole of the judgment.

MR ELLICOTT: Yes, I know, your Honour. There was very little, if any, disagreement between the surveyors. What emerges from their combined evidence is that the documentary mean high-water mark by title passes through the swimming pool, but there are good grounds for arguing that the mean high-water mark should now be located in a different position beyond the pool. Now, that is as far as it went. It does not put it anywhere. It is not a conclusive finding.

KIRBY J: There is a tension between those two paragraphs, is there not?

MR ELLICOTT: Yes, there is a tension, but the tension is only to say that there is some evidence that suggests otherwise, but so far as proof is concerned, if you are looking at the question of onus, as I suggest Justice Heydon was in that case, then the title established it. It is interesting to note and important to note that at page 842, the Court of Appeal said this at paragraph 27:

A Mr Souter surveyed the property in November 1997, probably at the request of Mrs Hayes who purchased the property from the vendor when it was resold. His report (473) located the title boundary 17.4 metres from the water front on one side and 17.8 metres on the other, bisecting the pool.

So here is another survey from a different point.

The area of reclaimed land was said to be 248m². The Department adopted this survey which became the basis for a new permissive occupancy granted to Mrs Hayes (485-6).

That is after the Butcher contract. So, you know, where did they get to? But I do not want to get into the argument.

KIRBY J: Paragraph 125 begins, “I have found that Mr Hannagan’s report was inaccurate”. Where is that finding? I think that is paragraph 82.

MR ELLICOTT: Paragraph 82:

It is misleading, regardless of whether there was “ambiguous” or even very strong evidence to support a contention that the mean high water mark by title should be changed.

KIRBY J: Query whether that confuses the evidence of title or the title. It really has not been thought out or solved in the primary judge’s decision or in the Court of Appeal.

MR ELLICOTT: I would submit that is clear:

It incorrectly depicts the relationship between the swimming pool and the mean high water mark by title.

He is saying, here is the title deed. He may not have a proposition in there that encompasses what I am putting to the Court, but it does not matter, we would submit. Your Honours are being asked to go into this question and I am simply putting to you a reason why your Honours may think it is concluded in our favour another way, if they cannot point to some finding that the mean high-water mark is somewhere else. I think that is all I wanted to put to your Honours.

GLEESON CJ: Thank you, Mr Ellicott.

MR FOSTER: May I just put one submission? I had understood I was not to go into the notice of contention at this point.

MR ELLICOTT: Well, you did.

MR FOSTER: I had understood that, and that it was a matter that was to be dealt with if and when it was necessary, and I am not complaining about my learned friend doing it, but I do not wish to be put in a position if it is thought that I am being put in the position that I am not allowed to develop an argument about it, and I understood from the Chief Justice that was the position. Your Honour, that includes my questions of causation relating to the damages claimed, because all the damages claimed relate to the consequences of selling the other property.

GLEESON CJ: Yes, we understand.

MR FOSTER: Thank you, your Honour.

MR ELLICOTT: Your Honours, could I hand up three pages? They are 36, 37 and 377 in the transcript which are referred to in our submissions, but are not included in the appeal book.

GLEESON CJ: Thank you, Mr Ellicott. We will reserve our decision in relation to the issues argued in the appellants’ appeal today. In the event that it becomes necessary to do so, we will relist the matter at a future date for argument on the respondent’s notice of contention and, if appropriate, the disposition of Mr Harkins’ notice of motion.

AT 4.23 PM THE MATTER WAS ADJOURNED