Carneiro v Robinson - [2005] SADC 81

District Court of South Australia
(Civil)
CARNEIRO & ANOR v ROBINSON & ORS
Judgment of His Honour Judge Robertson
12 July 2005
TRADE AND COMMERCE - TRADE PRACTICES AND RELATED MATTERS - CONSUMER PROTECTION - MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT
TRADE PRACTICES ACT 1974 - FAIR TRADING ACT 1987 - MISLEADING AND DECEPTIVE CONDUCT - MISREPRESENTATION - MISREPRESENTATION ACT 1972
Misrepresentation by a Land Agent on sale of allotment of land that allotment had side and rear access - agents acting within ostensible authority - implied representation that access available by way of a public road - representation false - land said to be a road owned by vendor of the allotment of land - claim under Trade Practices Act and Fair Trading Act for vendor to grant right of way over land said to be a road - alternatively claim for damages - claim under Trade Practices Act statute barred - liability in damages under Fair Trading Act and Misrepresentation Act - refusal to order vendor grant right of way under Fair Trading Act.
PROPRIETARY ESTOPPEL - PROMISSORY ESTOPPEL
Claim for right of way arising from principles of proprietary estoppel -claim sought on basis of land agents misrepresentation that adjoining land was a roadway - principles relevant to proprietary estoppel -claim refused - claim for promissory estoppel - claim relying upon vendor's promises after settlement that she would not hinder access - principles relevant to promissory estoppel - claim allowed - injunction granted.
Trade Practices Act 1974 s52, 82, 87; Fair Trading Act 1987 s56, 84, 85; Misrepresentation Act 1972 s7; Real Property Act 1886; Limitation of Actions Act 1936 s48(1); Land and Business (Sale and Conveyancing) Act 1994 s7; Fences Act 1975, referred to.
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; Como Investments Pty Ltd (In Liquidation) v Yenald Nominees Pty Ltd (1977) ATPR 43; Gould v Vaggelas (1985) 157 CLR 215; Ward v Kirkland (1967) 1 Ch 194; Crabb v Arun District Council (1976) 1 Ch 179; Waltons Stores (Interstate) Limited v Maher (1987-1988) 164 CLR 387; Aliotta v Broadmeadows Bus Service Pty Ltd & Anor (1988) ATPR 48, 438; Legione v Hatley (1982-1983) 152 CLR 406; Marks v GIO Australia Holdings Ltd (1998) 158 ALR 333; Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281; Taco Company of Australia Inc v Taco Bell Pty Ltd 42 ALR 177; Concrete Constructions (NSW) v Nelson (1990) 149 CLR 599; Lubrano v Gollin & Co Proprietary Ltd (1919) 27 CLR 113; Commonwealth of Australia v Verwayan (1990) 170 CLR 390; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1, applied.
Dillwyn v Llewelyn (1862) 45 ER 1285; ER Ives Investment Ltd v High (1967) 2 QB 379; Ramsden v Dyson (1865) LR 1 HL 129, considered.

CARNEIRO & ANOR v ROBINSON & ORS
[2005] SADC 81
JUDGE ROBERTSON
CIVIL
Nature of the Proceedings

These proceedings arise from the acquisition by the Plaintiffs from the First Defendant (“Mrs Robinson”) of a vacant building allotment at Mount Compass which was sold by Mrs Robinson through land agents, Southgate Real Estate, the Second Defendant, in July 1999. The sale was transacted by Peter Holt, the Third Defendant, (“Mr Holt”) who was at the time employed as a salesman with Southgate Real Estate (“Southgate”). Whilst he is named as Third Defendant, Mr Holt did not play any role in the proceedings.
