Australian Mortgage v Baclon
[2001] NSWSC 774
•5 September 2001
CITATION: Australian Mortgage v Baclon [2001] NSWSC 774 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 1458/01 HEARING DATE(S): 18, 19, 20, 25 July, 7, 23 & 30 August 2001 JUDGMENT DATE:
5 September 2001PARTIES :
Australian Mortgage and Properties Pty Limited (P1, C-D1 on CC1, C-D1 on CC2)
Kellie Howard (P2, C-D2 on CC1, C-D2 on CC2)
Baclon Pty Limited (D1, C-C on CC1, C-D4 on CC2)
Keith Noble (D2, C-D5 on CC2)
Roger Noble (D3, C-D6 on CC2))
Michael Howard (D4, C-D3 on CC1, C-D3 on CC2)
Eleanor Howard (D5, C-D4 on CC1, C-C on CC2)JUDGMENT OF: Austin J
COUNSEL : D L Warren (D1, D2, D3)
Mrs Eleanor Howard (in person)SOLICITORS: Spanko Soulos & Co (D1, D2, D3) CATCHWORDS: CONVEYANCING - whether request for documents regarding development approval a requisition - whether vendor ready and willing to complete when notice to complete given - whether time given for completion in notice a reasonable time - whether notice to complete and notice of termination were validly served - whether deed of licence could be terminated without notice LEGISLATION CITED: Conveyancing Act 1919 (NSW) ss 55(2A), 170 CASES CITED: Bahr v Nicolay (No 2) (1988) 164 CLR 604
Beswick v Beswick [1968] AC 58
Caleo Bros Pty Ltd v Lyons Bros (Aust) Pty Ltd [1980] NSW Conv R 55-004
Frankcombe v Foster Investments Pty Ltd [1978] 2 NSWLR 41
Peter Turnbull & Co Pty Ltd v Mundus Trading Co Australasia Pty Ltd (1953) 90 CLR 235
Revell v PC Developments Pty Ltd (1990) NSW ConvR 55-527
White v Bijou Mansions [1936] Ch 610DECISION: On first cross-claim, declarations as sought, judgment for possession, judgment against licensee and guarantor for occupation fee, leave to issue writ of possession forthwith; second cross-claim dismissed
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONAUSTIN J
WEDNESDAY 5 SEPTEMBER 2001
1458/01 AUSTRALIAN MORTGAGE AND PROPERTIES PTY LIMITED & 3 ORS V BACLON PTY LIMITED & 2 ORS
JUDGMENT
Introductory factsHIS HONOUR:
1 This is a dispute about the occupation and ownership of a property at 45 Streatfield Road, Bellevue Hill. By a contract for sale dated 20 September 2000, Baclon Pty Ltd (‘Baclon’) as vendor sold the property to Australian Mortgage and Properties Pty Ltd (‘Australian Mortgage’) as purchaser for $ 1,395,000. The deposit of $70,000 provided for in the contract was paid, in accordance with special condition 11, to the vendor. The contract provided that completion would take place on the 42nd day after the date of the contract, that is 1 November 2000.
2 When the purchaser did not complete at the required time, the vendor issued a notice to complete and, in circumstances I shall describe, subsequently issued a further notice to complete. When completion did not occur as stipulated in the second notice, the vendor purported to terminate the contract, on 22 December 2000.
4 On 15 February 2001 Australian Mortgage and others commenced proceedings seeking declaratory and other relief designed to establish that the purported termination of the contract for sale and deed of licence was ineffective, and seeking an order for specific performance. Thereafter the matter had a chequered history in a procedural sense, partly because Australian Mortgage and the Howard family were not legally represented, except for limited periods.3 On 20 September 2000 (the same day that contracts were exchanged) Baclon entered into a deed of licence with Australian Mortgage. Kellie Howard, the director and a shareholder of Australian Mortgage, guaranteed the company's obligations under the deed. The deed permitted Australian Mortgage to enter into possession and occupation of the property. It also permitted the guarantor, Kellie Howard, and two others of the Howard family, not named, to reside in the property. There were provisions about an occupation fee and termination of the licence granted pursuant to the deed, to which I shall refer later. By letter dated 25 December 2000, Baclon gave notice to Australian Mortgage that it required the company to vacate the premises, purporting to act under the termination provisions of the deed of licence. It re-entered into possession of the main part of property, and changed the locks, on 13 February 2001.
The parties
5 Australian Mortgage, the first plaintiff, is a company, the sole director of which is Kellie Howard. The shareholders are Kellie and Michael Howard.
6 Kellie and Michael Howard are the daughter and son of Eleanor Howard, the second cross-claimant. Kellie Howard was often present in court at the interlocutory stages, and on the last day of the hearing, after the evidence had closed and the parties were making submissions. But she did not at any time purport to appear or otherwise represent herself or Australian Mortgage. When Mrs Howard attempted to read Kellie's affidavit at the hearing, counsel for the defendants objected on the ground that Kellie was not available for cross-examination. I upheld that objection but indicated to Mrs Howard that she should apply for leave to read the affidavit if Kellie presented herself at court. No subsequent application was made.
7 Michael Howard occupied one of the flats at the rear of the property for some or all of the period between exchange of contracts in September 2000 and Baclon's re-entry into possession on 13 February 2001, but in February this year he left for Queensland. He has taken no part in the proceedings.
8 At all relevant times, Mrs Howard has been an undischarged bankrupt, disqualified as such from managing corporations by s 206B (3) of the Corporations Act 2001 (Cth) and its predecessor, the Corporations Law. Notwithstanding the limitations of her status, Mrs Howard has conducted most of the proceedings as an unrepresented litigant, attempting from time to time to represent the interests of Australian Mortgage and her children but, in the end, representing only her own interests. At several points before commencement of the proceedings and at various interlocutory hearings, Mrs Howard has evidently received some limited assistance from various lawyers, but the only lawyers who appeared for the Howard family in the proceedings were Mr Foley, who acted for Australian Mortgage and Kellie Howard for a brief period, and Mr Kramer, who acted for Mrs Howard on one interlocutory occasion.
9 I should say something about the credibility of Mrs Howard, who was the only person who gave evidence on behalf of any of the Howard family. I observed her at the bar table and in the witness box on quite a few occasions. She strikes me as, by nature, an emotional person. She is also inclined to speak illogically, with little discernible sense of what is relevant and irrelevant to her case. She seems to have a chronic propensity to misconstrue what she has observed or has been told. After careful consideration, I have concluded that her evidence was generally unreliable. I have therefore decided not to accept her evidence unless it has been externally corroborated in a clear manner or admitted by the other side.
11 Mr Rennie Spanko, the solicitor for the defendants, gave affidavit and oral evidence on their behalf. Mrs Howard has attacked his credibility and professional standards. However, I detected no proper ground for any such challenge. I formed the view that Mr Spanko was doing his best in the witness box to give accurate and direct evidence.10 Baclon, the cross-claimant on the first cross-claim, was the vendor of the property to Australian Mortgage. Keith Noble has had a lifetime in the real estate business and is a substantial property owner, according to his evidence. Roger Noble is his son. They are directors of Baclon. Mr Keith Noble gave oral evidence. He was certainly not an ideal witness. He became agitated during cross-examination by Mrs Howard, and seemed to exhibit a barely suppressed hostility to the proceedings as a whole. Nevertheless, I found no reason to disbelieve his evidence.
The amended summons and cross-claims
12 The initiating process, as at the time of final hearing of the proceedings in July 2001, was an amended summons filed on 30 May 2001. The plaintiffs were Australian Mortgage and Kellie Howard, and the defendants were Baclon, Keith and Roger Noble, Michael Howard and Eleanor Howard.
13 The amended summons claimed declarations to the effect that the contract for sale remained valid and subsisting; that the notices to complete the contract and the notice to terminate it were invalid and of no effect; that Baclon, by its servants or agents Keith and Roger Noble, breached the deed of licence by attempting to terminate it and interfering with the lawful occupation of the property by the plaintiffs and Eleanor and Michael Howard; and that the plaintiffs, Eleanor and Michael Howard were entitled to occupy and possess the property until the contract for sale was completed or otherwise validly terminated. The amended summons also sought a declaration that Baclon, and Keith and Roger Noble, engaged in misleading and deceptive conduct and unconscionable conduct, and that they wrongfully trespassed on the property, and that they wrongfully deceived the plaintiffs, and that the plaintiffs suffered loss and damage. The amended summons sought an order for the specific performance of the contract for sale, damages (including aggravated and exemplary damages), interest, and costs on an indemnity basis.
14 It will be noted that under the amended summons, only Australian Mortgage, the first plaintiff, sought relief by way of specific performance and that damages were sought only by the plaintiffs, Australian Mortgage and Kellie Howard, and not by Eleanor or Michael Howard.
15 The amended summons has been dismissed in the circumstances that I shall describe later. There are two cross-claims in the proceedings, and they are the subject of these reasons for judgment.
16 The first is a cross-claim by Baclon, as cross-claimant, brought against Australian Mortgage and Kellie, Michael and Eleanor Howard as cross-defendants. It seeks declarations that the contract for sale has been terminated, that the deposit of $70,000 paid under it has been forfeited to Baclon, and that the right of any of the cross-defendants to occupy the property under the deed of licence has been terminated. It seeks judgment for possession of the property. It also seeks judgment against Australian Mortgage and Kellie Howard for $20,800 by way of occupation fee alleged to be payable under the deed of licence.
