Bruce v Baju Henley Square Pty Ltd - [2016] SASCFC 149

Supreme Court of South Australia
(Full Court)
BRUCE v BAJU HENLEY SQUARE PTY LTD
[2016] SASCFC 149
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Hinton)
22 December 2016
CONVEYANCING - BREACH OF CONTRACT FOR SALE AND REMEDIES - VENDOR'S REMEDIES - SPECIFIC PERFORMANCE
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS
Appeal against judgment ordering specific performance and dismissing cross-action for declaration of valid termination.
The appellant entered into a contract with the respondent to purchase an apartment in an apartment building to be constructed. It was a term of the contract that the vendor could vary the size of the apartment by not more than 5 per cent. The appellant claimed, and the respondent denied, that by virtue of the attachment of a concept plan to the contract it was a term of the contract that the area of the apartment would be 130 square metres.
The appellant purported to terminate the contract on the ground that the apartment as constructed was only 122 square metres. The respondent brought an action for specific performance and the appellant brought a cross-action seeking a declaration of valid termination.
The trial Judge upheld the respondent’s claim and dismissed the appellant’s cross-claim.
Held (dismissing the appeal):
1. The Judge correctly held that the provision permitting the respondent to vary the area by not more than 5 per cent was a promissory term and not a condition precedent (at [43] per Blue J, Kourakis CJ agreeing, Hinton J not deciding).
2. The Judge correctly held that it was not a term of the contract that the area of the apartment be 130 square metres (at [52] per Blue J, Kourakis CJ agreeing, at [165] per Hinton J).
3. The Judge erred in holding that, if it was a term of the contract that the area of the apartment was to be 130 square metres, it could not be determined on the materials before the Judge how the area was to be measured or what was the relevant area. The area of the apartment as constructed was to be measured in accordance with s 19(4) of the Community Titles Act 1996 (at [60] per Blue J, Kourakis CJ agreeing, Hinton J at [177] dissenting) and extended to the edges of the balcony slab (at [65] per Blue J, Kourakis CJ agreeing, at [211] per Hinton J) and the area was 123.8 square metres.
4. The Judge erred in holding that, if the respondent had breached the contract, the breach would not have been sufficiently serious to justify termination (at [65] per Blue J, Kourakis CJ agreeing, Hinton J not deciding).
Acts Interpretation Act 1915 (SA) s 10A; Community Titles Act 1996 (SA) s 3, s 7, s 9, s 10, s 14, s 19, s 22, s 23, s 28, s 75, s 101, s 134, ss 6, ss 9, ss 19; Community Title Regulations 2011 (SA) reg 4, reg 13; Plan Presentation Guidelines Chapter 9; Real Property Act 1886 (SA) s 241; Residential Property Council of Australia Guidelines , referred to.
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, applied.
Baju Henley Square Pty Ltd v Bruce [2015] SASC 169; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; Cornwell v The Queen (2007) 231 CLR 260; DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; Frankel v Paterson [2015] NSWSC 1307, (2015) 18 BPR 35,391; Higgins v Statewide Developments Pty Ltd [2010] NSWSC 183, (2010) 14 BPR 27, 293; Kuru v New South Wales (2008) 236 CLR 1; Prince Alfred College Inc v ADC (2016) 90 ALJR 1085; Tiplady v Gold Coast Carlton Pty Ltd (1984) 3 FCR 426; Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522, considered.

BRUCE v BAJU HENLEY SQUARE PTY LTD
[2016] SASCFC 149
Full Court: Kourakis CJ, Blue and Hinton JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Blue J.
On the second issue, whether the reference to 130 sqm in the Concept Plan (the 130 sqm term) was a contractual term, I would add that, viewed objectively, the purpose of the inclusion of the Concept Plan was to document the handwritten agreement as to the wardrobes. The purpose of its inclusion was not to contradict the terms of the printed disclaimer and give contractual force to the printed parts of the document.
I make the following additional observation on the third issue, the measurement criteria. In the absence of the 130 sqm term, special condition 4.4.1 would naturally apply to the area of the unit which was ascertainable from the Architects Plans. The method of calculation of the area, on that construction of the contract, is of no moment because, whichever method is used, special condition 4.4.1 proscribes a variation of more than five per cent in the area so calculated. It is only on the appellant’s contention that the Concept Plan incorporates the 130 sqm term that a constructional dilemma arises because of the failure to specify a method of calculation for the nominated area. That omission is in itself a reason to reject the appellant’s contention that it was a term of the contract that the area, of the unit would be 130 sqm. However, on the premise that it was a term, I agree for the reasons given by Blue J, that because the title which the appellant would receive is governed by the Community Titles Act 1996 (SA), the area of the lot sold must be determined in accordance with the criteria prescribed by that Act.
On the final issue, the consequences of breach of the 130 sqm term, I observe again that the issue is problematic only because of the falsity of the premise. As Blue J correctly observes, the area variation of 5 per cent allowed by 4.4.1 is premised on the respondent changing the Architects Plans. It is intended to operate as a close and objectively ascertainable limit on the unilateral power to change the Architects Plans. It was not intended to operate on an extraneous express stipulation as to the area. There being no change in those plans clause 4.4.1 does not allow any reduction in the area and the consequences of the breach must be determined against the promise to provide a unit of 130 sqm. If the area is determined in accordance with the Architects Plan, on whichever measurement method is used, the respondent has supplied a unit with a greater area than that for which the appellant contracted even if the nib walls and edge of the slab are excluded. Only by reference to the 130 sqm term in the Concept Plan is there a material shortfall in the area supplied.
BLUE J: This is an appeal against a judgment of a Judge of this Court ordering specific performance by the purchaser of a contract for the sale of an apartment and dismissing a cross-action for a declaration that the purchaser had validly terminated the contract.
On 28 February 2010, the appellant Craig Bruce and his wife Karen Bruce met with a sales agent for the respondent Baju Henley Square Pty Ltd. The agent had earlier that day emailed to them a concept plan (the Concept Plan) in respect of proposed Lot 221 of the H₂O Apartments to be constructed by Baju. The Concept Plan included a layout plan and showed the area total as 130 square metres.
On 1 March 2010, Mr Bruce entered into a contract with Baju to purchase proposed Lot 221 as defined in the Contract (the Purchaser’s Lot) to be created by a Community Scheme in respect of an apartment building to be constructed at Henley Beach as defined therein (the Development). It was a term of the Contract that Baju could vary characteristics including the size of the Purchaser’s Lot subject to the proviso that it could not, without Mr Bruce’s prior written consent, change its area by more than five per cent (the Area Condition).
On the appointed settlement date (15 February 2012), Mr Bruce claimed that it was a term of the Contract derived from the Concept Plan, which had been included in the Contract, that the area of the Purchaser’s Lot would be 130 square metres (the 130 sqm Term), whereas Lot 221 as constructed was only 122 square metres. Mr Bruce subsequently purported to terminate the Contract because the Area Condition was not satisfied.
Baju brought the action seeking specific performance. Mr Bruce brought the cross-action seeking a declaration that he had validly terminated the Contract or alternatively rescission and damages for misrepresentation in the Concept Plan. Mr Bruce abandoned the misrepresentation claim before trial.
The trial Judge upheld Baju’s claim and dismissed Mr Bruce’s claim.[1]
[1] Baju Henley Square Pty Ltd v Bruce [2015] SASC 169.
Mr Bruce appeals against the judgment on the ground that the Judge erred in holding that the 130 sqm Term was not a term of the Contract;[2] in holding that satisfaction of the Area Condition was not a condition precedent to settlement;[3] in failing to find that the area of the Purchaser’s Lot was to be assessed by applying subsection 19(4) of the Community Titles Act 1996 (SA) (the Act) and so assessed Lot 221 as constructed was 123.4 square metres;[4] and in holding that any breach of the Contract was too insubstantial to justify termination.[5]
[2]    Grounds 1 to 4.
[3]    Grounds 6 and 7.
[4]    Grounds 5 and 9.
[5]    Grounds 8 and 9.
Baju submits by way of notice of contention that the Judge ought to have held that the area of the Purchaser’s Lot was to be measured applying the Residential Property Council of Australia Guidelines (the PCA Guidelines) and the area of Lot 221 as constructed was 132.4 square metres[6] or alternatively if measured applying subsection 19(4) of the Act was 123.8 square metres which was within the contractual five per cent tolerance of 130 square metres (123.5 square metres).[7]
[6] Ground 1.1.
[7] Ground 1.2.
The issues on appeal are as follows.
1.Was the Area Condition a condition precedent to settlement or alternatively a promissory term comprising a promise by Baju?
2.Was the 130 sqm Term a term of the Contract?
3. If so, what is the area of Lot 221 as constructed and in particular:
(a) is the area to be measured applying the PCA guidelines or subsection 19(4) of the Act?
(b) does Lot 221 extend to the western and northern edges of the balcony slab or to the eastern and southern edges of the balcony glass balustrades on those sides?
4.If the Contract was breached by Baju, did the breach justify termination by Mr Bruce?
Background
Baju was the developer of the H₂O Apartments proposed to be constructed at 348 Seaview Road, Henley Beach.
In or before November 2009, Baju engaged Loucas Zahos to prepare architectural plans and specifications for the Development. Loucas Zahos prepared a set of A0 size architectural plans (the A0 plans). Baju prepared a proposed Scheme Description which described the development and embodied the A0 plans (the Scheme Description).
The ground floor of the Development was to comprise eight retail lots. The first and second floors were each to comprise eight residential lots and the third floor was to comprise seven residential lots. Proposed Lot 221 was the second floor lot in the north western corner of the Development overlooking Seaview Road. There were two underground floors comprising carparks and each residential unit was to be allocated a carpark or carparks.
Baju also engaged Loucas Zahos to prepare concept plans for each residential apartment for marketing purposes. The Concept Plan for proposed Lot 221 contained in the heading “2.21 Area Total: 130 sqm”. It contained a plan showing the internal layout of the unit comprising three bedrooms, two bathrooms, a kitchen, a lounge/dining room, a spa, an entry/court, an atrium and a balcony. It contained a table showing dimensions of the bedrooms, kitchen, lounge/dining room and balcony. It contained an outline plan showing the location of the proposed lot as the north western apartment out of the eight strata lots on the second floor. It contained a Disclaimer including the words “Illustrations, photos and CAD images are indicative only and do not represent the final outcomes of this project.”
Baju prepared a standard form contract comprising the standard REI Schedule with typed variables (other than name and address of purchaser, lot number, number of carparks and amount of price and deposit); the standard REI Residential Contract “Terms and Conditions” (the Terms & Conditions); a 14 page attachment entitled “Special Conditions” (the Attachment); and five Annexures to the Attachment. Annexure A was entitled “Architect’s Plan” and comprised an A4 size version of the A0 plans (the A4 plans). Annexure C was entitled “Schedule of Finishes, Fixtures and Fittings”. Annexure D was entitled “Indicative Scheme Decsription [sic]” and comprised the Scheme Description. The subject matter of the contract was termed “the Purchaser’s Lot”.
Baju appointed Julianne Price Real Estate as its agent to market and sell the proposed strata lots “off the plan”. On 28 February 2010, in response to an enquiry from Mrs Bruce, Ms Price sent by email a brochure for the Development together with concept plans for the three beachfront apartments still available: Lots 221, 122 and 124. The Bruces then attended at the display suite and met with Ms Price.
On 1 March 2010, the Bruces returned to the display suite and again met with Ms Price. They decided to purchase proposed Lot 221. Mrs Bruce asked Ms Price whether robes were included in the price and Ms Price said that they were. Ms Price wrote onto a concept plan for proposed Lot 221 the words “Robes to be included in price”. Ms Price produced the standard form contract and handwrote the relevant details into the Schedule. Mr Bruce signed the execution clause at the end of the completed Schedule (the Schedule) and initialled each page of the Terms & Conditions and the Schedule, the title page of each Annexure and the Concept Plan. The Contract was initialled and signed on behalf of Baju on the same day. The Concept Plan was included as part of the Contract. Although there was some uncertainty about its location with the documents comprising the Contract, on the basis of the evidence and conduct of the parties at trial, the Concept Plan was included behind the title page of Annexure A.
On 1 February 2012, a plan of community division by way of a strata plan prepared by Alexander & Symonds Pty Ltd was deposited by the Registrar-General (the Strata Plan). A strata plan creates strata lots with defined upper and lower boundaries as well as lateral boundaries.[8] Sheet 8 showed the division of the second floor into eight strata lots including Lot 221 (Lot 221).
[8] Community Titles Act 1996 (SA) sections 6 and 9.
The Strata Plan did not contain any notations defining the boundaries of Lot 221, apart from identifying that the boundary between lot subsidiaries shown as “balcony” (ie the boundary between the balconies belonging to Lots 221 and 222) was a wall monument and the boundary between lot subsidiaries shown as entry (ie the boundary between the entries belonging to Lots 221 and 222) was a fence monument. The Strata Plan was silent as to whether any boundaries defined by reference to a wall or fence were located at the inner face, midpoint or outer face of the wall or fence.
Settlement of the purchase of the Purchaser’s Lot was scheduled for 15 February 2012. On that day, surveyor Chad Heinrich supervised by Robert Andrew completed a survey of Lot 221 as constructed on behalf of Mr Bruce and calculated its area at 122 square metres (measuring to the inner surface of exterior walls and the balcony balustrades). Mr Bruce refused to settle because Lot 221 as constructed was undersized.
For the purposes of the action, Baju engaged surveyor Ross Kennedy to survey and calculate the area of the Purchaser’s Lot as shown in the A0 plans. Mr Kennedy was also engaged to calculate the area of Lot 221 as constructed using two alternative methods of measurement. The first method of measurement was to the exterior of external walls and midpoint of common walls in accordance with the PCA Guidelines. The second method of measurement was to the inner surface of external and common walls in accordance with section 19(4) of the Act.
Mr Bruce contended in the action that the appropriate method of measurement was in accordance with section 19(4) of the Act. Baju contended that the appropriate method of measurement was in accordance with the PCA Guidelines. Mr Bruce contended that the western and northern boundaries of the balcony of Lot 221 were the eastern and southern faces of the balcony glass balustrades. Baju contended that they were the western and northern edges of the balcony concrete slab.
Ultimately, the relevant areas calculated using these different methods of measurement were ultimately agreed by the surveyors to be as follows:

The Purchaser’s Lot derived from the A0 plans Lot 221 as constructed

Basis PCA Section 19(4) PCA Section 19(4)

Balcony slab 131.3 123.0 132.6 123.8

Balcony balustrade NA[9] NA[10] 132.4 123.4
[9] The A0 plans did not show any balustrades.
[10] The A0 plans did not show any balustrades.
The Judge’s reasons

The Judge held that the Area Condition was not a condition precedent to settlement but an “Other Condition” within the meaning of the Contract defining Baju’s obligations. Mr Bruce challenges this conclusion on appeal.
The Judge held that the reference to “130 square metres” in the Concept Plan did not render it a term of the Contract that the area of the Purchaser’s Lot was to be 130 square metres. The Judge rejected Mr Bruce’s contention that the Concept Plan was an “Architectural Plan” as defined by the Contract because it was contained within Annexure A. The Judge held that the Disclaimer in the Concept Plan applied to the whole document and not just the illustrations, photos and CAD images and negated the Concept Plan having contractual force. The Judge held that the area of Purchaser’s Lot, for the purpose of the Area Condition, was to be ascertained by scaling from the A0 plans and not from the reference to “130 square metres” in the Concept Plan. Mr Bruce challenges this conclusion on appeal.
The Judge said that it could not be determined on the evidence whether the area of the Purchaser’s Lot was to be calculated according to section 19(4) of the Act or the PCA guidelines, nor could it be determined whether the additional area between the balcony balustrade glass and the edge of the balcony slab was to be included. Both parties challenge these conclusions on appeal.
The Judge said that the most conservative measurement of the area of Lot 221 as constructed was 123.4 square metres, which is only 0.1 square metres less than 130 square metres less the five per cent tolerance of 6.5 square metres. The Judge held that the difference of 0.1 square metres was insubstantial and incapable of justifying termination for breach at common law. Mr Bruce challenges this conclusion on appeal.
Condition precedent or promissory term
Mr Bruce contends that the Judge erred in holding that clause 4 of the Attachment was an “Other Condition” within the meaning of Item S and not a “Special Condition” within the meaning of Item R in the Schedule.
Clause 6 of the Terms & Conditions provides:
6. SPECIAL CONDITIONS
The party required to comply with a Special Condition must make every reasonable endeavour to do so. If the Special Condition is not complied with before the date specified in the Special Condition (or of no date is specified, within 21 days of the date of this Agreement) then,
6.1if the failure to comply with the Special Condition is not due to the neglect or default of the Vendor or the Purchaser, the Vendor or, unless the purchaser has waived such condition and communicated such waiver in writing to the Vendor or the Agent, the Purchaser, upon giving seven days’ written notice to the other party, may terminate this Agreement and upon its termination (unless the condition is complied with in the meantime) all monies paid under this agreement must be re-paid to the Purchaser and all rights and liabilities under this Agreement, will cease; or
6.2;if the failure to comply with the condition is due to the neglect or default of the Vendor or the Purchaser, the party not in default may terminate this Agreement. If the Vendor is in default, the Purchaser may, upon giving seven days’ written notice to the Vendor, terminate the agreement and all monies paid by or on behalf of the Purchaser must be repaid to the Purchaser upon the termination or otherwise clause 7.2 will apply. If the Purchaser is in default, clause 7.1 will apply.