It is common ground that at the time of acquisition of the building allotment (“the allotment”), Southgate represented to the Plaintiffs that the allotment had side access and rear access by way of a public roadway adjoining the western boundary of the allotment. The “roadway” is a narrow strip of unmade land (“the strip of land”). Further, it is common ground that the strip of land was not a public roadway, but part of a large allotment of land which bordered the rear of the allotment acquired by the Plaintiffs, which large allotment was owned by Mrs Robinson. It is also common ground that the representations made by Southgate were false. The strip of land represented as a roadway in fact gives access from a public road named “Arthur Road” to the large parcel of land owned by Mrs Robinson to the rear of the Plaintiffs' allotment. The Plaintiffs’ allotment and another allotment on the western side of the strip of land also have a frontage on Arthur Road.
As a result of these misrepresentations and subsequent alleged promises or representations with respect to the strip of land, the Plaintiffs are seeking in these proceedings:
·an order that Mrs Robinson grant a right of way to them over the strip of land; or alternatively,
·an injunction restraining Mrs Robinson from preventing the Plaintiffs from using the strip of land to gain access to the rear of their allotment.
The Plaintiffs are also seeking damages from the Defendants arising from the misrepresentations made by Southgate Real Estate regarding side and rear access.
A Brief Description of the Subdivision Involved in the Dispute
The allotment purchased by the Plaintiffs was part of a small subdivision of four building allotments subdivided by Mrs Robinson in 1997 from a large piece of land owned by her at Mount Compass. Each of the allotments has a frontage to Arthur Road. The four allotments were at the southern end of a large, narrow, rectangular piece of land owned by Mrs Robinson. Before the subdivision Mrs Robinson’s large parcel of land had a frontage onto Arthur Road. As a result of the subdivision two allotments were created on either side of the narrow strip of land which was some fifteen metres in width. The allotments on the western side of the strip of land were known as allotments 2 and 3 and the allotments on the eastern side were identified as allotments 4 and 5. The large broad acres owned by Mrs Robinson to the north (rear) of the four subdivided allotments was identified in the subdivision plan as allotment 1. The strip of land was part of allotment 1.
The plan of subdivision created in 1997 showed a triangular corner cut‑off piece on the south-eastern corner of allotment 3, adjacent to the strip of land and Arthur Road. It also showed a similar corner triangular cut-off piece for allotment 4 on the south-western corner of the allotment adjacent to the strip of land and Arthur Road. In other words, a triangular piece of land had been cut off allotment 3, and a triangular piece had been cut off allotment 4 on the opposite corner. These two small triangular pieces of land formed part of the strip of land. As a result, on viewing the subdivision plan, with the triangular cut-off pieces of land, the strip of land gave the appearance of being a roadway leading from Arthur Road, although it had no name. However, this was not the case. As I mentioned, Mrs Robinson had retained the broad acres to the north (rear) of the four allotments and had also retained ownership of a strip of land as a means of gaining access from Arthur Road to the large broad acres, being allotment 1, to the rear of the four building allotments which had been subdivided from the broad acres by Mrs Robinson.
I should add that the reason the strip of land in the subdivision plan gave the appearance of being a road is because it was in fact designed and designated as a road in an earlier plan of subdivision. I will come to this shortly.
I have endeavoured to describe the Plaintiffs’ allotment, the strip of land and other relevant pieces of land. However, in case I have failed to produce a clear picture through my narrative, I set out hereunder part of the plan of subdivision depicting allotments 2, 3, 4 and 5, part of allotment 1 and the strip of land between allotments 3 and 4. Allotment 1 to the north of the Arthur Road allotments was a large tract of broad acres. This plan only shows a small portion of allotment 1. Mr Holt showed the Plaintiffs a plan when they first visited Southgate. This plan is similar to the plan shown to the Plaintiffs but the words “Arthur Road” and the words and figures below it were not present.

The Plaintiffs’ Use of the Strip of Land
As I mentioned earlier, the Plaintiffs seek permanent access to this strip of land by way of obtaining a right of way or an injunction preventing Mrs Robinson from hindering their access.