18 The second cross-claim is poorly drafted and obscure. To the extent that it seeks declaratory relief and specific performance with respect to the contract for sale, it does not seek relief available to Mrs Howard as cross-claimant in her personal capacity. Central to it, however, appears to be a claim by Mrs Howard that she has added value to the property and is entitled to be compensated for doing so, and that she has in some fashion suffered damage as a result of actions by Baclon and Keith and Roger Noble, and apparently also actions by Australian Mortgage and Kellie Howard.17 The second cross-claim is brought by Eleanor Howard as cross-claimant. The cross defendants are Australian Mortgage, Kellie and Michael Howard, Baclon, and Keith and Roger Noble. On its face, the cross-claim does not appear to have been drafted with legal assistance. Its seeks a declaration that the contract for sale was ‘part-performed’ by Australian Mortgage and that the vendor failed to respond to requisitions made in order to complete finance requirements until December 2000. It seeks some form of order relating to alleged representations made by the vendor and its solicitor to the effect that their expedition of the conveyancing would not lead to any further moneys being due beyond the purchase price. It also seeks ‘declarations’, in the alternative, that the contract for sale is still on foot and that the vendor be required to complete without penalty to the purchaser, or that the vendor pay the purchaser $100,000, alleged to be the value added to the property by works done by the purchaser and its agents, ‘together with the sum of $150,000 being money spent and deposit released’. It also seeks a declaration that Mrs Howard has suffered damage and continues to do so as a result of the actions and conduct of ‘the Defendants and the first, second, fourth, fifth and sixth cross defendant’.
Interlocutory contests
19 The defendants made an application for expedition and the matter came before me in the Expedition List on 11 May 2001. It returned to me on 24, 29 and 30 May, 22 June and 6 July, for directions to prepare the case for final hearing, and to deal with interlocutory issues.
20 There was a hotly contested interlocutory hearing in May 2001, when Mrs Howard claimed that she had been denied access on fair terms to the property to regain her documents and chattels, and that she and her daughter were being harassed by Roger and Keith Noble, who were endeavouring to sell the property, and counsel for the defendants claimed that Mrs Howard had unlawfully resumed possession of the main house. The issues were addressed on 30 May 2001 by a series of undertakings given by Baclon, Roger Noble (and later Keith Noble) and Mrs Howard covering various issues - including undertakings to forestall any attempts by the defendants to resell the property or gain access to it; and undertakings as to Mrs Howard's residence in the flat at the rear of the property occupied by her daughter Kellie, and to facilitate arrangements for her to recover documents and chattels from the main premises. These undertakings have remained in place until the present time.
21 When the matter came before me for pre-trial directions on 6 July, Mrs Howard did not appear, although she arrived in court later in the day, saying that she had made a mistake about the hearing time. Because of persistent complaints in correspondence by Mrs Howard as to the whereabouts of the keys to the property, I made directions for the handing over of the keys to the Court, and I established a regime to permit access to the keys by application on very short notice. No such application was made until after the end of the final hearing.
23 On 30 May I set the matter down for expedited hearing on 18 and 19 July 2001. Subsequent attempts by Mrs Howard, to have the hearing dates vacated, were unsuccessful.22 Because of the proximity of the expedited hearing and the failure of any of the parties on the Howard side to submit or identify affidavits to be relied on at the hearing, I also made an order requiring them to obtain leave before filing further affidavits, and established arrangements for them to apply for leave on very short notice. No such application was made.
The hearing
24 The hearing proceeded on 18, 19, 20, and 25 July, and 7 August 2001. On 7 August the hearing was concluded, subject to leave granted to Mrs Howard to make further written submissions by no later than the following day. Judgment was reserved. I received further written submissions from Mrs Howard of 8 August 2001, which I have taken into account in preparing these reasons for judgment.
25 The hearing took a rather unusual course. The only appearances were on behalf of the defendants, and by Mrs Howard. As soon as the hearing began, Mrs Howard made a number of applications. I dealt with the applications as they were made, delivering ex tempore reasons for judgment in each case. I shall briefly summarise the applications, in order to explain the course of the hearing.
26 Mrs Howard applied for leave to represent Australian Mortgage as first plaintiff. She relied on a letter dated 15 February 2001 by Kellie Howard, which purported to authorise her to act on behalf of Australian Mortgage in respect of matters before the Court. The letter was expressed in general and unsatisfactory terms. Mrs Howard informed the Court that the company had instructed a solicitor, Mr Martin Churchill, to represent it at the hearing, but Mr Churchill had not arrived in Court. I adjourned the proceedings for several hours to permit both Mrs Howard and the defendants to make inquiries as to the whereabouts of Mr Churchill, in case some calamity had occurred which had prevented him from attending to represent his client, and also to permit Mrs Howard to contact her daughter and explain to her that as a director, her daughter could appear to represent the company, with some risk as to costs under Part 4 rule 4A of the Supreme Court Rules. When Mr Churchill could not be contacted, and Kellie Howard did not appear in the Court or otherwise apply to represent the company as its director, I rejected Mrs Howard's application to represent the company.
27 Mrs Howard also applied for an adjournment, essentially on the ground that Australian Mortgage had instructed Mr Churchill to appear for it at the hearing, but he had not presented himself in Court and it had not been possible to contact him. I rejected this application, partly on the ground that I doubted that Mr Churchill had ever been given or had accepted proper instructions to appear at the hearing, and partly because the matter had been specially fixed for hearing with ample notice to the company and Kellie Howard, and because the plaintiffs had filed no affidavit evidence after several directions that they do so.
28 Then counsel for the defendants made an application for dismissal of the amended summons for want of prosecution, inviting the Court to proceed to hear the cross-claims under Part 34 rule 5. After considering the matter overnight, I acceded to that application. I took into account that the plaintiffs had been aware that the case had been specially fixed for hearing, since about 30 May 2001, and had not sought to file affidavits pursuant to directions which I gave at various stages from 30 May to 6 July 2001.
29 Mrs Howard made another application for an adjournment on the second day of the hearing (19 July 2001), on the ground that she and her daughter had contacted Kim Bourke, a barrister, who said she would be prepared to act in the matter if she received instructions through a firm of solicitors. Mrs Howard said she had approached a solicitor, who had indicated that his firm would accept instructions to act, but the solicitor was overseas and would not be available until the following Wednesday (25 July, 2001). She sought to tender a document purporting to be minutes of a meeting of directors of Australian Mortgage held on 18 July 2001. The document recorded a resolution that advice be obtained from the Law Society in respect of the position of Mr Churchill, and subject to that advice the company make an application for adjournment for the purpose of either inquiring as to Mr Churchill's availability or seeking to appoint new solicitors to brief Ms Bourke. The resolution also stated that Mrs Howard was authorised to assist the company in the proceedings. According to Mrs Howard, Mr Churchill had informed her on the previous evening that he could not act because he would be required as a witness to give evidence on behalf of the first plaintiff, apparently in relation to matters that occurred at about the time of the making of the contract and the deed of licence which are the subject to the proceedings. No affidavit has been filed by Mr Churchill.
30 I ruled that there was no competent application for an adjournment before the Court, having regard to Part 4 rule 4A, and that even if the application were competent, I would not grant an adjournment. This was because I could have no confidence that the legal representation of the first plaintiff would be in any better position on the next occasion.
32 In my ex tempore reasons for judgment of 25 July 2001, after recounting the above facts, I concluded by saying:31 Another application for an adjournment was made by Mrs Howard on Wednesday 25 July 2001. This time she said that a ‘brief’ had been forwarded, evidently by her, to Mr John Barbouttis, a solicitor. She said that Mr Barbouttis had been overseas until that morning. She complained that she had not been able to obtain transcripts of the hearings on 18, 19 and 20 July, and gave evidence that she had made a number of phone calls without success. However, when I asked her whether she had filled out an order form for the transcript in the normal way, she said she had not. She said that Mr Churchill was to give evidence, and his evidence was not yet available, but she was not able to give any indication of any attempt by her to produce any affidavit evidence from him in accordance with my earlier directions. Finally, after submissions with respect to the application for adjournment had been made, Mrs Howard informed me that a photocopying company had misplaced some of her documents the day before. I invited her to specify the documents that had been misplaced, and arrange for counsel for the defendants to supply or lend copies to her. She obtained access to most of the documents in this way.
33 The hearing then proceeded to its conclusion, with Baclon and Roger and Keith Noble being represented by counsel, and Mrs Howard appearing on her own behalf.
‘Evidence has now been given in the hearing to the effect that Mrs Howard and her daughter have been in occupation of part of the subject property since a date in December last year without making any payment in respect of licence fee. The subject property has, in effect, been sterilised as an economic asset by virtue of these proceedings and the attitude taken by Mrs Howard on various interlocutory occasions. The interests of justice demand, therefore, that the hearing proceed on an expedited basis. I regard the present application as an attempt by Mrs Howard to prevent the expedited determination of the proceedings in order to perpetuate the advantage she has through occupying the premises without any current payment of any fee for doing so. I therefore deny the application.’
Communications after the conclusion of the hearing
34 The conclusion of the hearing on 8 August did not bring the process of applications to an end. On 16 August 2001 Mrs Howard sent a facsimile to my associate which said, ‘Notice of motion attached, please advise suitable time for hearing on or about Thursday 23 August 2001’. Enclosed were an unsigned and unfiled notice of motion and an unsworn affidavit. Since, at that time, I had reserved my judgment in the proceedings, I decided not to read the documents. Instead my associate wrote to Mrs Howard, with a copy to the defendants' solicitors, telling her that if she had any application to make, she should proceed through the Registry or to the Duty Judge in a proper fashion.
35 It appears that Mrs Howard did not receive my associate's letter until Thursday 23 August, but when she became aware of it, she made an ex parte application to Hamilton J as Duty Judge. After speaking to me, Hamilton J granted her leave to file her notice of motion and supporting affidavit, returnable before me on Thursday 30 August 2001, with abridgment of service. I read the materials at that stage.
36 The notice of motion seeks a variety of orders in 15 paragraphs. There is nothing to indicate that Mrs Howard took into account any legal advice in preparing it. It is possible to classify the prayers for relief into four categories.