Clause 8.10 provides:
8.10Other Conditions
The other terms and conditions set out in the Schedule ‘Other Conditions’ form part of this Agreement.
Clause 1.23 defines “Special Condition” to mean:
a special condition set out in the Schedule
Item R of the Schedule relevantly provides:
R.    Special Conditions [Clause 6]
This agreement is subject to:-
1.     FINANCE
The Lender agreeing …
2.     SALE AND SETTLEMENT OF THE PURCHASER’S PROPERTY
The Purchaser entering into a contract for the sale of the Purchaser’s property at…
3.     SETTLEMENT OF SALE OF THE PURCHASER’S PROPERTY
Settle of the sale of the Purchaser’s property at…
4.     OTHER
AS PER SPECIAL CONDITIONS ATTACHED
Item S of the Schedule provides:
S. Other Conditions [Clause 8.10]
AS PER SPECIAL CONDITIONS ATTACHED
The Attachment is entitled “SPECIAL CONDITIONS”. Clauses 1 and 2 make the sale and purchase of the Purchaser’s Lot conditional on the vendor obtaining development approval and finance, completing the development and obtaining deposit of the community plan. Clause 3.1.2 provides that (subject to satisfaction of the development approval and finance condition):
The Vendor will cause the Development Works to be undertaken in a proper and workmanlike manner generally in accordance with the Architect’s Plans and the Specifications and in compliance with the Development Approval.
Clause 4 relevantly provides:
4.     ACKNOWLEDGEMENTS
Purchaser’s Acknowledgements
4.1    The Purchaser acknowledges and agrees that prior to settlement the Vendor may make variations to the proposed Development and/or the proposed Development Works by making amendments to the size, materials, finishes, fittings, configuration and dimensions of or in the Purchaser’s Lot or other Lots within the Development or the Common Property or by varying the number of Lots within the Development.
…
4.4    Despite the foregoing provisions of this special condition 4, the Vendor may not without the Purchaser’s prior written consent:
4.4.1change the area of the Purchaser’s lot by more than 5%;
4.4.2make changes or substitutions in or to the materials, finishes or fittings in the Purchaser’s Lot which will have a material detrimental affect on the overall proposed finish or appearance of the Purchaser’s Lot.
Clause 26 defines Architect’s Plans to mean:
the plans prepared by LoucasǀZahos attached to this Agreement and marked Annexure “A”
Notwithstanding that the Attachment is entitled “Special Conditions”, the fact that both Items R and S refer to the “Attached Special Conditions” demonstrates unequivocally that the attachment in fact contains two different types of conditions, namely special conditions within the meaning of clause 6, which are conditions precedent to performance of the contract, and other conditions which are general terms and conditions of the Contract within the meaning of clause 8.10.
Clauses 1 and 2 of the Attachment contain conditions precedent governed by clause 6 of the Terms and Conditions. By contrast, clause 4 of the Attachment contains general terms and conditions of the contract, which have the same status as if they had been included with the terms and conditions contained in the standard Terms & Conditions. This is reinforced by the fact that clause 1 specifies the “Satisfaction Date” as the date for satisfaction of the Development Approval and Finance condition precedent and clause 2 specifies the “Proposed Date of Practical Completion” as the date for satisfaction of the Development Works completion and Community Plan Deposit conditions precedent. Clause 4 is not expressed as a condition precedent to settlement but rather as a term qualifying the obligation of Baju under clause 3.1.2 to undertake the Development in accordance with the Architect’s Plans and the Specifications.
It is clear that the phrase “Special Conditions” when used in the title of the Annexure uses the adjective “special” in contradistinction to “general” conditions contained in the Terms & Conditions rather than to designate a condition precedent within the meaning of clause 6 of the Terms & Conditions.
This ground of appeal is not established.
The 130 sqm term
Mr Bruce contends that the Judge erred in holding that the reference in the Concept Plan to “130 square metres” did not render it a term of the Contract that the area of the Purchaser’s Lot was to be 130 square metres.
On its face, the printed component of the Concept Plan does not appear to contain or comprise terms of the contract. On its face, the purpose of inclusion of the Concept Plan in the Contract is to include as a term of the Contract that wardrobes were to be included as part of the fixtures to be supplied by the vendor without extra cost (which was evidently handwritten onto the Concept Plan for that purpose). This appears from an objective examination of the document, leaving aside the extraneous evidence of Mr and Mrs Bruce that Ms Price handwrote the endorsement on the Concept Plan to confirm that robes were included in the price.
On its face, the printed component of the Concept Plan was prepared for marketing purposes rather than to give rise to contractual terms. This is conveyed by the glossy colour appearance of the document together with the existence and content of the disclaimer, which reads in full:
DISCLAIMER: Illustrations, photos and CAD [computer-assisted drawn] images are indicative only and do not represent the final outcomes of this project. Prospective purchasers must rely on their own enquiries and independent advice before signing a contract. This printed item does not constitute an offer or contract. Antunes Group, Loucas Zahos, the relevant vendor and their agents do not accept any liability for any incorrect information or omissions.
The documents which on the proper construction of the Contract are designated as the “Architect’s Plans” perform a critical function in defining the contractual rights and duties of the parties. Together with the Specifications, they not only define the primary subject matter of the Contract (the Purchaser’s Lot) but they also define the Development of which the Purchaser’s Lot is to be part and which is the secondary subject matter of the contract. Objectively, the parties would not be expected to designate as the “Architect’s Plans” two quite separate types of plan: one being a set of formal architectural plans with a scale and the other being an informal concept plan. This is especially so as otherwise there would be a risk of inconsistency between the two types of plan with no method of resolution which was paramount. This is reinforced by the title of annexure A as “Architect’s Plan”.
The Concept Plan is incapable of performing the role of the “Architect’s Plans”. A strata unit must be defined by reference to the adjoining lots on the same floor, the lots below it (where applicable) and the lots above it (where applicable). Lot 221 adjoins Lot 222 and common property and is above the first floor and below the third floor lots. The A4 plans show adjoining property and property above and below Lot 221. The Concept Plan does not do so. In addition, the A4 plans show the carparks, while the Concept Plan does not, in circumstances in which the Contract encompassed not only the apartment on the second floor but two carparks.
In addition, if the parties had intended to include as a term of the Contract that the area of the Purchaser’s Lot was to be 130 square metres, it may be expected that they would have included it as a specific term so expressed rather than by the cryptic method of reference on a concept plan to an area.
It is true that clause 4.4 of the Attachment proceeds on the premise that the area of the Purchaser’s Lot is specified in the Architect’s Plans and/or Specifications because otherwise the five per cent condition would be rendered meaningless. However, the area of the Purchaser’s Lot can be ascertained from the A4 plans because they are manifestly drawn to scale and derived from the A0 plans and contain a 1:100 scale apposite to the A0 plans (which translates to a scale of 1:400 apposite to the A4 plans).
It is true that the Concept Plan was included as a document behind Annexure A. However, given the other considerations, on the proper construction of the Contract this was happenstance and merely reflects the prosaic fact that it is a plan.
This ground of appeal is not established.
The area of the apartment
It is not strictly necessary to decide the apartment area issue as it only arises if it was a term of the Contract that the area of the Purchaser’s Lot was to be 130 square metres. However, as it was fully argued, I address it for completeness on the assumption that this term had been established.
Internal v external/midpoint measurement
Both parties contend that the Judge erred in concluding that it could not be determined on the evidence whether the area of the Purchaser’s Lot was to be calculated according to section 19(4) of the Act or the PCA guidelines. Mr Bruce contends that the Judge should have found the former and Baju contends that the Judge should have found the latter. Both contentions are misconceived.
If it was a term of the Contract that the area of the Purchaser’s Lot was to be 130 square metres, this was necessarily a reference to the actual area of Lot 221 in accordance with the legal title, which could only be determined by reference to the Strata Plan. The position is the same as if it were a term of a contract for the sale of a residential allotment of land that the area was 800 square metres. The issue of breach would depend simply on the actual area of the land conveyed, with the boundaries legally defined by the certificate of title and relevant deposit plan and, assuming they defined the title boundaries as the boundary fences, the area would be determined by surveyors by reference to the actual legal title.
The boundary of a strata lot is defined by the relevant strata plan deposited by the Registrar-General. Strata lots must have defined upper and lower boundaries as well as lateral boundaries.[11] Because legal title to strata lots, like other land under the Real Property Act 1886 (SA), depends on registration, the identity of a strata lot (including its lateral, upper and lower boundaries) must be ascertainable from the face of the strata plan. It cannot be ascertained from an extraneous document such as a contract for the sale of a lot. Section 19 of the Act permits the person lodging a strata plan to define the boundaries of a strata lot by rules of the person’s choosing disclosed on the face of the plan, but because certainty of identity of each lot is required, subsection 19(4) creates default rules which define the lateral boundaries of a strata lot by reference to the inner face of the walls and fences which bound the lot and the vertical boundaries by reference to the upper surface of the floor and lower surface of the ceiling or roof of the lot in the absence of disclosure of other rules.
[11] Community Titles Act 1996 (SA) sections 6 and 9.
Section 19 of the Act relevantly provides:
19—Special provisions relating to strata plans
(1)A strata plan must divide the building on the community parcel (or, if there is more than one building, at least one of them) so as to create at least one lot that is situated above another lot in the building.
…
(3)     A strata lot—
(a)     may be below, on or above the surface of land; and
(b)     may be wholly on one storey or partly on one storey and partly on another or others; and
(c)     must have upper and lower boundaries as well as lateral boundaries that are defined by reference to parts of the building; and
(d)     may include an area (a lot subsidiary) within the building or comprising land outside the building to be used for a purpose that is ancillary to the purpose for which the rest of the lot is to be used.
(4)Subject to any explicit statement to the contrary in a strata plan, the following principles apply to the definition of a lot by strata plan—
(a)     where a boundary is defined by reference to a wall or fence—the boundary is the inner surface of the wall or fence;
(b)     where a boundary is defined by reference to a floor—the boundary is the upper surface of the floor;
(c)     where a boundary is defined by reference to a ceiling or roof—the boundary is the under surface of the ceiling or roof.
The Strata Plan for the Development deposited by the Registrar-General on 1 February 2012 showed the division of the second floor into eight strata lots including Lot 221. The Strata Plan did not contain any notations defining the lateral boundaries of Lot 221 which comprised walls or fences as the inner face, midpoint or outer face.
There being no explicit statement to the contrary in the Strata Plan, the boundaries of Lot 221 that are determined by reference to walls and fences are the inner surfaces pursuant to section 19(4)(a).
The Judge erred in concluding that this could not be determined. This ground of appeal is established.
Westernmost measurement
Both parties contend that the Judge erred in concluding that it could not be determined on the evidence whether the additional area between the balcony balustrade glass and the edge of the balcony slab was to be included. Mr Bruce contends that the Judge should have found that it was not and Baju contends that the Judge should have found that it was.
The boundary of the balcony on its western and northern sides is defined by the Strata Plan, just as are all other boundaries of Lot 221. The Strata Plan does not show any glass balustrades on the balcony.[12] In the absence of any reference to glass balustrades, the balcony boundaries must be defined by reference to the edge of the slab comprising the floor of the balcony.
[12] The Strata Plan shows a planter box at the western end of the Lot 221 balcony. Mr Andrew gave evidence, and it was common ground at trial, that the reference to a planter box was irrelevant to the definition of the western boundary of the balcony.
Section 241 of the Real Property Act 1886 (SA) empowers the Registrar-General to impose requirements as to the dimensions, scale and information included in plans lodged for registration. The Registrar-General issues Plan Presentation Guidelines which contain requirements for plans lodged for deposit. Chapter 9 of the Plan Presentation Guidelines addresses Community Plans. Chapter 9 of version 6 (issued in August 2014) was tendered at trial. While this was self-evidently not the version in force in February 2012 when the Strata Plan was lodged, in the absence of evidence to the contrary it must be assumed that the earlier version was relevantly in the same terms.
Paragraph 9.23.1 provides that lateral boundaries of a lot subsidiary may be defined by monument or data or a combination of the two. No relevant data is shown on the Strata Plan to define the western or northern boundaries of the balcony belonging to Lot 221 and hence they must be defined by reference to monuments. Paragraphs 9.23.2 and 9.26.7 provide that a label must be shown where a lot subsidiary boundary is a monument and not a structural component of the building. Examples of non-structural monuments given include fences: this is made clear by figure 9.13 which gives an example of a fence as a non-structural monument that must be labelled. A glass balustrade is a species of fence. The absence of any label on the Strata Plan referring to a glass balustrade or fence confirms that the glass balustrade is not the boundary.
The Judge erred in concluding that this could not be determined. The alternative contention by Baju is established on the evidence adduced at the trial was 123.8 square metres.
Was the breach insubstantial?
It is not strictly necessary to decide the substantial breach issue as it only arises if it was a term of the Contract that the area of the Purchaser’s Lot was to be 130 square metres and the actual area of Lot 221 was only 123.4 square metres. However, as it was fully argued, I address it for completeness on the assumption that this term had been established and the actual area was 123.4 square metres.
The Judge said that 123.4 square metres is only 0.1 square metre less than 123.5 square metres (130 square metres less the five per cent tolerance of 6.5 square metres). The Judge held that the difference of 0.1 square metre was insubstantial and incapable of justifying termination for breach at common law. Mr Bruce challenges this conclusion on appeal.
There is an old established principle that a purchaser only has a right to terminate for breach of contract by reason of a difference between the property the vendor promised to transfer and the property the vendor is able to transfer when the difference is substantial.[13]
[13] Tiplady v Gold Coast Carlton Pty Ltd (1984) 3 FCR 426 at 445-446 per Fitzgerald J; Higgins v Statewide Developments Pty Ltd [2010] NSWSC 183, (2010) 14 BPR 27,293 at [47]-[52] per Barrett J; Frankel v Paterson [2015] NSWSC 1307, (2015) 18 BPR 35,391 at [44]-[54] per Young AJA.
The Judge proceeded on the basis that it was a term of the Contract that the area of Purchaser’s Lot would be at least 123.5 square metres (130 less 5%) and a deficiency of 0.1 square metres would be insubstantial. However, the contractual term breached by Baju on the current premises was the 130 sqm term that the area of the Purchaser’s Lot was to be at least 130 square metres. Constructing an apartment of only 123.4 square metres is a substantial breach of that term.
Clause 4.1 of the Attachment confers on Baju a conditional power to amend the size and dimensions of the Purchaser’s Lot. This power is subject to the condition contained in clause 4.4 that an amendment not change the area of the Purchaser’s Lot by more than five per cent without Mr Bruce’s prior written consent. As this condition was not satisfied, Baju lacked power to amend the area of the Purchaser’s Lot. The appropriate comparison was between the contractual requirement of an area of 130 square metres and the actual area of 123.4 square metres. Assuming that the 130 sqm term was an intermediate term and not an essential term, this was a sufficiently serious breach to justify termination.
The Judge erred in concluding that any breach was insubstantial. This ground of appeal is established.
Conclusion
I would dismiss the appeal.
HINTON J:
Introduction
In March 2010, Craig Bruce, the appellant, entered into a contract with Baju Henley Square Pty Ltd (Baju) for the sale and purchase, “off the plan”, of community Lot 221 being a yet-to-be-constructed apartment in a building located at Henley Beach to be known as the H₂O Apartments. Construction was undertaken during 2011. On 19 December 2011, Mr Bruce was advised that construction of Lot 221 had reached practical completion. Settlement was then set for 15 February 2012. It did not eventuate. Rather, Mr Bruce served a notice of termination upon Baju. That notice purported to terminate the contract because, in effect, Mr Bruce considered that he did not stand to get what he had agreed to pay for, namely, an apartment with an area of no less than 123.5 m². Baju responded by serving a notice to complete upon Mr Bruce, nominating a fresh settlement date of 13 March 2012. Again Mr Bruce did not settle. Instead he served a second notice of termination upon Baju which purported to terminate the contract on the grounds that relevant development approvals had not been obtained by the nominated date.
Faced with the notices of termination, Baju instituted proceedings seeking an order for specific performance.
In this Court Mr Bruce did not dispute that Baju was ready, willing and able to deliver title on both 15 February 2012 and 13 March 2012, and remained ready, willing and able to do so throughout the proceedings. Rather by cross-claim he sought declarations that Baju had breached the area condition contained in the contract, which was subject of the first notice of termination, and the approvals condition contained in the contract, which was subject of the second notice, with the consequence that he was entitled to an order for the return of his deposit plus interest, or, alternately, damages for breach of contract. It followed that the outcome of the trial in this Court turned on the question of whether either of the notices issued by Mr Bruce had validly terminated the contract. The trial Judge held that neither did.