The Plaintiffs have for some years used the strip of land to gain access to their allotment with motor vehicles. The Plaintiffs presently use the strip of land as a roadway which they enter from Arthur Road to gain access to double gates at the rear of the western side of their allotment. The double gates when opened allow the Plaintiffs access to their garage which is at the rear of their allotment in the north eastern corner.
In January 2002, Mrs Robinson complained to the Plaintiffs of their use of that land. That was the catalyst for these proceedings. The Plaintiffs continue to use the strip of land as Mrs Robinson is restrained by an interlocutory injunction from preventing their continued use of the strip of land for access.
History of Mrs Robinson’s Land and its Development
To understand how this strip of land has the appearance of being a road in the plan of the 1997 subdivision, it is necessary to provide a brief history of the land owned by Mrs Robinson.
In approximately 1974 Mrs Robinson and her husband purchased about twenty five acres of land at Mount Compass with a frontage on Victor Harbor Road. The land, at its southern end, also had a frontage to Arthur Road. In other words, the land was between Victor Harbour Road to the north and Arthur Road to the south. It was a long, narrow, rectangular piece of land. There was land owned by others adjoining the western and eastern boundaries of the Robinson’s land.
In 1978 Mrs Robinson and her husband subdivided from the broad acres a piece of land of approximately five acres. This subdivided piece of land included the entire frontage of the broad acres abutting the Victor Harbor Road. The subdivided piece was then sold.
Unfortunately, Mrs Robinson’s husband was killed in a motor accident in 1978. The remaining broad acres were retained in that state until Mrs Robinson, in 1997, subdivided from the broad acres the four allotments at the Arthur Road end of the land. However, there was one event during the period from 1978 through to 1997 which has played a significant role in bringing the parties to Court and to these unfortunate legal proceedings.
In 1988, Alister Fyfe, a Licensed Surveyor, prepared a subdivision plan for the broad acres owned by Mrs Robinson (“the 1988 plan”). It appears that the planned subdivision of Mrs Robinson’s land as depicted in the 1988 plan was part of a larger subdivision incorporating Mrs Robinson’s land and land owned by others adjoining Mrs Robinson’s land. The 1988 plan proposed a subdivision of Mrs Robinson’s broad acres into fifty building allotments. There were four allotments with frontages to Arthur Road numbered 1, 2, 3 and 4. In between allotments 2 and 3 on the plan there was depicted a road named “Williams Street” which joined Arthur Road from the north. The plan showed a number of allotments on the east side and the west side of Williams Street, being allotments to the north of the proposed allotments 1, 2, 3 and 4, which all ran in a south/north direction. The planned “Williams Street” travelled in a north/south direction and these other allotments with frontages on Williams Street were sited in a east/west direction.
The 1988 plan contained cut-off corner pieces on allotment 2 and allotment 3 at the junction of Williams Street and Arthur Road. It seems that in any subdivision where one road adjoins another road, the requirement by the approval authorities is that the allotments which are on a corner of two roads are required to give up a small triangular piece of land.
In the 1988 plan Williams Street provided the means of access to those other allotments to the east and west of the Street being the allotments to the north of the four allotments with frontages to Arthur Road. The effect of all of this was that allotments 2 and 3 in the plan were corner blocks. Access could be gained to each of the allotments from either Arthur Road or Williams Street.
Mrs Robinson had retained the 1988 plan from the time that it came into her possession in 1988. Her explanation regarding the manner in which the plan came into her possession was quite strange. She said in evidence, that she never commissioned the production of the 1988 plan. It was her evidence that a neighbour had brought the plan to her one day stating that it had been dropped off at the wrong house. Mrs Robinson said that the 1988 plan arrived unsolicited by her and that she had not discussed the subject of a subdivision or a plan of subdivision with any surveyor prior to it appearing. Mrs Robinson said that her recollection was that some sort of discussion took place between her and the surveyor after the plan was presented. That was the only memory she had of the plan of subdivision. In the end it came to nothing. Mrs Robinson said she was not interested in subdividing the broad acres at that time.