37 First, some paragraphs seem designed to re-agitate the issues that have been traversed at the hearing (paragraphs 4, 8 and 13). It is inappropriate for any party (let alone Mrs Howard, who did not represent Australian Mortgage) to seek such relief after conclusion of the final hearing and while judgment is reserved.
38 Secondly, some paragraphs seek relief that is inappropriate, given that the final hearing has been completed but orders have not yet been made. Thus, paragraph 2 seeks an order that judgment be stayed, but the judgment has not yet been given. Paragraph 4 seeks, in part, an order for mediation or arbitration, inappropriate after the conclusion of the final hearing, in the absence of very special grounds. Paragraph 11 seeks an order that the Court refer this matter to the Attorney-General for investigation and possible prosecution with respect to aspects of the evidence of the defendants and Mr Spanko. Such an order would not be made prior to delivery of judgment, and then only if the judgment were to find that perjury has been committed. The present judgment does not do so. Paragraph 12 seeks an order that leave be granted to join Mr Spanko as a defendant in the proceedings. Unless there were very special circumstances, it is most unlikely that the Court would make such an order after the conclusion of the final hearing.
39 Thirdly, paragraph 3 seeks an order that no judgment or final order be made because the defendants have perjured themselves and time is required to have these matters investigated. This seems to me to amount to an application to re-open the evidence in order to demonstrate perjury by the other side's witnesses.
40 Fourthly, some paragraphs seem to be directed towards interlocutory circumstances: paragraph 5, which seeks an injunction to restrain the defendants from harassing Mrs Howard and from removing goods, money and documents from the property; paragraph 6, which seeks an order that Mrs Howard be granted unrestricted access to the property to assess her losses; paragraph 7, which seeks leave to issue subpoenas to support a contention of perjury in the evidence given at the hearing; paragraph 9, which seeks an order restraining harassment if an order for specific performance of the contract is obtained; and paragraph 10, which seeks a mandatory order for the return of specified items and money.
41 The prayers for relief in the first and second categories must fail, in my view, for the reasons that I have given. The questions remaining for consideration are whether I should grant leave to Mrs Howard to re-open her evidence, and whether I should adjust the existing interlocutory regime in light of what she now says. When the matter came before me on 30 August 2001, I invited Mrs Howard and counsel for the defendants to address those issues, and they did so. I reserved my judgment on the application, on the basis that I would deal with it in the course of the present judgment on the cross-claims.
42 The evidence in support of Mrs Howard's application is very thin. Much of her affidavit was ruled inadmissible. She says she has been locked out of the property for most of the period since 13 February 2001, when the defendants changed the locks, apart from short periods staying with her daughter in the flat at the rear of the premises. She says she has had no access to the premises other than supervised access on 12 June 2001 pursuant to the Court's orders, and that she has not had the opportunity to assess what items are missing from the property other than a list specifically referred to in the notice of motion, nor any opportunity to retrieve personal goods and files urgently required. She says that for some five months she has been homeless and has been denied access to documents which would have allowed her to make an application for discharge from bankruptcy.
43 She claims that Mr Keith Noble told her he cannot complete the contract with Australian Mortgage because an offer has been accepted ‘for $1.57m/$1.8m’, and that some of the consideration would be ‘under the table’ to avoid any appearance of ‘unfair enrichment’ by the defendants. She says that her daughter Kellie is under pressure to sign a release so that completion of this other sale can take place.
44 Mrs Howard's claims concerning goods and documents taken from the property, and denial of access to it, were addressed at interlocutory hearings, particularly the hearings on 30 May and 6 July 2001. The defendants by their counsel informed me on 30 May, and subsequently reiterated, that they were prepared to allow Mrs Howard to have access to the main premises in the company of their representative and a lawyer for Mrs Howard. Mrs Howard was in fact granted access to the premises on 12 June on that basis. She did not apply for access on any subsequent occasion until 30 August 2001, in circumstances described below. Her evidence in the affidavit of 23 August 2001 discloses nothing new on these matters. In my opinion it provides no basis for re-opening her evidence in the proceedings, nor for any adjustment to the interlocutory regime currently in place.
45 Her evidence that Mr Noble told her there is a new contract for sale of the property at a higher price does not, in my opinion, justify an order granting leave to her to re-open her case. Even if such an arrangement were proven, it would not bear on the issues for determination in the cross-claims, absent evidence that the purchaser had taken possession of the property or was a bona fide purchaser without notice of the alleged rights of Australian Mortgage.
46 I conclude, therefore, that there is no evidentiary foundation for Mrs Howard's application to re-open her evidence. As to the application to adjust the existing interlocutory regime, I think the simple answer is that I am about to make orders, on the basis of these reasons for judgment, to dispose of the matter on a final basis, and consequently to dissolve the interlocutory regime. There is no point adjusting the interlocutory regime at this stage.
47 Consequently, in my view, the application by notice of motion filed on 23 August 2001 should be denied.
48 On 30 August 2001 Mrs Howard made another application for access to the premises, this time in the company of police officers. I made orders, by consent, for supervised access to take place on 31 August 2001.
49 I wish to record one additional matter. On 22 August 2001 my associate received a facsimile directed to her from Kellie Howard. The facsimile was somewhat rambling and disconnected, but it sought legal assistance in circumstances where, according to Miss Howard, she has been excluded from stating her case as a plaintiff and as a director of Australian Mortgage, and her mother had taken great steps to have her excluded from doing so by telling her that she was not required to attend court at certain times. The facsimile referred to Miss Howard's application for an apprehended violence order against her mother, and said that her mother, Mr Noble and Mr Spanko had taken advantage of her medical condition.
50 I initially decided not to read the facsimile, and I asked the Principal Registrar of the Court to reply to the facsimile saying that if Miss Howard had any application to make, she should approach the Registry or the Duty Judge in proper manner. No such application has been made. However, when Hamilton J made Mrs Howard's notice of motion of 23 August 2001 returnable before me, I decided in consultation with his Honour that I should read the facsimile and draw the parties' attention to it at the hearing on 30 August. I did so, and invited submissions on the significance of the facsimile, if any.
51 After hearing those submissions, I decided that the best course was to take no further action with respect to Miss Howard's facsimile. I did so on the ground that her claim to have been excluded from the case was implausible, since she had attended some interlocutory hearings, and was present in court during submissions on 7 August without making any application to intervene. I took into account that she had been aware of the dates of the expedited hearing from the day I set the matter down for hearing, because she was represented on that day by Mr Foley.
53 I now turn to the facts in more detail, making findings on contested matters where appropriate.52 As to her medical condition, her facsimile attached a medical certificate dated 1 August 2001, evidently prepared in connection with the proceedings for an apprehended violence order, by a ‘psychiatrist in training’, who said that Miss Howard had received short-term treatment with an anti-depressant and that her mood had improved considerably, and that by the date of the letter she no longer required medication.
The contract of sale
54 The contract was dated 20 September 2000, and identified Baclon as vendor and Australian Mortgage as purchaser, for a purchase price of $1,395,000. The purchaser's address was stated to be ‘c/- 30 Taylor Street Darlinghurst Andrew Ashton - Accountant’. The completion date was the 42nd day after the contract date – that is, 1 November 2000. Where the contract provided for the name of the purchaser's solicitor, the words ‘acting for self’ appeared. The contract contained the printed clauses published by the Law Society of New South Wales and the Real Estate Institute of New South Wales, 2000 edition. In addition, there were typed special conditions.
55 Special condition 5 said that if either party was unable or unwilling to complete by the completion date the other party was entitled to serve a notice to complete making the time for completion essential. The notice to complete was required to give not less than 14 days notice and could nominate a specified hour of the last day as the time for completion. Special condition 6 stated that if the purchaser did not complete by the completion date, without default by the vendor, the purchaser was obliged to pay on completion an amount calculated as 12% interest on the balance of the purchase money, for the period from immediately after the completion date until the day on which the sale was completed.
56 The contract provided for a deposit of $70,000. Special condition 11 provided that the purchaser agreed to release the deposit on exchange direct to the vendor. A deposit of $70,000 was in fact paid and released to Baclon, which subsequently purported to forfeit the deposit in circumstances that I shall set out. Special Condition 7 was to the effect that if the vendor became entitled to forfeit the deposit, the purchaser would on demand pay a sum sufficient to bring the forfeitable deposit up to 10% of the purchase price. That has not occurred.
57 Although the amended summons and the second cross-claim have claimed a wide variety of orders, nowhere has any claim been expressly made for recovery of the deposit under s 55 (2A) of the Conveyancing Act 1919 (NSW), nor has any evidence been expressly directed to the exercise of the Court's discretion under that subsection. However, the second cross-claim seeks a declaration that the vendor pay to the purchaser a sum of $150,000 ‘being money spent and deposit released’. In case this is to be properly regarded as an invocation of s 55 (2A), I should note that on the evidence before me, there is an insufficient basis, in my opinion, for making an order under that subsection.
59 Special condition 12 was in the following terms:58 Special condition 9 stated that the purchaser intended to renovate the property, and provided that ‘she’ accepted the property and improvements in their present state and condition and would not be entitled to make any requisition in relation to any defects or want of repair. Special condition 10 stated that the vendor made no warranty or representation in relation to the furniture and chattels referred to on the front page of the contract, and was not responsible for breakage or breakdown. The first page of the contract referred to ‘the inclusions’.
‘The Purchaser acknowledges that she is aware that a Development Application for the building of a 4 bedroom 2 storey residence has been approved by the Council of the Municipality of Woollahra and annexed hereto and marked with the letter ‘B’ is the Development Application No 5/00 dated 11 July 2000. The Purchaser acknowledges and agrees that she will accept the property subject to the aforesaid approval and will make no requisition, objection, claim for compensation or rescind or terminate this Agreement in respect of the said approval or any matter contained in the said annexure.’