Mr Bruce now appeals.
The appeal is confined to the trial Judge’s treatment of the first notice of termination. Accordingly, nothing more need be said regarding the second notice and hereafter any reference to ‘the notice’ is to be taken as a reference to the first notice of termination unless otherwise indicated.
Success on appeal depended upon establishing that a concept drawing referring to Lot 221 as having an area of 130 m² comprised part of the contract and was promissory in effect, and that the area of Lot 221 as built was not only less than the promised 130 m², but exceeded the permitted variation tolerance of 5% as contained in special condition 4.4.1. This latter point necessitated identification of the approach to be applied in calculating the area of Lot 221 contemplated by the contract. The parties offered two alternatives; Mr Bruce argued that the area of the lot should be calculated in accordance with s 19(4) of the Community Titles Act 1996 (SA) (the CTA method), in which case, where the boundary of the lot was comprised of a wall or fence, the boundary was taken as the inner surface of such wall or fence. Baju submitted that the boundary was to be determined in accordance with the Property Council of Australia Ltd guidelines entitled, “Method of Measurement for Residential Property” (the PCA method), in which case, if the boundary was comprised of a shared wall, area was to be measured from the centre line of the wall, and if it was an external wall, from the external finish of the dominant portion of the wall. It is immediately apparent that the PCA method will produce a result as to area for a given building greater than that arrived at if area was calculated in accordance with the CTA method.
The trial Judge held that she could not determine which of the two methods was to be applied. That left her Honour with two measurements as to the area of Lot 221 – utilising the PCA method the area of Lot 221 was calculated as 132.40 m²and thus compliant with the permitted variation tolerance, whereas using the CTA method the area of the lot was 123.35 m², exceeding the permitted variation tolerance by .15 m². Her Honour decided that the latter, if it amounted to a breach of the contract, was insubstantial.
As indicated, to succeed on appeal Mr Bruce had to establish that the concept drawing was of promissory effect as to the area of Lot 221, that the CTA method was the correct method to apply in calculating the area of the lot, and that applying that method gave a result as to the area of the lot exceeding the variation tolerance such as to amount to a breach of contract entitling Mr Bruce to terminate the contract as he had purported to do.
In a notice of contention Baju submitted that the PCA method to determining the area of Lot 221 was the correct method and that the trial Judge should have so found. Further, and in the alternative, Baju contended that even if the CTA method was the correct method, it was incorrectly applied in that the boundary to the apartment balcony was not the inner face of the glass balustrade but the edge of the slab external to the balustrade, in which case the area of Lot 221 would have fallen within the permitted variation tolerance. Lastly, and in the further alternative, Baju contended that if the trial Judge was right in that no positive finding could be made regarding the approach to be applied in determining the area of Lot 221 for the purposes of the contract, then the trial Judge should have concluded that Mr Bruce had failed to discharge the onus of proving that the area of the lot was not within 5% of 130 m².
I would dismiss the appeal. My reasons follow.
The contract, the notices of termination and the notice to complete
Mr Bruce and his wife gave evidence at trial. They told the Court of how it was that Mr Bruce came to enter into the contract for the purchase of a three bedroom apartment located on the second floor of the then yet to be built H₂O Apartments at Henley Beach. They also gave evidence of their inspection of that apartment late in December 2011. They admitted to being disappointed with what they saw. Mr Bruce gave evidence that he and his wife decided to sell the property at the right price and to this end instructed an agent.
In the meantime settlement had been fixed for 15 February 2012.
In the course of arranging finance to complete the purchase of the apartment, Mr and Mrs Bruce were informed by Citibank that its valuer had measured the area of the apartment as being 110 m². That caused Mrs Bruce to ask her father to measure the area of the apartment. His calculation, like that of Citibank’s valuer, produced a result less than the 130 m² that the Bruces were expecting. Mr Bruce then retained surveyors to conduct an internal measurement survey. The surveyors provided their report to the Bruces on the day of settlement. The surveyors reported the internal area of the apartment to measure 122 m². As mentioned, settlement did not occur. The Bruces sought legal advice and, on 20 February 2012, purported to terminate the contract by the issue of the first notice of termination to which reference has already been made.
At this juncture it is convenient to say something about the contract of sale and purchase executed by the parties.
The contract was a Real Estate Institute of South Australia (REISA) standard form residential contract adapted to meet the purposes of the parties. It was comprised of five documents:
i.The REISA Residential Contract standard terms and conditions and Residential Contract Schedule (together comprising Form: 2100 v8.04.05) as amended by the parties and executed on 1 March 2010.
ii.A document entitled “Special Conditions”.
iii.Annexure A – comprising the concept drawing to which reference has already been made and a bundle of eight architectural plans including six plans and two elevations, each bearing the title “Contract Set” and individually labelled SK4503, SK4507, SK4508, SK4509, SK4510, SK4511, SK4512 and SK4513. On SK4510 Lot 221 is highlighted in pink and bears Mr Bruce’s signature.
iv.Annexures B (Guarantee and Indemnity), C (Schedule of Finishes, Fixtures and Fittings), D (Indicative Scheme Description), E (Indicative Primary and Secondary Residential By-Laws).
v.Form 1 – Vendor’s Statement.
The five documents were held together by a bulldog clip. Once the clip was removed the documents comprising Annexure A were held together by a paper clip.
Clauses A, B, C and D of the Residential Contract Schedule (the Schedule) to the REISA Residential Contract (the contract) identified the vendor, the vendor’s agent, the purchaser and the land subject of the sale and purchase. The subject land was identified as “proposed community Lot 221 as shown in the attached Architect’s Plan including 2 carpark(s)”.[14] The Schedule also identified the land to be divided into community allotments, including Lot 221, as the whole of the land comprised in Certificate of Title, Register Book Volume 6044 Folio 756, and a portion of the land in Certificates of Title, Register Book Volume 6044 Folio 757 and Volume 5981 Folio 473, such land being situated at 348 Seaview Road, Henley Beach.[15] The purchase price for proposed community Lot 221 was $1,190,000 less a deposit of $119,000.[16] For that price the purchaser, Mr Bruce, was also to receive the finishes, fixtures and fittings set out in Annexure C.[17]
[14] Schedule, clause D.
[15] Schedule, clause D.
[16] Schedule, clauses H and I.
[17] Schedule, clause E.
The primary obligation borne by the vendor under the contract was to deliver title to Lot 221 at settlement.[18] That obligation was conditioned on the discharge of Special Conditions.[19] Clause 1.23 of the contract defined Special Conditions to mean those set out in the Schedule. Clause 2 of the contract, when read with the definition of Special Condition contained in clause 1.23, sends the reader to clause R of the Schedule. Clause R bears the heading “Special Conditions [Clause 6]”. Clause R is to be contrasted with clause S which bears the heading “Other Conditions [Clause 8.10]”. It is apparent then that the Schedule distinguishes between two different types of conditions and that clauses 6 and 8.10 apply to one or other type.
[18] Contract, clause 2.
[19] Contract, clause 2.
The attachment entitled Special Conditions reveals that the sale and purchase was conditioned upon the vendor obtaining development approval and finance, completing the Development Works, being all works necessary to complete the construction of the development including fit out works, and causing the proposed Community Plans of Division to be deposited in the Lands Titles Office, Adelaide, by the Registrar-General.[20] The development was defined as meaning the erection of all improvements on the development land in relation to Stage 1A substantially in the form proposed in the Architect’s Plans.[21] The development land was defined, in turn, to mean the whole of the land comprised in Certificate of Title, Register Book Volume 6044 Folio 756, and a portion of the land in Certificates of Title, Register Book Volume 6044 Folio 757 and Volume 5981 Folio 473.[22] Further, Stage 1A was defined to mean the residential, retail and commercial improvements substantially in the form proposed in the Architect’s Plans, other than Stage 1, situated to the south of Stage 1.[23] Importantly, the relevant Architect’s Plans were defined as the plans prepared by Loucas Zahos and attached to the contract and marked Annexure A.[24]
[20] Special conditions 1.1, 2.1 and 26.
[21] Special condition 26.
[22] Special condition 26.
[23] Special condition 26.
[24] Special condition 26.
The attachment entitled Special Conditions also imposed a duty upon the vendor to use its reasonable endeavours to complete the development works by the proposed dated of practical completion, being 31 December 2014,[25] and cause the development works to be undertaken in a proper and workmanlike manner generally in accordance with the Architect’s Plans and the Specifications[26] and in compliance with the Development Approval.[27]
[25] Special condition 26.
[26] Defined in special condition 26 as meaning the schedule of finishes, fixtures and fittings attached to this Agreement and marked Annexure “C” together with any agreed variations.