Later in her evidence, Mrs Robinson started to express some doubt regarding her earlier evidence that she had not commissioned Mr Fyfe to prepare the subdivision plan. However, she said she had no memory of commissioning Mr Fyfe to prepare the plan.
The 1997 Subdivision
In 1997 Mrs Robinson was living on her property at Littlehampton. She was developing the property and needed some further funds for that purpose. She recalled she had retained the 1988 plan. She decided that she would subdivide from the broad acres, the allotments 1, 2, 3 and 4 which appeared in the 1988 plan, being the allotments which had frontages to Arthur Road.
The first step which Mrs Robinson took for the purpose of the subdivision was to prepare a plan of subdivision depicting the four allotments and the larger broad acres to the north (rear) of those allotments. She produced such a plan by using the 1988 plan. She covered all the allotments to the north of the four Arthur Road allotments in the 1988 plan, being those on either side of Williams Street, with a plain sheet of paper. She also placed a small strip of paper over the reference to “Williams Street” between allotments 2 and 3 in the 1988 plan. Thereafter, she photocopied the 1988 plan with the coverings I have described. Before Mrs Robinson photocopied the plan, she had placed a number “1” on the sheet of paper covering all the allotments in the 1988 plan, which were north of the Arthur Road allotments, thus giving the appearance of one large allotment. Mrs Robinson also renumbered the four Arthur Road allotments 2, 3, 4 and 5. The plan produced, following the photocopying, showed the four Arthur Road allotments as numbers 2, 3, 4 and 5 and a large allotment, being the broad acres to the north of the four allotments, as number 1. The strip of land which was described in the 1988 plan as “Williams Street” between lots 3 and 4 still remained but the reference to Williams Street had been removed. Importantly, the corner cut-off pieces were still present.
It was this photocopy plan which formed the basis for the 1997 plan of subdivision.
Listing of the Allotments with Southgate Real Estate
In late April 1997 Mrs Robinson approached Mr Graham Cross, one of the principals of Southgate, for the purpose of having Southgate market and sell the four Arthur Road allotments. She knew Mr Cross because he had sold her and her husband the original broad acres. At the time she produced the plan of the subdivision depicting allotments 2, 3, 4 and 5 with frontages on to Arthur Road and the large allotment 1 to the north of those allotments. Final approval of the subdivision by the necessary authorities had not been completed at that time.
On 1 May 1997, Mr Cross forwarded to Mrs Robinson, under cover of a letter, a Sales Agency Agreement for the sale of allotments 2, 3, 4 and 5. In his letter, Mr Cross suggested a price of $25,000 for allotments 2 and 5 and a price of $27,500 for allotments 3 and 4. The Sales Agency Agreement included an authority to sell the allotments at those prices. A flat fee of $200 for the marketing of each allotment was also included in the Sales Agency Agreement. This fee was expected to cover all advertising and marketing expenses relative to each allotment. Mrs Robinson signed the Sales Agency Agreement on 5 May 1997.
There is a conflict between the evidence of Mrs Robinson and the evidence of Mr Cross regarding the reason a higher price was allocated for allotments 3 and 4. It was Mrs Robinson’s evidence that Mr Cross recommended that there be higher prices for allotments 3 and 4 than allotments 2 and 5 in order to provide purchasers with a choice. She said that he suggested that it was a good marketing strategy to provide different prices.
On the other hand, it was the evidence of Mr Cross that allotments 3 and 4 were allocated a higher price than the other two allotments because they had the potential of side access to the rear of each allotment if the strip of land between them became a road later. The strip of land was that depicted as Williams Street in the 1988 plan.
Mr Cross said that when Mrs Robinson originally approached Southgate in 1997 regarding the sale of the four Arthur Road allotments, Southgate, in conjunction with surveyors, had prepared some conceptual plans which depicted the remaining broad acres to the north of the four Arthur Road allotments, as potential allotments. He said that he suggested to Mrs Robinson that these four allotments could be the first stage of a large subdivision of the entire land owned by her to the north (rear) of the four Arthur Road allotments. He said that Mrs Robinson had rejected proceeding further with the development of the remainder of the broad acres at that time because of the financial liabilities involved in such an undertaking.
