An interesting decison from the NSWCA on the question of misrepresentation and deceit: Wood v Balfour [2011] NSWCA 382 (9 Dec 2011) http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=156063 . Can a purchaser sue for damages in deceit where the house which they have bought is riddled with termites, and it is clear that some previous termite damage has been concealed by the vendor? The court upholds the trial judge's decision not to award damages. In the end the main issue is whether the vendor (Mr Balfour) behaved dishonestly, and the court holds that he did not- it had not been shown, at any rate, that he was conscious of the concealed damage when selling the house (and the covering up had been done some time before the sale.) 

There is an interesting difference of opinion within the Court as to whether a "representation" should be held to have been made. Macfarlan JA at [50] holds that "the making available of a property for inspection, coupled with silence as to the existence of any latent defects, gives rise to a representation that the vendor has not knowingly concealed any significant defects in quality of the property that would otherwise be patent". The two other members of the Court of Appeal, however, favour the view put forward by Giles JA that there is no need to create a representation, and that there is deceit simply by virtue of the fraudulent concealment: [7] "The direct route to a remedy is that there is fraudulent conduct by the vendor in not disclosing the defect and the purchaser would not have bought, or would have bought for less, had the defect been disclosed." 

Of course, the real reason I am drawing it to your attention is that we can add it to the list of "nominatively determined" cases where the title tells you about the facts! :)

Regards

Neil