60 Clauses 5, 9, 15 and 20.6 of the printed clauses of the contract for sale are of some relevance. Clause 5 dealt with requisitions. It provided that requisitions that arose out of the contract or were general questions about the property or title could only be made by service within 21 days of the contract date. ‘Serve’ was defined in printed clause 1 to mean ‘serve in writing on the other party’. Clause 9 authorised the vendor to terminate the contract by serving a notice, if the purchaser had not complied with a notice under the contract in an essential respect. Clause 15 required the parties to complete by the completion date and if they did not, it empowered a party to serve a notice to complete if that party was otherwise entitled to do so. Clause 20.6 said that a document under or relating to the contract could be served by a party on the other party's solicitor, or by facsimile to the solicitor, or in the manner provided by s 170 of the Conveyancing Act 1919 (NSW). The document would be served at the earliest time of service, if it was served more than once.
61 The contract in evidence is the counterpart signed by the purchaser. The other counterpart, signed by Baclon, is not in evidence. However, I have no reason to doubt that contracts were properly exchanged on 20 September 2000.
63 There is no proper ground for saying, on the evidence, that the contract was unconscionable or procured by undue influence or breach of fiduciary duty, or that Baclon should have made sure that Kellie or Michael or Eleanor Howard, or all of them, received independent legal advice before the contract was signed. Nor, in my opinion, is there any ground for similar conclusions with respect to the deed of licence. It is true that Kellie Howard signed the deed of licence as a guarantor, but that fact alone does not lead to a requirement for independent legal advice.62 Attached to the counterpart signed by Australian Mortgage is a certificate by a solicitor, John Andrews, given under s 66W of the Conveyancing Act 1919 (NSW). The certificate was given with the intent that there was no cooling off period in relation to the contract. Mr Andrews, who said, in effect, that he was not connected with the vendors or their solicitor, certified that he explained the nature of the certificate and the effect of giving it, namely that there was no cooling off period in relation to the agreement. He stated that this explanation was given to ‘the beforementioned purchaser’, but there is no purchaser ‘beforementioned’ in the certificate and the purchaser is in fact a company. The certificate did not claim that Mr Andrews explained any other aspect of the contract to the purchaser or anyone associated with it.
The deed of licence
64 The deed of licence, dated 20 September 2000, was between Baclon as a licensor, Australian Mortgage as licensee and Kellie Howard as guarantor. By clause 1 Baclon agreed to permit Australian Mortgage to enter into possession and occupation of the property as from the date of exchange of contracts and prior to completion of the contract for sale. Clause 2 stated that only Kellie Howard and two others of the Howard family (not named) were permitted to reside in the property.
65 By clause 3, if completion was effected on or before 1 November 2000 as provided for in the contract for sale, no occupation fee was payable by the licensee. If, however, completion of the contract for sale was not effected or before 1 November 2000 through no fault of the licensor, then a licence fee of $200 per day was payable by the licensee to the licensor as from 1 November 2000 until completion or until the licensee ceased to occupy the property in case of rescission or termination. The occupation fee was to be independent of the purchase price in the contract for sale and was to be paid in cash on completion.
66 Clause 5 provided that the licensee accepted the property at its risk as from date mentioned in clause 1 (presumably the date of exchange of contracts, rather than 1 November 2000), and indemnified the licensor against any claim for loss by the licensee or its agents. Clause 6 provided that the licensor permitted the licensee to make repairs and alterations other than structural alterations.
68 Clause 10 was in the following terms:67 Clause 7 (in fact, the second clause 7) authorised the licensor to determine the licence by giving the licensee seven days notice in writing, if the licensee made default in any of its obligations under the deed of licence. Clause 9 stipulated that the deed of licence did not confer on the licensee any rights as tenant or create a relationship of landlord and tenant.
‘10. It is hereby further expressly agreed and declared by and between the parties hereto:-
(a) That in the event of the Contract [that is, the contract for sale of the property] being terminated or rescinded for any reason whatsoever or the Licensee becomes bankrupt or assigns his estate or enters into deed or arrangement for the benefit of creditors, or being a company goes into liquidation or is wound up then the Licensee acknowledges and agrees that he shall put the property into the possession of the Licensor in the same condition as it was at the commencement of this Agreement and that the Licensor may without notice or demand to or on the Licensee re-enter upon the Property, change locks, take possession thereof and eject any occupants and thereby determine the interest of the Licensee and remove all goods, effects, furniture and furnishings found on the Property and shall retain the same in storage for a period of one month and thereafter dispose sell or otherwise deal with same but without releasing the Licensee from any liability in respect of the breach or non-observance of any covenant or provision herein. The Licensee shall reimburse the Licensor and make good any damage of the Property by virtue of his occupation thereof.
69 Clause 15 is also relevant in the event of termination and re-entry by the licensor. It provided:
(b) That in the event of the Contract being terminated rescinded cancelled or annulled (or in the event of the Licensee being in default under this Agreement) then all moneys paid hereunder shall be forfeited to the Licensor.
(c) That the Licensee is merely a bare Licensee having only personal rights under this Agreement and having no estate or interest in the Property.’
‘15. The Licensee and the Guarantor acknowledge and agree that if the Licensor shall take possession of the Property that they thereby surrender all interest that they may have in the Property pursuant to this Licence Agreement and shall vacate the Property forthwith on demand by the Licensor and shall not seek to re-enter the Property or make any claim, or commence any legal proceedings for the recovery of possession or for any costs, expenses and damages.’
70 Clause 15 presents a difficulty of interpretation. It states that if the licensor takes possession, the licensee thereby surrenders its interest in the property and shall vacate the property forthwith on demand. The words that I have italicised suggest that the licensee might yield up possession by vacating the property at some time after the licensor has taken possession, and moreover, that the licensee's obligation to vacate depends upon a demand being made. In these respects clause 15 is at odds with clause 10, which (where the contract for sale has been terminated) permits the licensor without notice or demand to re-enter upon the property.
71 Counsel for Baclon has suggested a construction that would reconcile the two clauses. It is that clause 10 applies where the licensor chooses to adopt the self-help method of re-entry without a court order, a method that is available (relevantly) only when the contract for sale has been terminated. When the self-help method is available and is used, clause 10 makes it clear that re-entry is authorised without notice or demand. Clause 15, in contrast, refers to cases where the licensor takes possession through a court order for judgment for possession, in which case clause 15 requires that the licensee must vacate the premises when the licensor makes a demand after taking steps to obtain a judgment for possession. It seems to me, on balance, that this construction is correct, since clause 15 speaks of the licensor taking possession in general circumstances, whereas clause 10 is relevantly confined to the case where the contract for sale has been terminated.
72 If, however, this construction is not correct and clause 15, upon its proper construction, overrides clause 10 to require a demand for possession before possession is taken, that construction will not defeat Baclon in the present case. This is because, as I shall explain, Baclon made a demand for possession on Australian Mortgage, the licensee, in a letter by its solicitors, Spanko Soulos, dated 25 December 2000, and made a further demand for possession in four identical letters by Spanko Soulos dated 1 March 2001.
73 Clause 13 provided (to the extent relevant) that any notice required or authorised by the deed of licence to be served must be in writing and would be sufficiently served if delivered personally to the party to be served, or left at the address as shown in the agreement as the address of the party or such other address as may be notified from time to time.
75 The property at 45 Streatfield Road Bellevue Hill comprises a main residence and two self-contained flats at the rear of the building. After exchange of contracts, Mrs Howard moved into the main residence, Michael Howard moved into one of the flats and Kellie Howard moved into the other. Mrs Howard was excluded from the main residence, in circumstances that I shall describe, in February 2001, and Michael Howard moved out during that month, but Kellie Howard has remained in occupation of one of the flats at all relevant times.74 Paragraph D of the recitals said that ‘the Guarantor guarantees the due performance and observance by the Licensee of the covenants, agreements and obligations on the Licensee's part contained or implied in this Agreement’. Kellie Howard signed the deed of licence as a director of Australian Mortgage under the company's seal, and she also signed in her personal capacity. Given that she was described in the document as the guarantor, her signature in her personal capacity demonstrated an intention to be bound as guarantor. Paragraph D is in clear terms. In those circumstances, Kellie Howard undertook the liability of a guarantor or under the deed of licence. Notwithstanding that the guarantee obligation appeared in the recitals rather than in the operative clauses, it was an operative provision, in my opinion.
Events between 20 September and 1 November 2000
76 On 19 October 2000 Baclon's solicitors, Spanko Soulos & Co, wrote to Australian Mortgage care of Andrew Ashton, Accountant, at 30 Taylor Street Darlinghurst. The letter noted that the company had waived its right to issue requisitions under the contract for sale, and requested a stamped transfer for execution by the vendor, and a draft settlement sheet. The letter stated that the matter was due to complete on 2 November. Spanko Soulos wrote again on 31 October 2000 referring to their previous letter and giving notice that if the matter was not settled by 2 November, they had instructions to serve a notice to complete.
77 Spanko Soulos wrote to Australian Mortgage on 1 November 2000, this time addressing their letter to the secretary of the company at 45 Streatfield Road Bellevue Hill, marked to the attention of Mrs E Howard. They enclosed copies of their previous letters of 19 October and 31 October, apparently pursuant to a request by Mrs Howard, and asked her to deliver a transfer and settlement sheet and make arrangements for settlement upon receipt of the letter.
78 The letter of 1 November was evidently, in part, a response to a request by Mrs Howard that the vendors supply her with some documentation issued by Council regarding development approval. This is because it referred to Special Condition 12 of the contract and claimed that the contract was not subject to the vendor providing to the purchaser the development application duly stamped and approved by Council.