Mr Cross said that at the time of his discussion with Mrs Robinson he understood that the strip of land between allotments 3 and 4 was not a road. He said that all other plans had showed it as a road, but the subdivision lodged and approved for subdividing the four allotments from the remainder of the broad acres did not identify it as a road. Mr Cross said that he discussed the prices of the allotments with Mrs Robinson and recommended the higher price for allotments 3 and 4 because of the potential that if there was a further development in future of the remainder of the broad acres then the strip of land between allotments 3 and 4 was likely to become a road. He said that the higher prices for these two allotments were discussed and agreed on the basis that there was this potential for those two allotments to be corner allotments. Mrs Robinson denied that any such discussion took place.
I thought that Mrs Robinson’s evidence on the issue of the variance in price between allotments 2 and 5 and allotments 3 and 4 was most unsatisfactory and unconvincing. I will be commenting shortly on the credit of each of the witnesses called on the issue of liability. For present purposes, I indicate that I do not accept the evidence of Mrs Robinson regarding the variance in prices. I accept the evidence of Mr Cross that he discussed with Mrs Robinson the potential that the strip of land between allotments 3 and 4 could, in the future, become a road and that these allotments would then be corner allotments. I accept the evidence of Mr Cross that this was the reason it was agreed to market allotments 3 and 4 at higher prices than allotments 2 and 5.
Sale of Allotment 4 to the Plaintiffs

The four allotments first came to the notice of the Plaintiffs in late May or early June of 1999 when they were on a Sunday drive. They were immediately attracted to the position of the allotments. There were “For Sale” notices on three of the allotments. A house was under construction on allotment 2. Mrs Carneiro said that these three allotments were overgrown with vegetation so it was impossible to identify precisely each allotment. The strip of land between allotments 3 and 4 was also overgrown. Mrs Carneiro said that she and the First Plaintiff, Mr Carneiro, were attracted to the allotments because of the view across rolling country side.
On their way home the Plaintiffs called in to Southgate’s offices at McLaren Vale. They had identified Southgate as the agents from the “For Sale” notices on the allotments. On arriving at Southgate’s offices they spoke to the Third Defendant, Mr Holt, who was involved in the sale of the allotments. I find that at the meeting, Mr Holt showed the Plaintiffs a plan which identified the four allotments. The plan also identified Lot 1 but that allotment was not depicted in its entirety on the plan produced. It was a more discrete plan focussing to a large extent on the four allotments. The plan included the strip of land between allotments 3 and 4 with the cut-off sections on the corner of each of those allotments. During the conversation with Mr Holt, he told the Plaintiffs that two of the allotments were corner allotments. The meeting concluded with the Plaintiffs indicating that they were interested in the land.
The Plaintiffs at one point came into possession of a brochure produced by Southgate entitled “Property Showcase”. This brochure contained descriptions of many properties which Southgate held for sale. There is some difference in the evidence between Mr Carneiro and Mrs Carneiro regarding the manner and time in which it came into their possession. It is not relevant to determine precisely when it came into their possession. It certainly was in their possession prior to entering the Contract. It had been obtained from Southgate. The brochure contained an advertisement relating to the four allotments. The Plaintiffs perused the advertisement. Included in the advertisement was the following:
Two corner allots. Ideal for side/rear access.
The advertisement indicated that allotments 2 and 3 had been sold.
Mrs Carneiro said that the Plaintiffs became interested in the other “corner” allotment, being allotment 4. This was for sale at a price of $25,000. Allotment 5, being the adjoining allotment, was advertised for sale in the advertisement for a price of $20,000. The advertisement in the brochure indicated that the contact person was Ros Cross who, at that time, was a principal in Southgate’s land agent business. She is married to Mr Cross.
