Avoiding responsibility for misleading brochures – Is it simply a matter of disclaimer?

Christensen, Sharon A., Duncan, William D., & Stickley, Amanda P. (2008) Avoiding responsibility for misleading brochures – Is it simply a matter of disclaimer? Australian Property Law Journal, 16(1), pp. 24-50.

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As the length and factual complexity of judgments demonstrate, it is often notoriously difficult to pinpoint liability for misleading or deceptive conduct in the marketing of real estate. The marketing of real estate in modern practice is much more than just the seller and the real estate agent. It is common for a number of parties to be involved in the marketing process, adding to the complexity of the issue of liability. This article explores the issue of liability for misleading marketing information communicated to a buyer through the use of brochures commonly prepared and utilised by real estate agents. It identifies circumstances where the direct liability of the real estate agent may be sheeted home not only to a seller, but also the advertising agency who prepared the brochure and third parties who, by means of the brochure, endorse the property being sold. This review of the law occurs in the era after the High Court decision of Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 where the marketing agent escaped liability, perhaps somewhat surprisingly, after the High Court took into account the nature of the transaction, the sophistication of the buyers, the lack of sophistication of the real estate agents and the effect of a disclaimer. An analysis of cases preceding and following Butcher reveals that while the legal principles are consistently stated, the application of these principles is ad hoc and depends largely upon the significance attached to certain aspects of the facts in each case. The inclusion of a disclaimer in a marketing brochure is only one of the factors a court may take into account when considering the misleading nature of a brochure. It is clearly demonstrated by the cases that a disclaimer is not the simple panacea considered by many real estate agents or vendors for avoiding liability for what is otherwise misleading information.

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ID Code: 15011
Item Type: Journal Article
Refereed: Yes
Keywords: Brochures, Misleading conduct, Property Contracts, Disclaimers, Accessorial liability, Consumer Protection, Disclaimer of Liablity, Sale of Land
ISSN: 1038-5959
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Commercial and Contract Law (180105)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Property Law (excl. Intellectual Property Law) (180124)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Law and Justice Research Centre
Current > Schools > School of Law
Copyright Owner: Copyright 2008 Lexis/Nexis Butterworths and (The authors)
Deposited On: 03 Oct 2008 00:00
Last Modified: 29 Feb 2012 13:45

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