[27] Special condition 3.1.
In this case Mr Bruce purported to terminate the contract relying upon clause 6.2 of the contract. Clause 6 provided:
6. SPECIAL CONDITIONS
The party required to comply with a Special Condition must make every reasonable endeavour to do so. If the Special Condition is not complied with before the date specified in the Special Condition (or if no date is specified, within twenty one (21) days of the date of this Agreement) then,
6.1 if the failure to comply with the Special Condition is not due to the neglect or default of the Vendor or the Purchaser, the Vendor or, unless the Purchaser has waived such condition and communicated such waiver in writing to the Vendor or the Agent, the Purchaser, upon giving seven days’ written notice to the other party, may terminate this Agreement and upon its termination (unless the condition is complied with in the meantime) all monies paid under this Agreement must be re-paid to the Purchaser and all rights and liabilities under this Agreement, will cease; or
6.2 if the failure to comply with the condition is due to the neglect or default of the Vendor or the Purchaser, the party not in default may terminate this Agreement. If the Vendor is in default, the Purchaser may, upon giving seven days’ written notice to the Vendor, terminate the Agreement and all monies paid by or on behalf of the Purchaser must be repaid to the Purchaser upon the termination or otherwise clause 7.2 will apply. If the Purchaser is in default, clause 7.1 will apply.
The relevant default relied upon by Mr Bruce was the breach of the area condition contained in special condition 4.4.1. It states:
4.4 Despite the foregoing provisions of this special condition 4, the Vendor may not without the Purchaser’s prior written consent:
4.4.1 change the area of the Purchaser’s Lot by more than 5%;
…
Enough has been said of the content of the contract to show that it was a contract for the purchase of an allotment within a structure to be built substantially in the form proposed in the Architect’s Plans annexed to the contract and generally in accordance with those plans.
It was an agreed fact at trial that when Mr Bruce’s solicitor received the contract from Mr Bruce, Annexure A comprised not only the eight pages of architectural plans but included a concept drawing (the Drawing). That Drawing had the following features:
i.In the top left hand corner there is printed the number “2.21”, signifying apartment 221, beneath which is written, “Area Total: 130 sqm”;
ii.In the top right hand corner is a logo beneath which is printed, “H₂O Apartments”, and beneath that, “Henley Beach”.
iii.From left to right across the middle of the drawing there is drawn a coloured floorplan of a 3 bedroom apartment bearing the number 221.
iv.Immediately beneath the floorplan and to the left hand side of the drawing there is a signature which the evidence established belonged to Mr Bruce.
v.Immediately beneath the floorplan and to the right hand side of the drawing there is handwritten the following, “Robes to be included in price”.
vi.From left to right across the bottom of the floorplan the following information is contained in a shaded banner:
a.     a skeletal diagram indicating the position of apartment 221 vis-a-vis the sea and the city/hills;
b.     a series of measurements for the lounge/dining area, kitchen, balcony, master bedroom, bedroom 2 and bedroom 3;
c.     the name of the architects, Loucas Zahos;
d.     the location or address of the proposed apartments and
e.     a disclaimer.
At trial and on appeal Mr Bruce relied upon the content of the Drawing and its inclusion in Annexure A as containing the promise that Lot 221 would have an area of 130 m². In this connection the Notice of Termination stated:
E.    For the purposes of the Condition, the area of the Purchasers Lot, namely Lot 221, is 130 square metres (the Prescribed Area), being the area indicated on the Architect’s Plan (as defined in clause 26 of the Special Conditions), incorporated in the Contract pursuant to clause 3.1.2 of the Special Conditions and attached as part of Annexure A to the Contract.
F.    The area of Lot 221 is in fact 122 square metres as evidenced by the survey report of Andrew & Associates dated 15 February 2012, a true copy of which is annexed to this Notice and marked “A”.
G.    The area of Lot 221 is more than 5% smaller than the Prescribed Area.
H.    The Vendor did not obtain my prior written consent to change the Prescribed Area of Lot 221 by more than 5%.
As indicated the “Condition” to which paragraph E of the Notice of Termination reproduced above is the variation tolerance condition contained in special condition 4.4. And, as also indicated, in purporting to terminate the contract for breach of special condition 4.4.1 Mr Bruce relied upon clause 6.2 of the contract.
At trial, and on appeal, it was contended that despite special condition 4.4 being contained in the Special Conditions it was not as a matter of construction a special condition to which clause 6 applied. In this regard it was argued that the Special Conditions contained both special conditions within the meaning of clause R of the contract and other conditions within the meaning of clause S. Clause 6 in the schedule to the contract only applied to clause R special conditions. Baju argued that clause 6 was concerned with promises contingent upon events or circumstances that were not ultimately within the power of the purchaser or vendor to bring about, although they could influence the likelihood of the event or circumstance occurring by the exercise of their best endeavours. Such conditions were to be contrasted with those that were promissory but not conditional upon an event or circumstance first occurring. Special condition 4.4, Baju contended, fell within this class and as such it was not a clause R special condition breach of which was actionable under clause 6.
On 24 February 2012, Baju served the Notice to Complete to which reference has already been made on Mr Bruce, nominating 13 March 2012 as the fresh date for settlement. Again, as mentioned, Mr Bruce did not settle, but issued a second Notice of Termination.
On 7 June 2012, Baju instituted proceedings in this Court for specific performance. Mr Bruce responded by instituting a cross-action seeking the remedies to which reference has already been made on the basis that special condition 4.4.1 had been breached.
The trial Judge’s findings
At trial the first issue, namely that of whether the Drawing was of promissory effect as to the area of Lot 221, raised a question of construction of the contract. Mr Bruce relied upon the content of the Drawing and the inference to be drawn from the fact of its location in Annexure A. Further, he relied upon the inference suggested by the fact that the Drawing contained an additional handwritten term, namely, the inclusion of robes as initialled by him at the time of the execution of the contract. Baju conceded that the Drawing was of promissory effect as to the robes but not otherwise. Baju relied upon the disclaimer contained in the Drawing and contended that giving full force and effect to the terms of the disclaimer denied the Drawing promissory effect as to the area of the lot.
The trial Judge observed that whilst the Drawing was located in the contract documents at the time of the receipt of the contract by the Bruces, neither Mr Bruce nor Mrs Bruce could say where in the contract it was located.[28] Her Honour also noted the agreed fact that when the Bruces’ solicitor was given the contract by Mr Bruce, Annexure A was comprised of a front sheet endorsed, “Annexure “A” Architect’s Plans,” followed by the Drawing and then eight architectural plans.[29] Her Honour held:[30]
Mr Bruce said the disclaimer only relates to the images and illustrations on the Drawing and further the Drawing is the only stipulation as to area. I do not agree. The document must be read as a whole. The whole of the Drawing gives an indication or visualisation of the internal layout, the orientation and the dimensions of Lot 221. The text or annotations assist to illustrate the diagrams. By reference to the disclaimer, it is a document intended for “prospective purchasers”. It assists prospective purchasers visualise the yet to be built apartment. It is a preliminary introduction to the layout and orientation of the apartment. The words and annotations are part of the illustration of the Drawing. They, like the internal layout diagram and the diagram showing the position of Lot 221 in the building, are part of computer-assisted drawn images and/or illustrations. Accordingly, the disclaimer applies to the whole of the document. As such, prospective buyers to whom this document is directed must, as mandated by the disclaimer, rely on their own enquiries and independent advice before signing a contract. The words of the Drawing are clearly not of promissory effect.
It is worthy of note that, unlike the Drawing, the Architect’s Plans do not bear any disclaimer. It follows that it is the Architect’s Plans that are of contractual effect. …
[28] Baju Henley Square Pty Ltd v Bruce [2015] SASC 169 at [148].
[29] Baju Henley Square Pty Ltd v Bruce [2015] SASC 169 at [148].
[30] Baju Henley Square Pty Ltd v Bruce [2015] SASC 169 at [152]-[153].
One further argument advanced by Mr Bruce on this issue was to the effect that one was driven to concluding that the Drawing was of promissory effect because the area of the Lot could not be determined from the eight architectural plans included in Annexure A. The trial Judge rejected this contention. She concluded that the scale contained in the architectural plans was amenable to conversion thereby permitting the area, location, common property and location of carparks of Lot 221 to be discerned. Her Honour also accepted that the warning on the plans – “Do not scale. Use figured dimensions only” – was an instruction to builders given in recognition that the plans were not final construction drawings. Accepting this, it was not the case that the architectural plans did not indicate a total area for Lot 221.