After the initial contact with Mr Holt on that Sunday, Mr Carneiro returned to Southgate’s office sometime later and had a further discussion with Mr Holt. Mr Carneiro’s evidence, which I accept, was that Mr Holt told him that allotment 4 was a corner block. Mr Carneiro said that at the time he thought that this was a better allotment than allotment 5, because the Plaintiffs could have side access from the road adjoining allotment 4. During the course of the discussion with Mr Holt, the plan of the allotments was in front of them.
There was a further visit to Southgate when both Plaintiffs attended on Mr Holt. Although it is not entirely clear, the evidence indicates that Mr Carneiro had earlier made an offer to purchase allotment 4. On the occasion when the Plaintiffs both attended at Southgate, discussion regarding the benefits of a corner allotment took place between the Plaintiffs and Mr Holt. It was Mrs Carneiro’s evidence, which I accept, that they discussed the “little bits” missing off the south-eastern corner of allotment 3 and the south-western corner of allotment 4 abutting the strip of land. Mr Holt informed her that they were corner cut‑offs and that all corner blocks were required to have a cut‑off for siting purposes. He explained that the corner allotments were more expensive because they were in fact corner allotments.
The evidence, which I accept, is that during this meeting with Mr Holt, Mr Carneiro reduced his offer for allotment 4 from $22,500 to $22,000. Mr Holt left the office where the meeting was taking place for the purposes of discussing the offer with Mrs Robinson. Some time later he returned and indicated that the offer of $22,000 was acceptable.
A written Contract for the purchase of the land for $22,000 was signed by the Plaintiffs on 23 June 1999 (“the Contract”). The evidence is unclear regarding whether the signing of the Contract took place at the meeting with Mr Holt to which I have referred or at a later time. On the balance of probabilities, I am satisfied that the execution of the Contract by the Plaintiffs took place on the day of the meeting.
The Defendant, Mrs Robinson, signed the Contact on 25 June 1999 and her signature was witnessed by Mrs Cross. Statements required by Section 7 of the Land and Business (Sale and Conveyancing) Act 1994 were given to the Plaintiffs on 5 July 1999. Those sections of the Statement required of the Agent were completed by Mrs Cross.
The Contract provided for settlement to take place on 16 July 1999. It appears that settlement took place on that day and allotment 4 was thereafter transferred into the names of the Plaintiffs.
Events Following Shortly After Settlement
The Plaintiffs moved quite quickly after settlement. Plans for the construction of a house on the land were prepared. Approval to construct the house was given by Alexandrina Council on 17 September 1999.
It was the Plaintiffs’ plan to have a builder construct the framework of the house, the outside cladding and other work to be done to the outside of the house. As to the interior of the house, it was the intention of the Plaintiffs that they would do most of that work either by their own labour or through the hire of sub‑contractors.
On 15 October the Plaintiffs signed a Small Works Contract with a builder. The Contract required the work to be completed by 30 November 1999. Mrs Carneiro’s evidence was that the builder’s work was completed by 30 November 1999. Mrs Carneiro said that the builder did not fix the roof on the house. She said that a roofing contractor undertook this task. She said the roofing contractor did his work at the same time as the builder.
Mrs Carneiro said that after the builder left the site, the interior consisted simply of the framework for the various rooms. Mrs Carneiro said that the Plaintiffs arranged for the gyprocking of the interior walls. She said that they did the painting in the house. She also said apart from the bedrooms, the flooring consisted of tiles. She said that the Plaintiffs did the tiling.
Mrs Carneiro’s evidence, which I accept, was that once the house reached lock-up stage and there was a functioning toilet that they would stay at the house most weekends so that they could undertake the completion of the interior of the house. She said that the Plaintiffs moved into the house permanently in October 2000.