80 There is evidence that Australian Mortgage did engage a builder and that the builder required inspection of Council documents. The evidence is a letter from Pacific Constructions (NSW) Pty Ltd to Australian Mortgage, submitting a price for building work on the Streatfield Road property in the sum of $870,000, ‘subject to citing of original Development Application approval from Council dated July 2000’. It is worth noting that the letter is dated 20 November 2000, suggesting that the issue of access to Council documents did not arise much earlier than 1 November.79 This correspondence is consistent with Mr Spanko's oral evidence that the hearing, to the effect that Mrs Howard did not raise with him any issue with respect to obtaining Council documentation until 1 November 2000, and although Mrs Howard may have raised the matter with Mr Keith Noble before 1 November, there was no written request capable of being regarded as a requisition for the purposes of the contract of sale.
Was Baclon in breach of the contract of sale, and not ready and willing to complete, on 1 November 2000?
81 The contention that Baclon was in breach of the contract on 1 November, and not ready and willing to complete, and therefore unable to issue a valid notice to complete, was made later, in a letter dated 28 November 2000 by solicitors engaged for Australian Mortgage at that time, Minter Ellison. They put forward two arguments. The first was that Australian Mortgage had made a requisition that it be provided with the original development consent, and in breach of contract Baclon failed to comply with the requisition. The second was that there was an implied term in the contract, to the effect that the purchaser would be able to utilise the development consent that the vendor had obtained, and the vendor had acted in consistently with that implied term.
82 I shall deal first with the argument based upon an unanswered requisition. In my opinion, the argument fails for four reasons.
83 First, a request or demand for a certified or stamped copy of a document relating to the development application would, if it be a requisition at all, be a requisition arising out of the contract or a general question about the property or title, falling within printed clause 5.1. There is no evidence to suggest that a requisition was served within 21 days after the contract date (20 September 2000) as required by printed clause 5.1. Indeed, Mr Spanko's oral evidence, which I accept, was to the effect that there was no written requisition. Therefore, assuming everything else in the purchaser's favour, the effect of clause 5.1 was that it had become too late to make a requisition, even in proper written form, well before 1 November 2000.
84 Secondly, the matter that had been raised on about 1 November appears to have been a request for the development application duly stamped and approved by Council (according to Spanko Soulos' letter of 1 November, which I accept as evidence of this fact). Evidence to which I shall refer indicates that stamped plans were never released to Baclon, because it did not make a building application or pay the requisite fee, and therefore the ‘stamped and approved’ document requested by Mrs Howard did not exist. If there had been an original ‘development application duly stamped and approved by the Council’, that document would have belonged to Baclon and, even apart from Special Condition 12, nothing in the contract for sale would require that the original document be handed over to the purchaser prior to completion.
85 Thirdly, I am not satisfied on the balance of probabilities that Mrs Howard had authority to make any requisitions on behalf of Australian Mortgage as purchaser. The making of requisitions would have placed her at risk of breach of what is now s 206B (3) of the Corporations Act, since that would ex facie be conduct in the management of the company's affairs. While there is no evidence that the director of Australian Mortgage, Kellie Howard, was actively involved in the company's business and affairs, neither is there evidence that she acquiesced in her mother purporting to conduct the conveyancing transaction on the company's behalf generally, or to make requisitions pursuant to the contract on its behalf.
86 Fourthly, in my opinion Special Condition 12, on its proper construction, precluded the purchaser from making a requisition requesting that the original documentary development approval or any certified or stamped copy of it, or of any plans connected with it, be made available by the vendor. Special Condition 12 required the purchaser to accept the property subject to the development approval and precluded it from making any requisition in respect of the development approval. The words ‘in respect of’ are words of very wide import. Therefore as a matter of literal construction, Special Condition 12 prevented a requisition seeking documents with respect to the development approval, because such a requisition would be ‘in respect of’ the approval. Moreover, it is plain on the face of the contract that Special Condition 12 was intended to relieve the vendor of any obligations with respect to the matter of development approval, on the basis that the vendor disclosed in the contract what had occurred and by that special condition left it to the purchaser to make its own inquiries and its own arrangements on that subject.
88 My conclusion, therefore, is that Baclon was not in breach of the contract for sale on 1 November 2000, as regards Mrs Howard's request for documentary material concerning the development application. There is no basis for contending, given the reasons for my conclusion, that any breach of contract by Baclon arose out of this matter at any subsequent time; nor that on 1 November or any later time Baclon was not ready and willing to complete.87 Minter Ellison's second argument was based on the contention that there was an implied term in the contract for sale to the effect that the purchaser would be able to utilise the development consent obtained by the vendor. This was said to arise from the fact that the property had been sold subject to the development consent. However, the wording of the Special Condition 12 is to the effect that the purchaser agreed to accept the property subject to be development approval, rather than that the property was sold subject to the development approval. In my opinion the difference, though subtle, is significant. The purport of Special Condition 12 was to require the purchaser to accept the property subject to the development approval and not to object or make requisitions in respect of it. There was no warranty by the vendor to confer the benefit of the development approval on the purchaser. That being so, there is no basis for implying a term of the kind contended for. Indeed, the implied term would be inconsistent with the express words of Special Condition 12, because the implied term would purport to confer on the purchaser a right to requisition the supply of the original consent, whereas Special Condition 12 expressly precluded any requisition in respect of the development approval.
The first notice to complete
89 Spanko Soulos wrote to the secretary of Australian Mortgage, at the Bellevue Hill address, on 9 November 2000, enclosing a notice to complete. The notice, also dated 9 November 2000, required Australian Mortgage to pay the balance of the purchase money on or before 28 November 2000, declaring that in this respect time was of the essence of the contract, and appointed 12 noon on 28 November at the office of Peter Bain & Co, at a specified address, as the time and place for completion, and said unless Australian Mortgage completed within the time specified in the notice, the vendor would be entitled to terminate the contract.
90 On 27 November 2000 Spanko Soulos wrote to the secretary of Australian Mortgage at the Bellevue Hill address, marked ‘Your Ref: Mrs Howard’. The letter referred to Mrs Howard's attendance at the office of Spanko Soulos on that day, and a letter she had also written on that day. The letter noted that Mrs Howard had not submitted a transfer, and referred to her advice on that day that settlement would not take place on the following day as required by the notice to complete. The letter claimed that the vendor was entitled terminate the contract.
91 The letter then addressed the availability of ‘stamped plans’. Spanko Soulos claimed that although a development approval had issued upon the basis of plans lodged by the vendor with the Council, the vendor never lodged a building application or paid the relevant fees, and accordingly stamped plans had never been issued. The letter referred to Special Condition 12 of the contract for sale and asserted that neither the contract nor settlement was subject to the vendor furnishing approved plans to the purchaser.
92 Mrs Howard wrote to Spanko Soulos on 27 November 2000, purportedly on behalf of Australian Mortgage. The gist of the letter was to request some documentation from the Council, evidently only obtainable by the vendor and not by the purchaser directly, because the purchaser's builder and proposed lender both needed this further documentation. The letter claimed that settlement would be effected within 7 to 10 working days after the required documentation was supplied. The letter was not clear as to precisely what documentation was needed. It referred to ‘a certified copy of the development approval’ in respect of property, and also referred to a promise by Keith Noble to supply a ‘stamped copy’ after he made available to Council the original letter addressed to Baclon for sighting. A comparison of this letter with the letters of Spanko Soulos of 1 and 27 November gives rise to the inference that there was some confusion or uncertainty in the minds of Keith and Roger Noble and their solicitor as to exactly what documents Mrs Howard required. I think it is likely, on balance, that the confusion was created by Mrs Howard.
94 In my opinion the notice to complete dated 9 November 2000 was a valid and effective notice for the purposes of the contract for sale. Australian Mortgage failed to complete at the time appointed by the notice, and consequently Baclon was entitled to terminate the contract for sale. If it had done so, it would then have been entitled to take possession of the property and terminate the deed of licence without notice, under clause 10 of the deed.93 On 28 November 2000, the day fixed for settlement by the notice to complete, Minter Ellison, solicitors, wrote to Spanko Soulos, saying that they had been instructed to act on behalf of Australian Mortgage in relation to the ‘purported’ notice to complete issued on 9 November 2000. The letter said that the purchaser did not accept the validity of the purported notice to complete. I have already summarised Minter Ellison's arguments for the invalidity of the notice to complete, and I have rejected them.
The second notice to complete
95 Although Spanko Soulos asserted that Baclon had become entitled to terminate the contract for sale on 28 November, Baclon did not purport to terminate at that stage.
96 On 28 November 2000 Minter Ellison wrote to Spanko Soulos saying that their client had arranged for Council to prepare original replacement development consents, to be collected by Baclon, since the Council would not issue the documents to Australian Mortgage as the development consent was not directed to that company. The letter said that the receipt of this documentation would satisfy Australian Mortgage ‘in relation to the requisition’, and said that the purchaser would be in a position to settle the manner in 14 working days.
97 On 28 November 2000 Spanko Soulos replied to both of the letters from Minter Ellison, denying the allegations made against Baclon and concluding that they were seeking instructions to terminate the contract. On 29 November 2000 they wrote again to Minter Ellison, and to Australian Mortgage, denying a request for an extension of time to complete. Nevertheless, it appears that Baclon co-operated with Australian Mortgage to the extent of attending on the Council and obtaining a replacement development approval, which was then provided to Australian Mortgage. On 4 December 2000 Minter Ellison wrote to Spanko Soulos confirming that receipt of this document satisfied ‘the outstanding requisition previously made by our client’. The letter said that Australian Mortgage was currently liaising with its intended mortgagee in relation to the settlement, and undertook to advise as soon as a firm date for settlement could be arranged.
99 The notice to complete was directed to Australian Mortgage and expressed to be from Baclon, and it gave notice as follows:98 On 6 December 2000 Spanko Soulos wrote to the secretary, Australian Mortgage care of Andrew Ashton Accountants, and to Minter Ellison, and to the secretary Australian Mortgage at the Bellevue Hill address, marked to the attention of Mrs Howard. Each of those three letters enclosed a notice to complete by way of service.