Despite her conclusion that the Drawing was not of promissory effect the trial Judge proceeded to consider what the area of Lot 221 was in the event that she was wrong. That then raised a second question of construction – what method of measurement did the contract contemplate would be applied for the purpose of determining the area of Lot 221? No particular method of measurement was specified in the contract. As mentioned, Mr Bruce contended that under the contract area was to be determined in accordance with the CTA method, whilst Baju contended that area was to be measured applying the PCA method.
The essential difference between each method has been summarised above.
In addition to the question of which method of determining the area of Lot 221 was the appropriate method, there also arose questions as to whether account need be taken of nibs and internal protrusions into air space and whether the balcony should be measured to the inner surface of the balustrade or to the edge of the concrete slab that comprised its floor. The trial Judge received expert evidence on these issues and the results of surveys conducted using the different methods. The trial Judge summarised the effect of that evidence as follows:[31]
[31] Baju Henley Square Pty Ltd v Bruce [2015] SASC 169 at [139].
Bearing in mind that it is Mr Bruce’s case that he was promised an apartment with an area of 130 square metres and it is Baju’s case that:
·measured in accordance with the Residential PCA Guidelines the area of Lot 221 is 132.40 square metres; and
·measured in accordance with the CTA the measurement is 123.78 square metres,
the tables below set out the various areas of Lot 221 referred to in evidence. The first table sets out the area promised by the Architect’s Plans. The second sets out the actual area following construction.

Area promised (Architect’s Plans per contract) Property Council Guidelines CTA basis

Scaled from Architect’s Plans 131.30 sqm 123.00 sqm

Actual area (as built) Property Council Guidelines CTA basis

Survey measurements 132.40 sqm 123.40 sqm

Survey measurements excluding nib walls 123.35 sqm

Survey measurements including to edge of slab on balcony 123.78 sqm

Survey measurements including to edge of slab on balcony excluding nib walls 123.73 sqm

The trial Judge held that she was unable to determine whether the additional area to the edge of the slab of the balcony should be included in the calculation of area. Further, her Honour held that the state of the evidence was such that she could not determine the appropriate method by which to determine the area of Lot 221. She said:[32]
It is clear the appropriate PCA Guidelines to use are the Residential PCA Guidelines. However, the state of the evidence is such that I am unable to determine whether the area of Lot 221 should be calculated according to the CTA or according to the Residential PCA Guidelines. It follows that I can make the following findings:
·measured in accordance with the CTA, the actual area of Lot 221 is 123.40 square metres; and
·measured in accordance with the Residential PCA Guidelines, the actual area of Lot 221 is 132.40 square metres.
[32] Baju Henley Square Pty Ltd v Bruce [2015] SASC 169 at [144].
The trial Judge found that if she was wrong and the Drawing was of promissory effect as to the area of Lot 221 then, applying the PCA method, the area of Lot 221 as constructed did not offend special condition 4.4.1, but did offend that clause if area was to be determined applying the CTA method. The trial Judge concluded:[33]
If I am wrong and the Drawing is of contractual effect, the difference between 130 square metres less five per cent and the area of Lot 221 as built including the nib walls is 0.1 square metres. If the nibs are excluded, the difference is 0.15 square metres. If there is a breach of the Area Condition it is insubstantial.
[33] Baju Henley Square Pty Ltd v Bruce [2015] SASC 169 at [158].
On the question of whether special condition 4.4.1 was a special condition to which clause 6 of the contract applied, the trial Judge recorded that, had she held that the Drawing was of contractual effect and special condition 4.4.1 had been contravened, then she would have further held that Baju had breached one of the Other Conditions referred to in clause 8.10 of the contract rather than one of the Special Conditions to which clause 6 of the contract applied. She said:[34]
An alleged breach of Special Condition 4.4.1 does not entitle Mr Bruce to invoke clause 6 of the REISA terms and conditions. Special Condition 4.4.1 is not one of the Special Conditions clause 6 addresses. It imposes an obligation on Baju not to change the area by more than five per cent without consent. In my view, if Special Condition 4.4 is contravened Baju will have breached one of the “Other Conditions” of the Contract. The consequences of any such breach fall to be considered in accordance with general law principles.
[34] Baju Henley Square Pty Ltd v Bruce [2015] SASC 169 at [82].
The appeal and the notice of contention
On the hearing of the appeal senior counsel for Mr Bruce reduced the issues raised by the grounds of appeal to the following four questions:
i.Is the Drawing of contractual effect?
ii.If the answer to the first question is in the affirmative, is the Drawing to be construed as referring to an area to be determined in accordance with the CTA method?
iii.If the answer is in the affirmative to each of the first two questions, was Mr Bruce entitled to rely on clause 6 of the contract to terminate for breach?
iv.If Mr Bruce was not entitled to rely on clause 6, was he nonetheless entitled to terminate the contract under the general law?
Mr Bruce commenced his argument on the first question with the contention that the trial Judge erred in concluding that it was not clear from the evidence where the Drawing was located within the contract documents. This error, he contended, was contributed to by the trial Judge’s treatment of the Drawing as a document separate and distinct from Annexure A which, in turn, infected her treatment of the construction question.
With respect to the first question, senior counsel accepted that to succeed it was incumbent upon Mr Bruce to demonstrate that where the Drawing states “2:21 Area Total: 130 sqm^”it warranted that Lot 221 shall have an area of 130 m². In this connection, relying upon the agreed fact that the Drawing was provided by Mr Bruce to his solicitor in a form suggesting that it was incorporated within Annexure A, and relying upon the absence of any challenge to the contention that it formed part of Annexure A, it was submitted that the trial Judge should have found that the Drawing was indeed a component of Annexure A and that, as such, it answered the description of Architect’s Plans contained in the definition of that term in special condition 26. It then followed, it was submitted, that the content of the Drawing was such that it amounted to a warranty as to the area of Lot 221. As to the disclaimer endorsed on the Drawing, counsel contended that it was to be read strictly and as such did not apply to the guarantee as to area but only in relation to “illustrations, photos and CAD images”. Mr Bruce further submitted that the trial Judge’s conclusion that one could scale up from the eight architectural plans was erroneous in that it was contrary to the express admonition endorsed on each of the drawings – “Do not scale. Use figured dimensions only” – and was contrary to the implication to be drawn from the fact that whilst the architectural plans, which were A4 size, contained a scale, 1:100 @ A0, suggesting that the A0 plans formed no part of the contract, in their A4 state they were to be taken as a statement of the development and the location of Lot 221 within that development. Accepting this, the Drawing contained the only statement as to the area of Lot 221 in the contract, a fact suggesting that it was intended to be promissory.
Baju contended that to accept Mr Bruce’s argument was to elevate the Drawing in significance over and above the eight architectural plans where nothing suggested that it was appropriate to do so. It posed the rhetorical question, “Why would one construe a one page concept drawing in a particular way so as to require a construction at odds with the detailed architectural plans by reference to which, subject to the contract, the developer is expected to build and issue community titles?” This question is asked in the context of Mr Bruce not only contending that the Drawing guaranteed an apartment of 130 m², but did so as determined in accordance with s 19(4) CTA. If that is right, it was said, it has the consequence of introducing into the contract tension between the Drawing and the architectural plans in that the latter depict an area approximating 130 m²determined applying the PCA method, where principle demands that all clauses of a contract be construed harmoniously. Following this line of reasoning, because the architectural plans adopted a particular method of determining area where the Drawing was silent, if the Drawing is of promissory effect then it should be construed as the product of the same method.
As for the disclaimer, Baju submitted that the illustrations contained in the Drawing could not be considered in isolation from the related text. As the disclaimer described the illustration as indicative only, clearly the text necessarily associated with the illustration was likewise to be taken as indicative. This could be tested by asking, if the “floorplan illustration is ignored, to what is the total area referring?” Further, and in any event, the disclaimer read as a whole applied to the entire content of the Drawing.
With respect to the second question Mr Bruce contended that it was implicit in the usage in the contract of the language of the CTA such as, for example, “purchaser’s lot”, and the fact that the contract was for the construction, sale and purchase of a community lot that the CTA method of determining the area of the lot was the method contemplated by the contract. By contrast, the contract makes no reference to the Property Council of Australia Guidelines. Thus, it was contended, the trial Judge should have concluded that the area of Lot 221 was to be determined applying the CTA method. In response Baju pointed to the architectural plans – it was an apartment constructed in conformity with those plans that was to be delivered irrespective of how the area of such apartment was to be determined. Further, even if this was incorrect, the Drawing had to be construed in a manner consistent with the architectural plans.
On the hearing of the appeal, counsel for Mr Bruce conceded that if the A4 plans had the effect of incorporating the A0 plans from which they were derived into the contract, there was an inconsistency between the plans and the Drawing. Mr Bruce contended that such inconsistency was to be resolved in favour of the Drawing and the statement of area contained therein as the Drawing was the only document that purported to state the area of the apartment.
In answer to the third question Mr Bruce attacked the trial Judge’s conclusion that special condition 4.4.1 was not a special condition to which clause 6 in the Special Conditions applied. Mr Bruce contended, in effect, that the fact that the Special Conditions, provided for by clause R, and the Other Conditions, provided for by clause S, are both contained in the annexure headed, “Special Conditions”, had the consequence that clause 6 of the Schedule was intended to operate in relation to both. Thus the consequence of the inclusion of clause S Other Conditions within the annexure of Special Conditions along with clause R Special Conditions was that all conditions contained in the annexure had a dual character. That meant, in turn, that special condition 4.4.1 applied to all conditions in the annexure of Special Conditions. To conclude to the contrary, it was submitted, meant construing the contract in a manner altering the definition of Special Condition in clause 1.23, arbitrarily distinguishing Special Conditions from Other Conditions, and reading clause 6 down where there was no warrant to do so. In this latter regard it was argued that clause 6 was capable of sensible application to promises not met whether because of the neglect or default of a party to the contract or because of an event or circumstance beyond the parties’ control not occurring, hence clause 6.1 addressed the former position and clause 6.2 the latter.
As to the fourth question, Mr Bruce contended that having regard to its prescriptive importance, special condition 4.4.1 was an essential term of the contract with the consequence that any breach justified termination. Baju contended that if there was a breach it amounted to a loss of area of .15 m². Such breach could be regarded as insubstantial and, relying upon the authority of Tiplady v Gold Coast Carlton Pty Ltd, did not justify termination.[35] In Tiplady, Fitzgerald J stated: [36]
It has been established by a long line of authority that a purchaser's right to rescind is limited to cases in which the difference between the property agreed to be transferred and the property which the vendor was able to transfer was substantial... Shortly stated, the test is whether the property which the purchaser would receive is substantially different from that which he contracted to buy.
[35] (1984) 3 FCR 426.
[36] Tiplady v Gold Coast Carlton Pty Ltd (1984) 3 FCR 426 at 445.
Consideration
Senior counsel for Mr Bruce candidly conceded that if the first of the four questions he posed[37] was answered adverse to Mr Bruce, or if the arguments raised in support of the Notice of Contention were accepted, Mr Bruce could not succeed.[38] Below I deal with the first two questions identified by senior counsel for Mr Bruce, and thereby the grounds of appeal to which they relate, in addition to the contentions advanced in the Notice of Contention.
[37] Set out above at [111].
[38] Appeal T32.
For the reasons that follow I would answer the first two questions articulated by senior counsel adverse to Mr Bruce. In my view, the Drawing is not of promissory effect and the method of determining area contemplated by the contract is not the CTA method. I would also accept the argument made in support of the Notice of Contention that if the CTA method were the applicable method of determining area, then the area of Lot 221 does not exceed the variation tolerance.
In my view, it is not necessary to deal with the third and fourth questions and the appeal grounds to which they relate.
Is the Drawing of contractual effect?
Immediately prior to the contract being received in evidence, senior counsel for Baju inquired as to the form in which the contract was to be received and, in particular, where in the contract the Drawing appeared.[39] Counsel for Mr Bruce made plain that he intended to ask questions on that topic. The trial Judge then admitted the document into evidence.
[39] T65.
In examination-in-chief Mr Bruce said that he had no recollection of where the Drawing featured amongst the documents that in combination comprised the contract.[40] Nor could he recall whether the contract was presented as a bundle or in individual parts.[41] He did say, however, that he had done nothing to disturb the order of the documents in the contract as they were provided to him.[42] With respect to the handwritten endorsement on the Drawing, Mr Bruce told how his wife had raised the question of whether wardrobes were included as part of the contract, to which the agent said yes. The agent proceeded to make a note on the Drawing to ensure this was achieved.[43] Mr Bruce said that the handwriting on the Drawing was not his wife’s nor his, but his initials did appear at bottom left.[44]
[40] T67.
[41] T67.
[42] T68.
[43] T67.
[44] T67.
Mr Bruce was not challenged in cross-examination on these topics.
In examination-in-chief Mrs Bruce said that she was present when the contract was executed despite not being a signatory.[45] She indicated that the contract was presented in the same form as that in which it was presented to the Court and as admitted into evidence as Exhibit D1.[46] She could not say where in the contract the Drawing featured.[47] After execution she took possession of the contract. Apart from sending a copy of the first four pages of the contract to the bank for the purposes of arranging finance, she did not otherwise interfere with the order of its composition.[48] Mrs Bruce explained that on the day of execution she had asked the agent about wardrobes. The agent responded by indicating that she would ensure that robes were included which was intended to be achieved by the making of the handwritten endorsement on the Drawing to which I have referred.[49] It was at that same time that the agent used a highlighter to identify in the Architect’s Plans which of the apartments Mr Bruce was buying.[50]
[45] T98.
[46] T98.
[47] T98.
[48] T99.
[49] T99.
[50] T99.
Mrs Bruce was not challenged in cross-examination on these topics.
The agent was not called by either party to give evidence.
As mentioned above, it was an agreed fact that in the copy of the contract provided by Mr Bruce to his solicitor when this matter commenced, Annexure A was comprised of the Drawing followed by the eight architectural plans.[51]
[51] T381; Exhibit D25.
The evidence included Exhibit D2, an email sent by Baju’s agent, Ms Price, to Mrs Bruce on 28 February 2010, the day before the contract was executed. Ms Price was responding to the Bruces’ inquiry about the H₂O apartments. There is nothing obvious about the email that suggests it included attachments save the statement, “I have included the beachfront apartments that are still available”. That email was forwarded to the Bruces’ solicitor by Mrs Bruce on 10 July 2012. That email has four attachments – H2O Brochure.pdf; H2O Apartment 1.24.pdf; H2O Apartment 1.22 pdf; H2O Apartment 2.21.pdf. The attachments, four brochures in all, comprise part of Exhibit D2. Three of those brochures are concept drawings for each of apartments 1.22, 1.24 and 2.21. All three are beachfront apartments. The brochure for apartment 2.21 is identical in all respects to the Drawing save that it does not bear the handwritten endorsement and is A4 in size. I assume H2O Apartment 2.21.pdf is the file relating to this brochure.
Mrs Bruce was not questioned regarding the email and attachments. From the documents themselves it cannot be concluded that the attachments to the email of 10 July 2012 were sent to Mrs Bruce as part of the email of 28 February 2010. However, in examination-in-chief Mr Bruce was taken to what became Exhibit D2. He said that he and his wife had these brochures when discussing with Ms Price the options available to them. He agreed that the brochures represented the different types of H₂O Apartments subject of those discussions.[52]
[52] T65.
Exhibit D2 suggests that the Drawing was created for purposes that included facilitating the marketing of the apartments.
As mentioned, the trial Judge concluded that it was “not clear from the evidence as to the precise location of the Drawing within the Contract documents.”[53] However the evidence of Mrs Bruce was that she did not interfere with the composition of the contract, save to the extent that she removed the first four pages for copying purposes. Doing so did not involve interfering with the order of the documents comprising Annexure A. Mr Bruce likewise did not disturb the order of the documents that together constituted the contract. The Bruces’ evidence when coupled with the agreed fact establishes that the form in which Exhibit D1 appeared upon tender was the form in which it was received by the Bruces immediately after execution, including Annexure A comprised of the Drawing followed by the architectural plans. Thus, with respect to the trial Judge, the precise location of the Drawing within the contract documents as given to the Bruces was plain from the evidence and Baju did not contend to the contrary.
[53] Baju Henley Square Pty Ltd v Bruce [2015] SASC 169 at [148].