As a result of the misrepresentations by Southgate that allotment 4 was a corner allotment, the Plaintiffs positioned the house on the land, so that they could have a large garage at the rear of the house with entry through side gates leading off the strip of land which they understood at the time was a public road. The Plaintiffs’ plan was that the gates would be included in the western fence towards the rear of the allotment. These gates would then lead into a driveway which travelled from the west to the east along the northern (rear) boundary of the land to a large garage and shed situated in the north-east corner of the land. A site plan was submitted to the Council indicating the driveway and the position of the garage and was approved by the Council on 7 September 1999.
The Plaintiffs recorded the various stages of the construction of the house by regularly taking photographs. By the end of October 1999 the timber framework of the house appears to have been completed, or was near completion. By 16 November 1999, the outside cladding of the house appears to have been completed and most of the roofing completed.
Events Relating to the Fencing of the Land
Mrs Carneiro first became aware that the strip of land on the western side of her property was not a public road when she made enquiries of the Alexandrina Council regarding the fencing of the allotment. The Plaintiffs wanted to fence the land on the sides and to the rear. Mrs Carneiro telephoned the Alexandrina Council in late October seeking advice regarding the fencing on the western side, which she understood bordered a public road. She was told by an officer of the Alexandrina Council that it was not a public road, but was a road owned by the person who owned allotment 1 to the north of Mrs Carneiro’s allotment. Her evidence was that she was surprised to learn this, because relying on the representations of Southgate, she had understood the strip of land to be a public road. I accept that evidence.
Mrs Carneiro obtained a quote for the fencing on 2 November 1999. She was aware that the owner of allotment 1 was Mrs Robinson. On 2 November 1999, she sent a letter to Mrs Robinson enclosing the quote for the construction of the fence, a Notice of Intention to Erect a Fence under the Fences Act 1975 and the site plan of the property. The site plan identified a garage in the north-eastern corner, with roller doors facing the western boundary of the property, being the boundary which abuts the strip of land. The plan indicated that the northern side of the garage was to be included as part of the fence on the northern side. It also indicated that the eastern side of the garage was to be included as part of the fence on the eastern side of the land. Mrs Carneiro said that she still believed, at that time, that Mrs Robinson was the owner of allotment 5. The site plan also depicted in the western fence, gates opening into the strip of land. In the letter to Mrs Robinson, Mrs Carneiro made the following statement:
You will note that we plan to have gates in the rear left-side and would like to utilise the garage walls to form part of the fence on the rear-right and right-hand side.
The fences and garage were to be constructed of colorbond.
It was Mrs Carneiro’s evidence, which I accept, that whilst she was aware that the strip of land was not a public road, it was her belief that it was a road owned by Mrs Robinson.
Shortly after 25 November 1999, the Plaintiffs received a Cross-Notice under the Fences Act from Mrs Robinson dated 25 November 1999 setting out three grounds of objection to the Notice given by the Plaintiffs. The first of those grounds of objection was expressed in the following terms:
Gates opening onto my property L. rear-side.
In other words Mrs Robinson was objecting to the gates to the rear of the proposed western fence. She also informed the Plaintiffs in that Notice that allotment 5 had been sold.
Conversations Following the Plaintiffs’ Receipt of Cross-Notice
The receipt of the Cross-Notice by the Plaintiffs from Mrs Robinson, shortly after 25 November 1999, sparked a series of conversations between Mrs Carneiro and Mrs Cross; Mrs Carneiro and Mrs Robinson; Mr and Mrs Cross and Mrs Robinson; Mrs Cross and Mrs Robinson and Mr and Mrs Carneiro and Mr and Mrs Cross. There are significant differences in the evidence of each person regarding their recall of the substance of the conversations in which they were involved.
At this point it is convenient to undertake an evaluation of the credit of each of the witnesses. This is particularly necessary as findings will need to be made regarding the contents of each of the conversations where there is conflict in the evidence between the parties to the particular conversation.
