Can a real estate agent be liable for misleading and deceptive conduct by \"tundra Havel-Ramp, Lawyer | IIH' 2.4.. 11.118 In the recent case of W NSWSC 164? the Supreme Court of NEW reviewed the Issues that can arise when a purchaser seeks to sue a real estate agent For misleading and deceptive oonduct pursuant to section 18 of the Australian Qnsumer gw. Facts The property {int 4} was a battle axe shaped property located in Eieilevue Hill. The driveway leading to the rear of the property carried rights of the carriageway In favour of other lot owners. The driveway was over 3' metres in width leaving room on either side for the residents to park. From Still-ii, the owner of lot 4 would use the eastern side of the driveway as their private parking space and subsequendy Installed a private parking sign. In the course of the sale of the property, the selling agent represented [both orally and in marketing material} that the property subject to the sale included \"private off street and driveway parking". The private parking sign was aiso present at the time the purchaser inspected the property. It Is notable that there was little on-street parking on the street on which the property was located. Mr i-lyder reviewed the contract for a sale with a solicitor pnor to end-hanging and the rights of carriageway over the driveway were explained to him. However, he did not investigate further as to his ability or right to park in the driveway. Mrs Hyder entered into the contract to purchase the property for $9.4 million. Issues arose between the Hyders and a neighbour after settlement when the neighbours' contractors began parking on the eastern side of the driveway. Lot 6 Cabana Lot 4 Fool Lot S Single storey Porch Two storey brick house Courtyard Garage Than Parking Lot S Lot 2 Garden bed Aren subject toright Gloabgulla RoadDecision The court decided that the advertising by the agent was misleading and deceptive for the purposes of the Australian Consumer Law as the parking was not private as represented, but was subject to a right of way in favour of the other residents. The court rejected the argument of the agent that the descriptions were opinions of the agent as the right of way was a legal fact not disclosed by the agent. However, the court held that the element of \"causation" was not established. The key question to consider was whether the purchaser would have proceeded with the purchase If the misrepresentations by the agent had not been made. The court decided this In the affirmative. IWhile the parking was a factor in the decision to purchase, it was not essential. 1i'lul'hen questioned as to whyI the Hyders had paid $4DD,[H]I}.[H] over the valued prise, Mr Hyder responded that his wife had fallen In love with the property. The court held that the reason why the property was purchased was due to \"Mrs Hyder's emotional reaction\" which was \"derived fmm features such as its aspect and its potential as a family home, rather than the number of parking spaces". The agent had therefore not caused any loss to the purchaser. In relation to the issue of whether the owners of lot 4 had a greater right to park in the driveway, the court held that there was no absolute right to park there at any and at all times. The purpose of the right of way was to give the three lot owners equivalent rights over the whole area. Conclusion There are important lessons for both real estate agents and purd'iasers to draw from this case. Firstly, real estate agents should ensure that they are aocurate in their description of parking rights. Howelirer,r purchasers should also undertake due diligence when entering into oontracts to purchase a property. The Hyders should have made further enquiries as to their rights to park on the driveway before exchange of contracts. The oourt described that If the test of causation had been met, the purchasers were still required to take reasonable care of their own Interests whici'i they.r Failed to do and so the court would have reduoed their damag {if ordered] by 233. END (IF ARTICLE