Lastly, it must be remembered that the contract is for the purchase “off the plan” of a “proposed community lot”. In this connection special condition 2.1 contemplates the deposit of a proposed community plan of division in the Lands Titles Office by the Registrar-General as a future act. The plan to which special condition 2.1 speaks is not the architectural plans. The plan to which special condition 2.1 speaks is one that must comply with s 14 CTA and in particular s 14(5)(d), that is, it “must delineate the boundaries of the land and the lots and common property into which the land is divided in a manner that allows those boundaries to be ascertained”.
The distinction between the functions of the architectural plans and the proposed community plan of division is important. It explains why the architectural plans are entitled, “Contract Set”. That title also reflects the fact that development approval has not, as at the signing of the contract, been obtained.[63] It also explains why the obligation imposed upon the vendor by special condition 3.1.2 is to cause the Development Works to be “undertaken in a proper and workmanlike manner generally in accordance with the Architect’s Plans and the Specifications and in compliance with the Development Approval”, those works being that necessary to “complete the construction of the Development which constitutes the erection of all improvements on the Development Land in relation to Stage 1A substantially in the form proposed in the Architect’s Plans”.
[63] Hence special condition 1.1 obliges the vendor obtaining development approval on or before the satisfaction date.
In my view, as at the time of entering the contract the Architect’s Plans are intended to be controlling as to size, configuration and dimensions and the Development must be substantially in the form proposed in those plans. The centrality of the Architect’s Plans to the intended outcome is plain. Special condition 4.4 relates to and operates on the Architect’s Plans, nothing more, nothing less.
In my view, the trial Judge was correct in her conclusion that the Drawing was not of promissory effect. What was promised was a community lot erected generally in accordance with the Architect’s Plans and of which the Drawing is intended to be an indication of what it might look like and what its area might be. To so conclude is to construe the Drawing as part of Annexure A in a manner congruent with the eight architectural plans.
If the Drawing is of contractual effect, is it to be construed as referring to an area to be determined in accordance with s 19(4) CTA?
On the assumption that I am wrong and the Drawing is of promissory effect, in my view, just because the contract has in many places used the language of the CTA, does not carry with it the implication that the contract contemplates that the area of Lot 221 for the purposes of the contract is to be determined in accordance with s 19(4) CTA.
Under the CTA land may be divided into two or more community lots and common property by a plan of community division,[64] in which case the land becomes a community parcel.[65] A plan for community division may create community lots with defined upper, lower and lateral boundaries.[66] Where a community plan does create community lots having upper, lower and lateral boundaries, such lots are also known as strata lots.[67] Lot 221 is a strata lot. Each strata lot must be wholly or partly within a building that has been erected on the community parcel and the boundaries of the lots, or parts of lots that are within the building must be defined by reference to the building.[68]
[64] Community Titles Act 1996 (SA) s 7.
[65] Community Titles Act 1996 (SA) s 3.
[66] Community Titles Act 1996 (SA) s 9(1).
[67] Community Titles Act 1996 (SA) s 9(1).
[68] Community Titles Act 1996 (SA) s 9(2).
If an application for the division of land by a community plan is made in accordance with the CTA and all requirements of the Act are satisfied and the plan conforms to the CTA, the plan is then deposited by the Registrar-General in the Lands Titles Registration Office.[69] Upon the deposit of the plan the community lots created vest in the owners of those lots whilst the common property vests in all of owners of community lots within the building.[70] Separate certificates of title are issued for each lot.[71] At the same time a community corporation is established[72] with the owners of the community lots being the members of the community corporation.[73] Title to the common property is vested in the corporation.[74] The corporation is the mechanism through which the owners of the community lots participate in the administration of the community parcel.[75] The functions and powers of the corporation include to administer, manage and control the common property for the benefit of the owners of the community lots, to maintain the common property and the property of the corporation in good order and condition, and where practicable, to establish and maintain lawns or gardens on those parts of the common property not required or used for any other purpose and to enforce by-laws and development contracts, if any.[76] Further, the corporation may, by notice in writing, require the community lot holder to carry out work in accordance with the lot holder’s duty of maintenance and repair imposed by s 134 CTA.[77]
[69] Community Titles Act 1996 (SA) s 22(1).
[70] Community Titles Act 1996 (SA) s 23(1).
[71] Community Titles Act 1996 (SA) s 22(3)(b); Community Title Regulations 2011 (SA) reg 13.
[72] Community Titles Act 1996 (SA) s 10(1).
[73] Community Titles Act 1996 (SA) s 10(2).
[74] Community Titles Act 1996 (SA) s 23(1)(a).
[75] Community Titles Act 1996 (SA) s 10(3).
[76] Community Titles Act 1996 (SA) s 75.
[77] Community Titles Act 1996 (SA) s 101.
Enough has been said of the operation of the CTA to make plain the importance to the legislative scheme of being able to identify and separate out a community or strata lot from common property. The limit of the lot owner’s dominion ceases where the lot to which they enjoy title ends and either common property or a lot belonging to another begins. For this reason a plan of community division must delineate the boundaries of the land and the lots and common property into which the land is divided in a manner that allows those boundaries to be ascertained.[78] This is all the more important when one bears in mind that a strata lot may be below, on or above the surface of the land, may be wholly on one storey, or straddle storeys, will have upper, lower and lateral boundaries defined by reference to parts of the building, and may include an area within the building or comprising land outside the building to be used for a purpose that is ancillary to the purpose for which the lot to which it relates is used (a subsidiary lot).[79]
[78] Community Titles Act 1996 (SA) s 14(5)(d).
[79] Community Titles Act 1996 (SA) s 19(3).
It is unsurprising then that the CTA and in particular s 19(4) provide for the identification of community lot boundaries. That said, the operation of s 19(4) is subject to a plan not containing an explicit statement to the contrary. That has the consequence that the plan is controlling. Section 19(4) operates in default. A plan may determine the boundaries of a lot differently to the CTA method provided that where the lot is a strata lot, the community division creates lots wholly or partly within a building and the boundary of those lots is defined by reference to the building in which they are wholly or partly contained.[80] It is plain then that the CTA contemplates that the boundaries of a lot may be determined otherwise than in accordance with s 19(4). Accepting this, just as a community plan of division need not reflect s 19(4) in defining the boundaries of a lot, a contract for the sale of a community lot need not do so.
[80] Community Titles Act 1996 (SA) s 9.
In this case the contract refers to the intention to cause a community plan of division to be deposited in the Lands Titles Office.[81] Such plan is to reflect the Architect’s Plans to the extent that it is “to create the Lots as proposed in the Architect’s Plans”.[82] It must also comply with the requirements of the CTA and related regulations. In these circumstances it is understandable that the language of the CTA is used in the contract. But there is nothing in the contract to indicate that for the purposes of the contract the area of Lot 221 must be determined in accordance with s 19(4) CTA and nothing in the CTA compels such result. That is, the use of the language of the CTA in the contract does not in any way prohibit the future deposit of a plan explicitly defining lots in a manner consistent with a contract, different to s 19(4), and yet compliant with s 9 CTA.
[81] Special condition 2.1.2.
[82] Special condition 26.
I have already referred to the fact that s 19(4) CTA is conditioned upon a strata plan containing no explicit statement to the contrary regarding the boundaries of a lot. It is also important to note that before s 19(4)(a)-(c) are engaged the plan must also define a boundary by reference to a wall, fence, floor, ceiling or roof.
The fact that the drafter of a community plan of division may choose how to identify the boundaries of lots has the consequence that a contract for the purchase of a community lot executed before a community plan of division is deposited, cannot be construed as necessarily implying the importation of the CTA method of determining the boundary to a lot simply because community lots are to be created. It may be that the contract has been prepared with a different method, or a combination of methods, in mind, such method or methods then to be used in drafting the community plan of division.
Having concluded that the CTA method does not by the force of the CTA apply to the contract, what method for the determination of area is required by the contract? This question must be answered, as indicated above, on the assumption that the Drawing is of promissory effect as to the area of Lot 221. More than that, it must be answered on the assumption that Lot 221 built in conformity with the floorplan as presented in the Drawing and accompanying architectural plans will have an area of 130 m². If the parties have agreed that the area of Lot 221 built in conformity with the floorplan as presented in the Drawing and accompanying architectural plans is 130 m², then it follows that the parties have turned their mind to the method to be applied in determining whether Lot 221 as built has an area of 130 m² +/- 5% - it is the method that was employed in determining that Lot 221 built in conformity with the floorplan as presented in the Drawing and accompanying architectural plans would have an area of 130 m². Put slightly differently, the implication from an harmonious construction of the Drawing, assuming it is promissory, and the architectural plans is that the method applied in determining the area of the lot for the purposes of the contract is whatever method was applied to the Drawing and architectural plans that resulted in it being determined that Lot 221 would be of an area of 130 m².
At trial, only two methods of calculating area were proffered; the CTA and PCA methods. Mr Andrew, a surveyor who gave evidence as part of Mr Bruce’s case, used the CTA method because it was the area of a community lot that he was asked to determine and, he understood, the area of a community lot was to be determined in accordance with s 19(4) CTA.[83] Mr Kennedy, a surveyor who gave evidence as part of Baju’s case, applied the PCA method because that was what he was instructed to do.[84] No admissible evidence was received as to the method used in arriving at the conclusion that Lot 221, if built in accordance with the plans, would have an area of 130 m².[85] The architects responsible for drafting the Drawing and the architectural plans did not give evidence.[86]
[83] T142.
[84] Exhibit P23.
[85] The letter of instruction to Mr Kennedy dated 10 April 2013 at [12] said that the architects used the Property Council Guidelines. However, there is no suggestion that it was admitted for the truth of that statement as opposed to explaining Mr Kennedy’s actions.
[86] The architects could have given evidence to assist in determining the meaning of the descriptor “Area Total: 130 sqm” contained in the Drawing; DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 429 (Stephen, Mason and Jacobs JJ); Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352 (Mason J); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 116-7 (French CJ, Nettle and Gordon JJ).
The application of the CTA and PCA methods to the architectural plans scaled up resulted in an area calculated as 123 m² and 131.30 m² respectively. The CTA method may be discounted as the appropriate method because the result of its application is inconsistent with “a construction supplying a congruent operation to the various components of the whole.”[87] That does not mean that the PCA method is the method used and contemplated by the contract. Clearly, having regard to the result, the PCA method is more likely to be the method applied than the CTA method as applied by Mr Andrew. Whilst the trial was conducted on the basis that one or other of the two methods identified was the appropriate method, no evidence was given that enabled the trial Judge to conclude that all other methods or combination of methods could be excluded as the method more likely used than the PCA method.
[87] Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 at [16] (Gleeson CJ, McHugh, Gummow and Kirby JJ).
In my view, it was open to the trial Judge to hold that the appropriate method for determining the boundaries of Lot 221 and calculating the area of that lot was that used to arrive at the conclusion that Lot 221 as depicted in the Drawing and subject of the architectural plans, if built in accordance with those plans, would have an area of 130 m²as stated in the Drawing. Such conclusion permitted her to reject the CTA method, but it did not, on the evidence, allow for the acceptance of the PCA method.
As indicated, in its Notice of Contention Baju submitted that if the area of Lot 221 was to be determined applying s 19(4) CTA then the relevant western boundary was the edge of the concrete slab beyond the glass balustrade and the trial Judge erred in not so concluding. If that is correct then the area of Lot 221 was 123.78 m². Thus, on the assumption that the Drawing was of promissory effect as to the area of Lot 221, and on the assumption that the contract contemplated that the area of the lot would be determined applying the CTA method, the area of Lot 221 did not exceed the variation tolerance.
Acceptance of this contention turns on whether the western boundary of Lot 221 represented by a bold black line in the plan is to be taken as referring to the balustrade or the edge of the concrete slab. Mr Bruce argued that, applying the Plan Presentation Guidelines issued by the Registrar-General, the western boundary of Lot 221 had to be the inner surface of the glass balustrade that had been installed. If Mr Bruce was right, the area of Lot 221 applying the CTA method was 123.4 m² and exceeded the permissible variation tolerance.
As indicated under s 22(3) CTA and reg 13 of the Community Titles
Regulations 2011 (SA) certificates of title are issued for lots created by a community plan once such plan is deposited in the Lands Titles Registration Office by the Registrar-General. And as also indicated, s 19(4) CTA makes plain that a plan may define the boundaries of a lot in relation to which the lot owner obtains title or, alternately, the default position contained in s 19(4) may operate to do so. It follows that the area of a lot will be determined by the lateral boundaries of the lot as defined in the relevant community plan and, if applicable, utilising s 19(4) CTA.
In this case the relevant community plan of division was received in evidence as Exhibit P4. It is a secondary community strata plan and was deposited in the Lands Titles Registration Office by the Registrar-General on 1 February 2012.
Section 14(5)(a) CTA commands that a plan of community division be in a form approved by the Registrar-General and s 14(5)(j) CTA commands that such plan comply with any requirements stipulated by the Registrar-General. In the exercise of the power conferred by s 14(5)(a) and (j) CTA and reg 4 of the Community Titles Regulations 2011 (SA) the Registrar-General has issued guidelines governing the form of plans of community division and the content of such plans. The guidelines have been issued, amended and re-issued on a number of occasions. The guidelines may be considered an exercise of delegated legislative power. They prescribe a norm that must be complied with[88] and, if it is, then, in addition to the other requirements of s 22(1) CTA, rights and obligations are created. As an exercise of delegated legislative power the guidelines cannot operate retrospectively to impose obligations as there is no express grant by the legislature of power to do so.[89] As such, any question of the construction of a plan deposited in the Lands Titles Registration Office by reference to the guidelines must be undertaken using the guidelines in force at the relevant time.
[88] Community Titles Act 1996 (SA) ss 19 and 22.
[89] Acts Interpretation Act 1915 (SA) s 10A(1)(b).
The applicable guidelines in this case are the Plan Presentation Guidelines, Version 3 (PPG V3).[90] Despite this, the matter proceeded at trial on the basis that the Plan Presentation Guidelines, Version 6 (PPG V6), was the applicable version,[91] as it did on appeal.
[90] Department of Planning, Transport and Infrastructure, Lands Titles Office, Plan Presentation Guidelines, Version 8, 1/08/2016, at 22.
[91] Appeal T88.
In each version of the Guidelines community plans are dealt with in chapter nine. Generally speaking the focus of chapter nine in each case is upon the methods that may be deployed by drafters in identifying the boundaries of development lots, community lots and common property in community plans of division. Where, as here, the community plan is a strata plan, the location of each lot and common property must be identified in addition to any subsidiary lot. Further, the lateral boundaries and height and depth boundaries of each lot must be identified. The former is achieved by a site plan drafted in accordance with the guidelines and the latter by a floorplan, again, drafted in accordance with the guidelines. Both the site plan and the floorplan are components of the community plan. In this case the argument focused upon the floorplan for the second floor of the allotment subject of community plan C27018 being sheet 8 of the 10 sheets comprising Exhibit P4 (Sheet 8).
In both PPG V3 and PPG V6 paragraph 9.18 requires amongst other things that each lot be labelled on the floorplan with a parcel number.[92] Further, where the lot or parcel is contained in a community strata lot and has attached to it subsidiaries, those subsidiaries must be identified on the plan below the parcel number. Here that has occurred. Relevantly, Sheet 8 bears the following within the lines on the plan denoting Lot 221:
221
INCL 6 SUBS
BALCONY, ENTRY, ATRIUM,
[92] See also, PPG V6 paragraph 7.26; PPG V3 paragraph 7.27.
2 CARPARKS & A/C
Thus the balcony to Lot 221 is identified by the community plan as a subsidiary lot. Paragraphs 9.19 in both PPG V3 and PPG V6 make plain that a subsidiary lot is “an area set aside on the Community Strata plan for the exclusive use of the Lot it was assigned to.” Further, paragraph 9.19 of both PPG V3 and PPG V6 require that each lot subsidiary be labelled with a description and the lot number to which it is assigned. Here that has been done. In the space representing the balcony there is printed:
BALCONY
SUB 221