1. That the Vendor is ready and willing to transfer to you the property situated at 45 Streatfield Road, Bellevue Hill in accordance with Contract dated 20 September 2000.
2. You are required to complete the purchase and pay the balance of purchase money on or before 22nd December 2000 and in this respect time is of the essence of the Contract.
3. The Vendors appoint 12.00 noon on 22nd December 2000 at the office of Peter Bain & Co, Level 15, St Martin's Tower, 31 Market Street, Sydney as the time and place for completion.
4. Unless you complete within the time specified in this notice the Vendors will be entitled to terminate the Contract.’
The notice was dated 6 December 2000 and signed by the solicitor for the vendors.
100 I have held that Baclon was not in breach, and was ready and willing to complete, at the time when its solicitor issued the first notice to complete on 9 November 2000, notwithstanding Mrs Howard's purported ‘requisition’ with respect to Council documentation. But any shadow of doubt on that subject had been removed by 6 December 2000, when the second notice to complete was issued, since Minter Ellison as solicitors for Australian Mortgage had confirmed in writing on 4 December that their client's ‘outstanding requisition’ had been satisfied.
101 Special Condition 5 of the contract for sale stated that a 14 day notice to complete was considered by the parties to be reasonable and sufficient to render time for completion essential (as to which, see Caleo Bros Pty Ltd v Lyons Bros (Aust) Pty Ltd [1980] NSW Conv R 55-004); and even without such a provision, I would regard a 14 day notice as reasonable in all the circumstances. I am therefore satisfied that the notice to complete of 6 December 2000 was a valid and effective notice. No criticism has been made of the contents of the notice, and I see no basis for criticism of it.
103 On 18 December 2000 Spanko Soulos wrote to Minter Ellison noting that the notice to complete would expire on 22 December, and that they were still awaiting a transfer. The letter stated that if the transfer was not furnished, Spanko Soulos would attend the place of settlement with a transfer duly executed by Baclon. The letter also set out a draft settlement sheet together with copies of various assessment notices, and a direction as to disbursement of the settlement monies. The letter was endorsed with a note to the effect that the office of Spanko Soulos would close at 12 noon on 22 December 2000 and reopen on 15 January 2001.102 I am satisfied that the notice to complete of 6 December was effectively served under the contract for sale, on 6 December 2000. It was personally served on 6 December by Mr Oner, a licensed commercial sub-agent, on the purchaser at the address of its accountant, which was the purchaser’s address stipulated in the contract for sale. It was also served on the purchaser's solicitor, Minter Ellison. And it was personally served by Mr Oner on 6 December on a female (probably Mrs Howard) at 45 Streatfield Road Bellevue Hill.
The events of 22 December 2000
104 Mr Spanko gave evidence that he attended at the place nominated for settlement, the offices of Peter Bain & Co, at approximately 11:55am on 22 December 2000, and that he remained there until at least 12:25pm. He had with him an unstamped memorandum of transfer executed by Baclon under seal in the presence of a director and secretary, and a direction to the purchaser setting out details of the cheques required to be handed over on settlement. His evidence is that during the time when he was at the offices of Peter Bain & Co, there was no appearance by anyone on behalf of the purchaser nor, to his knowledge, did anyone on behalf of the purchaser telephone those offices in respect of the settlement.
105 At about 12:25pm Mr Spanko's secretary called him at the offices of Peter Bain & Co, to advise him that she had received a telephone call from Minter Ellison at approximately 12.20pm to say that the purchaser was unable to settle on that day. Mr Spanko then left the offices of Peter Bain & Co and returned to his office.
106 Ms Catherine Bain, a director of P Bain & Associates Pty Ltd, which is the New South Wales agent for Suncorp Metway Ltd (the vendor's mortgagee), gave evidence confirming the time of attendance by Mr Spanko and that no-one represented the purchaser or contacted the office on the purchaser's behalf. She confirmed that she held the certificate of title, mortgage and a discharge of mortgage executed in anticipation of settlement, and that she was in a position to settle the discharge of mortgage on receipt of a bank cheque in the amount that was the subject of the written direction by Spanko Soulos to the purchaser. Her evidence, on the basis of 11 years of experience in attending at settlement, was that 10 minutes would be a reasonable time to wait in case anyone was running late for a settlement, and to wait 20 minutes would be more than reasonable.
107 The evidence of Mr Spanko and Ms Bain, which I accept, establishes that Baclon was in a position to settle and could have settled if there had been an attendance at the designated time and place on behalf of the purchaser: see Frankcombe v Foster Investments Pty Ltd [1978] 2 NSWLR 41 at 48; K E Lindgren, Time in the Performance of Contracts (2nd ed, 1982) para 599.15. It also establishes that Mr Spanko gave Australian Mortgage a reasonable opportunity to present itself for the settlement at the time and place designated by the notice to complete of 6 December 2000.
109 Therefore, when Australian Mortgage failed to attend the settlement it breached an essential time requirement of the contract for sale, and thereupon Baclon was entitled to terminate the contract by written notice under printed clause 9 and special condition 5.108 In any event, when Minter Ellison contacted the offices of Spanko Soulos at about 12:20pm on 22 December 2000 to indicate that Australian Mortgage was not in a position to settle on that day, their action excused Baclon from having the show that it was in a position to settle: Peter Turnbull & Co Pty Ltd v Mundus Trading Co Australasia Pty Ltd (1953) 90 CLR 235, 246 per Dixon CJ. In view of my finding that Baclon has established that it was in a position to settle, it is unnecessary for Baclon to rely on this point.
The purported termination of the contract of sale and deed of licence
110 Later on 22 December Mr Spanko received a letter from Minter Ellison bearing that date. He also issued a notice of termination of the contract for sale. His evidence is that he cannot recall whether he received Minter Ellison's letter before or after issuing the notice of termination. It seems to me, however, that nothing turns on that point, for reasons that I shall explain. Moreover, Mrs Howard has sought to prove that there were great difficulties in transmitting facsimile messages to Spanko Soulos because their fax machine was broken. But once again, it seems to me not to matter whether the Minter Ellison letter arrived in the offices of Spanko Soulos prior to, before or after Mr Spanko's sojourn to the offices of Peter Bain & Co.
111 Minter Ellison's letter of 22 December 2000 complained that delay by Baclon in providing the Council documentation to satisfy the builder's requirements had forced substantial difficulties to Australian Mortgage, which would not be in a position to settle the matter at the time designated in the notice. The letter also referred to difficulties experienced by Australian Mortgage in satisfying the requirements of its mortgagee in the limited time available, with ‘key people’ already planning early exits for the holiday and Christmas period. The letter also referred to expenditure by Australian Mortgage in order to make the property habitable, including cleaning, painting, laying carpet, electrical work and hot water installation. It said that Australian Mortgage still intended to proceed to settlement and suggested that arrangements for settlement be made during the week beginning 15 January 2001, when the offices of Spanko Soulos would re-open.
112 The Minter Ellison letter was quite short on specific facts, bearing in mind that it was written on the date of expiry of the notice to complete for the purpose of securing extra time. Nothing was said as to whether the mortgagee had agreed to provide finance, or as to the nature of the requisitions still outstanding, or to identify the ‘key people’ who would be away. To the extent that it relied upon an allegation of delay by Baclon in supplying Council documentation as justifying Australian Mortgage's failure to complete, it was deficient in two respects: Baclon had no obligation to supply the documentation, and the notice to complete of 6 December allowed a reasonable time to complete after the documentation had been supplied. In my view, it would have been reasonable for Baclon and Mr Spanko to treat the letter with considerable scepticism, and there was nothing in it to cause a reasonable person in their shoes to defer termination of the contract.
113 Spanko Soulos replied on the same day, noting that Minter Ellison had been unable to nominate a definite date for settlement, and enclosing a notice terminating the contract. Enclosed was a letter from Spanko Soulos directed to Australian Mortgage and their solicitors, Minter Ellison, dated 22 December 2000, saying that ‘as a result of your failure to complete the sale in accordance with the Notice to Complete dated the 6 December 2000 making time of the essence of the Contract we hereby terminate the Contract’. The letter to Minter Ellison enclosing the notice of termination was sent to that firm through the document exchange on 22 December 2000.
115 On 22 December 2000 Mr Spanko also prepared a letter on his firm's letterhead, dated 25 December 2000, addressed to Australian Mortgage at 45 Streatfield Road Bellevue Hill. It referred to the notice of termination which (it said) had been forwarded to the purchaser, at the same address and at its registered office and to its solicitors. The letter continued:114 Mr Spanko's evidence, which I accept, is that he posted the notice of termination to Australian Mortgage at the address of Andrew Ashton nominated in the contract for sale, and also posted it to Australian Mortgage at 45 Streatfield Road Bellevue Hill, on 22 December 2000. Service by post was authorised by s 170 of the Conveyancing Act and clause 20.6.4 of the contract for sale. I conclude, therefore, that the notice of termination of the contract for sale was properly given.
‘We confirm that the Contract has been terminated and we give you further notice that we require you to immediately vacate the premises in accordance with clauses 10 and 15 of the Deed of Licence dated 20 September last.’ Mr Spanko's evidence, which I accept, is that he posted the letter on 26 December 2000.
116 The notice dated 25 December 2000 purported to require vacant possession pursuant to the deed of licence. Clause 13 of the deed of licence did not expressly authorise service by post. However, it is clear from the wording of clause 13 that it was not intended to deal exhaustively with methods of service of a notice for the purposes of the deed. It stated sufficient conditions for service, rather than necessary conditions.
118 There is no admissible evidence that Australian Mortgage did not receive the letter of 25 December, although Mrs Howard has given evidence that she did not receive the letter. In my opinion it was validly served under s 170. But failure to serve it would not defeat Baclon's right to re-enter into possession, since clause 10 of the deed of licence, which conferred that right, expressly authorised it to be exercised without notice or demand.117 Section 170 (1) of the Conveyancing Act states that a notice required or authorised by the Act to be served is sufficiently served, inter alia, if sent by post to the last known residential or business address in or out of New South Wales of the person to be served. By s 170 (2A), the same provisions extend to notices required to be served by any instrument affecting property, unless a contrary intention appears in the instrument. In my opinion, the deed of licence is an instrument affecting property, because it creates a contractual right to possession of property, even though it does not purport to confer any proprietary interest. Since clause 13 of the deed sets out sufficient but not necessary conditions, it does not exhibit any contrary intention excluding the application of s 170. It cannot be said that by including clause 13, which overlaps with s 170, the drafter impliedly intended to exclude the statutory provision, because clause 13 does some work not done by s 170, by permitting service at the office of a party's solicitor.
Events after 25 December 2000
119 It appears that in late January and early February 2001 Minter Ellison had instructions to push for settlement. On 1 February 2001 they wrote to Spanko Soulos saying that two telephone messages had been left at the latter's office in an attempt to advise that Minter Ellison held a copy of a loan approval. However, the letter did not give any particulars of the loan approval. In my view, this letter tends to confirm that there was no firm loan approval in place on 22 December 2000 when the notice of termination of the contract for sale was served.
120 On 13 February 2001 Baclon purported to re-enter and take possession of the main residence and lower flat at 45 Streatfield Road, leaving Kellie Howard in occupation of the upper flat. Mrs Howard arrived at the premises only after the locks had been changed. She had an altercation with Roger Noble, and endeavoured to have her own locksmith replace the locks again, but in my opinion nothing turns on those events.
121 Mrs Howard alleges that Keith Noble engaged in misleading conduct, by telling her daughter that he was doing repairs, and that Roger Noble also engaged in misleading conduct by saying that he had a court order in his car. Since Mrs Howard's evidence is not corroborated and is contested, I reject it.
122 On 14 February 2001 Minter Ellison wrote to Spanko Soulos to make a new offer for Australian Mortgage to purchase the property, ‘prior to taking further action in this matter as a result of the occurrences which occurred yesterday and last night’. The offer was to purchase the property for $1.4 million, settlement to take place within 14 days. If settlement did not occur within 14 days, Australian Mortgage would vacate the premises within a further seven days.
123 As was the case with their letter of 22 December 2001, Minter Ellison's letter of 14 February 2001 was quite unspecific as to whether Australian Mortgage had obtained a finance approval in specific terms or in principle, and whether there were any requirements by the proposed financier still to be met. Although Minter Ellison had said in a letter of 1 February 2001 that they held a copy of a loan approval, Baclon was entitled to be sceptical as to the position after receiving the letter of 14 February. At no stage had Australian Mortgage or Minter Ellison produced to Baclon any firm external evidence of any arrangements that would provide reassurance that finance would be forthcoming.
124 Spanko Soulos replied on 15 February 2001, requiring a letter from the lender to Australian Mortgage, indicating that a loan had been approved to assist in the purchase of the property for $1.4 million and that the lender was ready to settle within 14 days. The letter also said that Baclon would not allow the deposit moneys on the previous contract to be applied as a deposit in any new sale, but would accept a deposit of $20,000. The letter also set out the terms on which Baclon would hand over documents and chattels on the property. The terms included an acknowledgment from Mrs Howard, Michael and Kellie Howard, to the effect that they had no right to occupy the property, and that a representative of Minter Ellison (but not Mrs Howard herself) would attend the premises in the presence of Baclon's security guard to remove legal documents and medication, and certain other items.
125 No letter from a financier was produced in response to Spanko Soulos' letter, and the counter-offer for sale of the property was not taken up. Nor was the offer to hand over documents and chattels. Minter Ellison wrote to Spanko Soulos on 19 February 2001 refusing the offer of access to the property on the terms set out in the latter's letter of 15 February on the ground that ‘our client's possession of the property is not negotiable’. The letter made a demand for documents that were in the main house, and expressed concern that people had entered the main house on the night of 14 February. The letter expressed a desire on the part of Australian Mortgage to settle the sale.
126 On 19 February 2001 Spanko Soulos wrote to Minter Ellison setting out the terms upon which Baclon would permit Michael Howard to retrieve his belongings from the lower flat. They wrote to Michael Howard directly, at the Streatfield Road address, on 2 March 2001 saying they had been informed by Kellie Howard that Minter Ellison did not act for Australian Mortgage, Kellie or Michael Howard. They enclosed a copy of their letter to Minter Ellison of 19 February regarding the terms upon which Michael Howard’s belongings could be recovered.
127 On 1 March 2001, presumably for more abundant caution, since it was after the change of the locks on 13 February, Spanko Soulos sent identical letters to Michael, Kellie and Eleanor Howard, and to ‘The Occupier’, each at 45 Streatfield Road Bellevue Hill.
128 The letters addressed to Kellie Howard the occupant were personally served on Kellie Howard by process server, Matthew Carey, on 4 March 2001. He was unable to serve Eleanor Howard or Michael Howard. All four letters were posted on about 1 March 2001. For the reasons already given, my view is that s 170 of the Conveyancing Act applied to notices given under the deed of licence, and therefore the notices of 1 March 2001 were properly served on all four addressees by post, as well as on two addressees personally.
129 If notice had been required for the exercise of Baclon's right of re-entry into possession, the requirement would have been satisfied by these notices, although the notices would not have justified Baclon's earlier action. I have found, however, that the letter of Spanko Soulos dated 25 December 2000, which gave notice to Australian Mortgage that Baclon required it to vacate, was validly served; and I have also found that notice was not required by clause 10 of the deed of licence. In these circumstances the letters of 1 March 2001 need not be relied upon to establish Baclon's right to re-gain possession, but if there were any doubt about the matter, they would remove that doubt as from the date that they bear.
131 Mrs Howard has made various uncorroborated allegations, partly by her affidavits and oral evidence and partly in submissions, about the following matters:130 On 20 March 2000 Spanko Soulos wrote to Kellie Howard offering a mutual release of liability if she, her brother and her mother vacated the premises by 27 March and a notice of discontinuance of the Supreme Court proceedings was signed. It appears that the offer was not accepted before 30 March, the deadline for acceptance.
(a) that a substantial amount of money ($58,000 to $62,000), important documents and certain chattels have been moved from their proper places in the main house, and that there may be criminal activity involved;
(b) that she has not received adequate access to inspect the premises and recover her belongings which are in the premises;
(c) that Kellie, and also she herself, have been harassed and threatened, and in particular Roger Noble has made threats to Kellie with respect to her cats, and Keith Noble has threatened to make Kellie bankrupt;
(d) that Roger and Keith Noble have granted access to real estate agents (especially John Cass) and have instructed them to sell the property, and have allowed this process to continue notwithstanding the undertakings made in court on 30 May 2001 and even that a purchaser has been found for a higher purchase price;
132 It is unnecessary to deal more fully with these various allegations. They are denied by the defendants, and because they are uncorroborated, and in light of the view I have taken about Mrs Howard as a witness, I am not prepared to accept that any of these matters has been proven.
(e) that Mr Spanko has lied about the number and location of keys to the premises;
(f) that the premises have been allowed to deteriorate, because of water leaks and inadequate maintenance;
(g) that Kellie has made some secret arrangements with the Nobles to receive an ‘under-the-table’ payment out of the proceeds of sale of the property at a higher price, in consideration of a release from her and Australian Mortgage.
Findings on the first cross-claim
133 I find, for the reasons I have given, that Baclon has established its entitlement to the relief it claims in paragraphs 1 to 6 of the first cross-claim.
134 The evidence establishes that the contract for sale has been validly terminated by Baclon, and it is entitled to a declaration to that effect, in the terms sought in paragraph 1 of the first cross-claim.
135 Printed clause 9 of the contract for sale states that after termination under that clause, the vendor can keep or recover the deposit to a maximum of 10% of the price. The deposit in the present case is an amount less than 10% of the purchase price. Paragraph 2 of the first cross-claim seeks a declaration that the deposit of $70,000 paid under the contract is forfeited to Baclon. As I have said, Australian Mortgage has not made any claim under s 55 (2A) of the Conveyancing Act. In those circumstances Baclon is plainly entitled to the declaration that it seeks.
136 The first cross claim does not seek relief to establish an entitlement to a deposit greater than the deposit of $70,000, notwithstanding the Special Condition 7 of the contract for sale, nor an entitlement to interest on the balance of the purchase money under Special Condition 6, and it is therefore unnecessary for me to deal with the question whether Baclon has an entitlement against Australian Mortgage under either of those clauses.
137 Paragraph 3 of the first cross-claim seeks a declaration that pursuant to the terms of the deed of licence, the right of any of the cross defendants (Australian Mortgage, Eleanor, Kellie and Michael Howard) to occupy the property has been terminated. As I have said, clause 10 of the deed of licence permitted Baclon without notice or demand to Australian Mortgage to re-enter the property, change locks and take possession, and eject any occupants and thereby determine the interest of Australian Mortgage as licensee, in the event of the contract for sale being terminated or rescinded for any reason whatsoever. I have found that Baclon validly terminated the contract for sale on 22 December 2000, on the ground of Australian Mortgage's failure to complete on that day. Thereafter Baclon was entitled to re-enter without notice under clause 10 of the deed of licence. It did so on 13 February 2001. It is entitled to a declaration in terms of paragraph 3 of the first cross-claim. That being so, it is entitled to judgment for possession of the property, as sought in paragraph 4 of the first cross-claim.
138 Paragraph 5 of the first cross-claim seeks judgment against Australian Mortgage and Kellie Howard for $20,800. By clause 3 of the deed of licence Australian Mortgage promised to pay an occupation fee if completion of the contract for sale was not effected on or before 1 November 2001 through no fault of Baclon. Completion was not effected on or before 1 November, and I have found that Baclon was not at fault at that time or subsequently. Consequently the licence fee, in the sum of $200 per day, came to be payable as from 1 November 2000. Under clause 3 the licence fee was payable, relevantly, until Australian Mortgage ceased to occupy the property.