That said the floorplan indicates that Balcony Sub 221 has a planter box at its western extreme. The planter box is not labelled as a lot subsidiary. Rather, as drafted, and by reference to the balconies of adjoining lots, the planter box forms part of Balcony Sub 221.
Ultimately no planter box was installed. Rather the balcony to the west is bordered by a glass balustrade.
Paragraphs 7.15 of PPG V3 and 7.14 of PPG V6 prescribe the thickness of a bold black line that must be used to delineate the extent of the subject land of a plan. Paragraphs 7.16 of PPG V3 and 7.15 of PPG V6 provide that a bold black line must be used to identify parcel boundaries.[93] Returning to Sheet 8, the western extreme of the planter box from its northernmost to its southernmost point is plotted using a bold black line the continuation of which demarks the boundary to the second floor. It follows that the western boundary to Lot 221 is the bold black line that runs the length of the western side of the planter box from its northernmost to its southernmost point and that that boundary is the western boundary of a lot subsidiary attached to Lot 221. The question raised by the notice of contention is what does that bold black line represent?
[93] See also, PPG V6 paragraph 7.19.1; PPG V3 paragraph 7.20.
The bold black line is undoubtedly a lateral boundary. Paragraphs 9.22-9.27 of PPG V6 and paragraphs 9.22-9.26 of PPG V3 deal with the identification of lateral boundaries. In each instance paragraph 9.22 makes plain that lateral lot subsidiary boundaries may be defined by monument, data or a combination of both[94] and that labels may be used on lot subsidiary boundaries to assist definition.
[94] See also paragraphs 9.19 in both PPG V3 and PPG V6.
Paragraph 9.23.1 of PPG V6 states:
9.23Methods of fixing and identifying lateral boundaries of lot subsidiaries
9.23.1The boundaries of lot subsidiaries are fixed by:
·     Data
·     Monument
·     A combination of data and monument
Paragraph 9.22 in PPG V3 is to the same effect.
In PPG V6 paragraphs 9.24 and 9.25 then provide detail as to how drafters may use data to identify the boundaries of lot subsidiaries. Paragraph 9.26 performs the same function where a monument is used to define a lot subsidiary boundary and paragraph 9.27 where a combination of a monument and data is used. In PPG V3 paragraphs 9.23-9.26 do the same.
Paragraph 9.23.2 of PPG V6 states:
9.23.2A label must be shown to identify the boundary of lot subsidiaries in the following situations:
·     Along a common boundary of lot subsidiaries with the same land use regardless whether the common boundary is monumented or not.
·     Where a monument which is not a structure (eg fence, wall, edge of concrete, join in concrete etc.) forms a boundary of a lot subsidiary.
·     Where the boundary of a lot subsidiary is related to a monument eg: a join between corners of a structure, a join between structures, outside face of wall prod etc.
The western boundary to Balcony Sub 221 as shown in Sheet 8 is not labelled. Mr Bruce contends that the consequence of this is that the western boundary represented in the plan by the bold black line must be a structure. He then submits that such structure could only be the balustrade that has been installed by the builder. Accepting this, he submits that the boundary must be taken as defined by reference to the balustrade which is in the nature of a wall or fence within the meaning of s 19(4)(a) CTA. Therefore, applying that section, the boundary is to be taken as the inner surface of the balustrade. Baju contends that the relevant structure is the edge of the floor slab of the balcony.
Sheet 8 makes no reference to the balustrade. Unassisted by the Guidelines, and focusing upon Sheet 8, Mr Bruce’s submission seems unlikely. Deposited plans are intended to provide certainty. Acceptance of Mr Bruce’s submission has the consequence that area is determined by the choice of position of the balustrade. What if, instead of the balustrade being affixed to the horizontal face of the concrete slab a short distance east of its edge, it was affixed to the vertical face of the slab and by virtue of the choice of fixing travelled in a vertical plane from a position four centimetres west of the edge of the concrete? But perhaps more significantly, the plan contemplates a planter box the western side of which will constitute the boundary to Balcony Sub 221. That western side of the planter box must be considered as travelling in a vertical plane that is the continuation of the vertical edge of the concrete slab. The plan does not contemplate a boundary travelling in a vertical plane east of that of the western side of the planter box or east of the vertical face of the slab. The balustrade has been installed in a position east of where the plan indicates the western side of the planter box should be. In my view, Sheet 8 cannot be read as plotting a western boundary to Balcony Sub 221 that has been fixed east of where the boundary is plotted. In short, it cannot be read as referring to the balustrade as installed.
Mr Bruce contended that Baju’s nomination of the edge of the slab constituting the floor of the balcony as the boundary could not be accepted in the face of the second dot point to paragraph 9.23.2 – it is not a structure. That is why it is included in the parentheses and that is why it is not labelled on Sheet 8.
Mr Bruce referred to paragraph 9.26.7 PPG V6 as supporting his argument. That paragraph states:
9.26.7A label must be shown where a Lot Subsidiary boundary is a monument and not a structural component of the building (see Figure 9.13).
I do not accept Mr Bruce’s argument.
First, PPG V3 contains no equivalent to paragraph 9.23.2 in PPG V6.
Second, paragraph 9.26.7 of PPG V6 of which there is an equivalent in PPG V3 does not assist Mr Bruce.[95] Paragraph 9.26.7 serves as an elucidation of the second dot point in paragraph 9.23.2. It also operates as an exception to the second dot point in paragraph 9.23.2 in that it contemplates that labels may be dispensed with where the boundaries of a lot subsidiary are monuments that are also structural components of the building. This reflects paragraph 9.26.5 which features in both PPG V6 and PPG V3.[96] It states:
9.26.5 Lot Subsidiary boundaries within a building structure generally do not require labels. For example, a storeroom in a building may be defined solely by monument with no labels where the boundaries are the inside face of the walls, floor and ceiling (see Figure 9.11).
[95] PPG V3 paragraph 9.25.
[96] In PPG V3 it is contained in paragraph 9.25.
If PPG V6 were applicable, it must also be remembered that paragraph 9.26.1 in PPG V6 states that lot subsidiaries comprising or defined by a structure can include balcony, garage, carport, shed, rain water tank, shadehouse, verandah, porch etc. I do not think paragraph 9.26.1 should, in referring to a balcony as a structure, be construed as a matter of course as limiting the boundary of such structure to the positioning of the balustrade or railing. What is contemplated is the use of a two dimensional diagram depicting the area of a balcony. Unless such diagram makes specific reference to a balustrade or rail as forming the boundary of a balcony, the boundary will be depicted as a line representing the edge of the slab. Here that is what has occurred.
In my view, the plan is clear; the western lateral boundary of Balcony Sub 221 is shown by the bold black line to be the western extreme of the planter box extending from its northern most extreme to its southern most extreme. That is the edge of the concrete slab that forms the floor to Balcony Sub 221.
Paragraph 9.26.6 of PPG V6 bears out this conclusion and that the boundary of a balcony may be represented by reference to its floor space and without regard to where a balustrade or rail is positioned. Paragraph 9.26.6 features in identical terms in both PPG V6 and PPG V3.[97] It states:
9.26.6A label must be shown where Lot Subsidiaries assigned to different Lots abut each other and share the same common boundary (see Figure 9.12).
[97] In PPG V3 it is contained in paragraph 9.25.
Figure 9.12 contains no label identifying the boundary of either Balcony Sub 1 or 2 on the eastern extreme (assuming north to be the top of the page). The boundary is the end of the structure – the edge of the slab.
The subject of the second dot point in paragraph 9.23.2 of PPG V6 is a monument which is not a structure. The examples given in parentheses are examples of monuments that are not structures. Those examples include the edge of concrete. However, I do not think the inclusion of the edge of concrete as an example of a monument that is not a structure in 9.23.2 means that in every lot the edge of concrete no matter where it features can never be considered a structure. As I have mentioned, paragraph 9.26.7 makes an exception. I am also fortified in this by the inclusion of a wall in the examples given in parentheses in the second dot point. It could not be suggested that walls that support the ceiling and form a boundary to the lot are not structural monuments, unlike a garden wall. In my view the edge of a concrete slab forming the floor of a balcony on the second floor of an apartment complex, and the ceiling of the balcony to the lot below, is a structural component of a building. Further, the balcony, despite forming a part of the external boundary of the building, is within the building structure.[98] I am further fortified in this conclusion by the fact that the slab comprising the floor of a balcony certainly is a structure for the purposes of identifying height boundaries. If it is a structure for height boundaries, why cannot it not be a structure for the purposes of identifying lateral boundaries?
[98] See PPG V6 paragraph 9.26.5; PPG V3 paragraph 9.25.
Thus, even if PPG V6 were applicable, in my view the edge of the concrete slab comprising the floor of the balcony is a structure and need not be labelled as the second dot point of paragraph 9.23.2 PPG V6 does not apply.
Sheet 8 contains six notations. With the exception of the second notation, the balance are not presently relevant. The second notation states:
BOUNDARIES BETWEEN LOT SUBSIDIARIES SHOWN AS BALCONY ARE WALL
This notation refers to lateral boundaries, albeit it only those between lot subsidiaries shown as balcony. In relation to Lot 221 it relates to that portion of the lot subsidiary boundary shown as Balcony Sub 221 that is shared with Balcony Sub 222. The reference to that portion of the boundary as being “wall” picks up s 19(4) CTA. Clearly the drafter has had regard to paragraph 9.26.6 PPG V6 and Figure 9.12.[99] Equally clearly the drafter has turned his or her mind to the need to define the boundaries of lot subsidiaries shown as “Balcony” and considered that it is only necessary where the boundary is one “between lot subsidiaries shown as balcony”. Again paragraph 9.26.6 required no different result. Thus it is clear, there is no property west of the bold black line depicting the boundary to Balcony Sub 221. That is, the bold black line forming the western boundary to Lot 221 does not allow for any common property in that there is no indication that that boundary is not part of Lot 221.[100]
[99] See PPG V3 paragraph 9.25 and Figure 9.12.
[100] Community Titles Act 1996 (SA) s 28(1)(c).
Even if it is accepted that the drafter of the plan contemplated that a balustrade or railing of some description would be installed, it does not follow that the position of the balustrade or railing as constructed was necessarily contemplated as the boundary. The stronger inference is that the bold black line does not represent a wall nor a fence because the subsidiary lot is constituted of a balcony and the ordinary meaning of that term does not connote an area enclosed by a wall or fence, as opposed to a balustrade or railing, thus s 19(4) CTA is not engaged. I adhere to my observations of the plan made above. My consideration of the Guidelines suggests my preliminary view formed without regard to the Guidelines is correct.
If I am wrong in my finding that the Drawing is of no contractual effect then I would uphold the respondent’s Notice of Contention to the extent that, if the appropriate method of measurement of Lot 221 is the CTA method, then the western boundary of Lot 221 is the edge of the slab constituting the floor of the balcony and not the inner face of the balustrade installed on the balcony. So concluding has the consequence that on the evidence the area of Lot 221 is 123.78 m² and thus within the variation tolerance provided for by special condition 4.4.1.
The final two questions
The High Court has made plain that intermediate courts of appeal must consider whether to deal with all grounds of appeal and not just those that may be decisive.[101] The rationale underpinning this approach is to be found in the benefits to all concerned of finality.[102] By dealing with all grounds of appeal an intermediate appellate court positions the High Court, should the matter be subject of a grant of special leave, to determine all issues between the parties without the need to remit any particular issue for further consideration. A similar practice applies to trial courts.[103] The practice does not amount to a rule of law.[104] Rather it is grounded in practical considerations.
[101] Kuru v New South Wales (2008) 236 CLR 1 at [12] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
[102] Cornwell v The Queen (2007) 231 CLR 260 at [105] (Gleeson CJ, Gummow, Heydon and Crennan JJ).
[103] Prince Alfred College Inc v ADC (2016) 90 ALJR 1085 at [113] (French CJ, Kiefel, Bell, Keane and Nettle JJ).
[104] Kuru v New South Wales (2008) 236 CLR 1 at [12] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Cornwell v The Queen (2007) 231 CLR 260 at [105] (Gleeson CJ, Gummow, Heydon and Crennan JJ).
In this matter the cascading nature of the grounds of appeal to which the four questions relate, has the consequence that if the first question is answered adverse to Mr Bruce, as I have indicated I would answer it, it is necessary thereafter to act on assumption and then conceivably upon assumption upon assumption.
A point is reached where answers given to cascading and contingent grounds of appeal on the basis of assumption upon assumption is impractical and can undermine confidence in the administration of justice. That is not to dispute in anyway what has fallen from the High Court. As the High Court has made plain, practical considerations inform the decision of this Court whether to address grounds of appeal beyond those that are decisive.
The first two questions in this matter deal with the issue of whether the contract has been breached, the second two, the action that may be taken in consequence of any breach. Having answered the first two questions and answered them adverse to Mr Bruce, it is not necessary to deal with questions three and four. In the event that the High Court was to consider this matter and was to conclude that I have erred in my answers to the first two questions, and have erred in dealing with the Notice of Contention, respectfully, I do not think the High Court would be prevented from dealing with the third and fourth questions. Those questions necessarily form part of any consideration of the consequences flowing from a finding that the contract has been breached. To put it slightly differently, consideration of questions three and four by the High Court would not depend upon this Court having first done so and there being a ground of appeal addressing what this Court did. All the material that the High Court would need to consider would be before it. No need would arise to remit the matter for further consideration. Thus, finality would not suffer.
In the circumstances it is not necessary to answer the third and fourth questions.
Conclusion
The appeal should be dismissed.

The Purchaser’s Lot derived from the A0 plans		Lot 221 as constructed
Basis	PCA	Section 19(4)	PCA	Section 19(4)
Balcony slab	131.3	123.0	132.6	123.8
Balcony balustrade	NA[9]	NA[10]	132.4	123.4

Area promised (Architect’s Plans per contract)	Property Council Guidelines	CTA basis
Scaled from Architect’s Plans	131.30 sqm	123.00 sqm

Actual area (as built)	Property Council Guidelines	CTA basis
Survey measurements	132.40 sqm	123.40 sqm
Survey measurements excluding nib walls	123.35 sqm
Survey measurements including to edge of slab on balcony	123.78 sqm
Survey measurements including to edge of slab on balcony excluding nib walls	123.73 sqm