139 Although Eleanor and Kellie Howard were permitted to remain in occupation of the upper rear flat of the property subsequently, under interlocutory arrangements, Australian Mortgage ceased to occupy the main part of the property on 13 February 2001. Paragraph 5 seeks an occupation fee for 104 days, which is the period from 1 November 2000 to 13 February 2001. Since there is no claim to an occupation fee for any period after the latter date, is unnecessary for me to consider the effect, in terms of clause 3, of Kellie and Mrs Howard remaining in the upper flat.
140 Australian Mortgage is liable as licensee to pay the occupation fee of $20,800 under clause 3 of the deed of licence. Kellie Howard is liable as guarantor to meet the obligation that Australian Mortgage has failed to meet. In the circumstances, Baclon is entitled to judgment against them as sought in paragraph 5 of the first cross-claim.
141 In my opinion, Baclon is also entitled to be granted leave to issue a writ of possession forthwith, but in case there is any consideration of justice that might otherwise be overlooked, I shall allow Mrs Howard to address the Court on that point before finally deciding whether to grant leave accordingly. I shall also hear any submissions on the question of costs of the first cross-claim.
143 Given my conclusions on the first cross-claim, Baclon, and Roger and Keith Noble, are entitled to be released from the undertakings they gave to the Court on 30 May 2001, and Baclon is entitled to the return of the keys to the property currently deposited with the Court. I shall make orders accordingly.142 Counsel for Baclon made some submissions directed to the position which would arise if the Court found that Baclon's purported termination of the contract for sale and deed of licence were invalid. The submission contended that there were grounds for finding that Australian Mortgage had abandoned the contracts. It is unnecessary for me to deal with those submissions, as I have found in favour of Baclon on the primary submissions.
Findings on the second cross-claim
144 The second cross-claim is brought by Mrs Howard alone, against Australian Mortgage, Kellie and Michael Howard, Baclon, and Roger and Keith Noble. It contains five prayers for relief.
145 Paragraph 1 seeks a declaration that the contract for sale was part-performed by the purchaser and that the vendor failed to respond to requisitions made in order to complete finance requirements. The first paragraph 2 seeks a declaration that by representations made by the vendor and its solicitor their expedition of the conveyancing would not bring into effect any further moneys to be paid other than those of the purchase price. The second paragraph 2 seeks a declaration that the contract for sale is still on foot and that the vendor be required to complete the sale without penalty to the purchaser. Paragraph 3 seeks, alternatively to the second paragraph 2, a declaration that the vendor pay the purchaser the sum of $100,000, being the value added to the property by works done by the purchaser and its agents together with the sum of $150,000 being money spent and deposit released.
146 In my opinion, Mrs Howard has no right or standing to seek the relief sought in paragraphs 1, the first and second paragraphs 2, and paragraph 3. The rights asserted by those paragraphs are rights which, if they exist, belong to Australian Mortgage. Mrs Howard does not represent Australian Mortgage. The amended summons by which Australian Mortgage sought broadly similar relief has been dismissed for want of prosecution.
147 It might be thought that Mrs Howard could seek orders for the benefit of Australian Mortgage under s 36C of the Conveyancing Act. But in my view s 36C does not assist Mrs Howard. She is not a party to the contract for sale, nor to the deed of licence. The deed of licence permitted Kellie Howard and two others of the Howard family to reside in the property. However, Mr Spanko gave evidence that when he asked, before the execution of the documents, who were the members of the Howard family who would occupy the property, he did not receive an answer. Mr Keith Noble gave evidence that he did not know Mrs Howard was going to move into the property before the documents were signed. In those circumstances, it cannot be said that Mrs Howard, although not named as a party to the deed of licence or contract for sale, was a person with whom an agreement or covenant was purportedly made. Therefore she cannot invoke s 36C to claim the relief sought in the first four paragraphs of the second cross-claim: see Beswick v Beswick [1968] AC 58, at 74 (per Lord Reid), 86 (per Lord Guest), 90 (per Lord Pearce) and 106 (per Lord Upjohn); White v Bijou Mansions [1936] Ch 610, 625 (per Simonds J).
148 Even if Mrs Howard could overcome the problem of privity, there would be other obstacles to her obtaining relief of these kinds. Although she has adduced some evidence of improvements made to the property, including the tender of some photographs, there is no evidence identifying the cost to the company of works done on the property by its agents, or specifying with particularity the works said to have been done; nor is there evidence of the amount by which the value of the property has increased (if it has done so) due to such work and expenditure.
149 There are circumstances in which a purchaser may be granted compensation for the value of improvements made to the vendor's property: see Revell v PC Developments Pty Ltd (1990) NSW ConvR 55-527. But the present case is quite distant from such circumstances. Mr Noble gave evidence that he anticipated that the building on the property would be demolished and redeveloped, and there is evidence that the purchaser intended to do so.
150 Further, to the extent that she seeks orders in the nature of specific performance, she has not put before the Court any satisfactory evidence to show that Australian Mortgage is ready, willing or able to complete the contract. Indeed, the evidence makes me highly sceptical that Australian Mortgage has ever had access to finance in the large amount evidently needed by Australian Mortgage to complete this contract. If such evidence is not before the Court, either in pleadings or at the hearing, an order for specific performance will not be made: Bahr v Nicolay (No 2) (1988) 164 CLR 604, 620 per Mason CJ and Dawson J; 640-41 per Wilson and Toohey JJ; 657 per Brennan J.
151 That leaves paragraph 4 of the second cross-claim, in which Mrs Howard claims a declaration that she has suffered damage and continues to do so as a result of the actions and conduct of Australian Mortgage, Kellie Howard, Baclon, Keith Noble and Roger Noble.
152 The nature of the damage alleged to have been suffered by Mrs Howard at the hands of all or any of these other parties, and the circumstances in which the damage is said to have occurred, are not made clear anywhere in the evidence or in Mrs Howard's submissions.
153 To the extent that she may claim that she suffered damage through the re-taking of possession, an obstacle to her claim is my finding that the re-taking of possession was lawful. It cannot be said that she suffered any trespass to the person or assault during the course of the re-taking of possession, because the evidence is that she was not personally there at the time of re-entry and changing of the locks. Nor is there any evidence that anyone touched or interfered with her at any other time in order to obtain possession.
154 To the extent that her claim is based upon not recovering documents, money and chattels from the property, her difficulty is that various offers were made to her or her then solicitors which would have given her access to recover those things (see, in particular, the letter of Spanko Soulos to Minter Ellison dated 15 February 2001), and she availed herself of the opportunity only once, when there was a supervised recovery of property on 12 June 2001. On that occasion she prepared an inventory of the items that she recovered. She said that certain items were missing, but she did not return to the premises for another inspection prior to the hearing, although interlocutory arrangements were in place to enable her to make an application to do so.
155 In submissions she made veiled allusions to criminal activity, and negligent or unethical conduct by Mr Spanko, but as far as I could see, the external facts amounted to no more than that she was unable to observe in the premises some of the property she believed to have been there, during her brief inspection. Her uncorroborated assertions fall a long way short of the kind of evidence that would establish a misappropriation of her money, documents or chattels. In particular, her uncorroborated claim that a large amount of money that she had left in the premises is now missing is in my view implausible, in the absence of any supporting evidence.
156 To the extent that she claims to have suffered loss or damage by virtue of being deprived of her documents and chattels, there are several answers to her claim. The first is that she has not been deprived of them but instead, the Court has put in place an interlocutory regime to give her access to the premises to recover her things subject to requirements designed to protect the interests of all parties including the defendants. Secondly, in view of clause 10 of the deed of licence, it has not been established that any restriction of access imposed by the defendants at any time was unlawful. Thirdly, she has not shown that being deprived of her things (including her legal documents) has in fact caused her loss or damage. Fourthly, in any claim for recovery of damages, the defendant could presumably set up against her a cross-claim based upon her receipt of rent-free accommodation in the main house, at least from 1 November 2000 until 13 February 2001, and also rent-free accommodation for a significant period subsequently, in the upper flat with her daughter.
158 Doing the best I can to assess the unclear, uncorroborated and unorganised evidence presented in an emotional fashion by Mrs Howard in support of the second cross-claim, I cannot find any basis in it at all. In my opinion the second cross-claim should be dismissed.157 Mrs Howard can have had no greater right to occupy the property than Australian Mortgage, which was a contractual licensee. In fact, there was no direct contractual relationship with respect to occupation between her and Baclon. She was a bare licensee, whose right of occupation was effectively terminated when the deed of licence was terminated. Those events do not give her any claim to recover damages. There is some unspecific evidence that she was disturbed by hearing voices of people on the property, but no evidence that she suffered any quantifiable loss or damage in respect of those events.
Conclusions
159 I have concluded that I should make orders in terms of paragraphs 1 to 5 of the first cross-claim, and perhaps also paragraph 6. I intend to dismiss the second cross-claim. I shall also deny the application by notice of motion filed on 23 August 2001.
161 Additionally, my orders will deal with costs in relation to the amended summons, which has already been dismissed. In my opinion there is no ground for denying the defendants the order that they seek, namely an order for costs against the first and second plaintiffs in relation to the amended summons.160 I shall give Mrs Howard the opportunity to make submissions on the question whether there is any reason why I should not grant leave to Baclon, after I enter judgment for possession in its favour, to issue a writ of possession forthwith. I shall grant that leave unless Mrs Howard draws my attention to facts and circumstances of which I am not presently aware. I shall also allow her to make submissions with respect to the costs of Baclon's successful first cross-claim, and her unsuccessful second cross-claim.
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