Evaluation of the Credit of the Witnesses
It needs to be said, from the outset, that at the time of Trial, nearly five years has passed since the conversations took place. The conversations were held in the latter part of 1999 and the early part of the year 2000. The earliest that any of the parties to the various conversations would have needed to recall the contents of any conversation in which they were involved would have been some time after January 2002 being the date of a letter which Mrs Robinson wrote to the Plaintiffs complaining of their use of the strip of land demanding that they cease using the land. As I stated earlier, it was this letter which was the catalyst for these proceedings. In evaluating the reliability of each of the witnesses, and in particular with respect to conversations, I do so bearing in mind the passage of time which has passed.
I now turn to consider the credit of each of the witnesses.
(i) Evidence of Mrs Carneiro
I thought she was an honest witness who at all times tried to tell the truth. I thought she was frank even if her answer or answers may not have been completely supportive of her case. I thought she answered questions in a frank manner throughout her evidence.
I felt Mrs Carneiro had a reasonably good memory of events and conversations. There may have been elements of subconscious reconstruction on some occasions in giving her evidence, but generally I thought her memory was reasonably sound. Overall I felt that she was a convincing witness on whose evidence I could for the most part rely. I prefer Mrs Carneiro’s evidence where it is in conflict with any other witness.
(ii) Mr Carneiro
I did not think that Mr Carneiro had as reliable a memory as Mrs Carneiro. I felt he tried to tell the truth. I thought that he indulged occasionally in unconscious reconstruction. He had a lesser role to play than Mrs Carneiro as he was not involved in many of the critical conversations. Overall, I thought I could rely on his evidence, except where it conflicted with Mrs Carneiro. In those circumstances, I prefer the evidence of Mrs Carneiro.
(iii) Mrs Robinson
I found her to be a poor witness. I thought she was for the most part unimpressive. She displayed a poor memory including her memory of conversations. Regrettably, at times I thought she was disingenuous when giving her evidence. I have already commented on her evidence of the conversation she held with Mr Cross regarding the variation in prices between allotments 3 and 4 and allotments 2 and 5. Regrettably, I became concerned with her evidence regarding the explanation for the variation in prices. I suspected that she was not being frank. I gained the impression that Mrs Robinson was at pains throughout her evidence to distance herself from any suggestion that she considered or was interested in subdividing the broad acres she owned other than the four allotments. I thought her conscious effort to distance herself reflected poorly on the evidence she gave.
These attempts to distance herself from any interest in any further subdivision was also apparent when she gave her evidence regarding the production of the 1988 plan. Her evidence that the plan emerged “out of the blue” without any involvement by her bordered on the bizarre. I mentioned that she started to have second thoughts about that evidence. I felt that she was having second thoughts because she recognised how incredulous the evidence appeared.
I should mention that I do not accept her evidence that she was never interested in considering the subdivision of the broad acres.
I mentioned earlier, that at times I thought Mrs Robinson was disingenuous in giving her evidence. I have earlier given an example of where I thought she was not being frank. Another occasion related to her evidence regarding a telephone conversation she held with Mrs Carneiro in about the third week of December 1999. Mrs Robinson said that in that telephone conversation she suggested to Mrs Carneiro that there was considerable room on the western side of the house to still place a driveway, but Mrs Carneiro replied that they had already made their plans and they had no intention of altering them. At that point in time, there was room on the western side of the house adjacent to the strip of land to run a driveway from Arthur Street to the back of the house. The land had not been developed to the point that such a driveway could not be constructed. I felt that Mrs Robinson was disingenuous in giving this evidence.
When Mr Dal Cin, Mrs Robinson’s Counsel, was putting to Mrs Carneiro, Mrs Robinson’s version of the conversation during cross-examination, he did not mention anything about Mrs Robinson suggesting to Mrs Carneiro that there was still room to run a driveway from Arthur Street along the western side of the allotment. I have no doubt Mrs Robinson recognised that the capacity of the Plaintiffs to change their plans at that time may have been an important matter in the Trial. Such a conversation was important. It was something which could be expected would have been put to Mrs Carneiro. Mr Dal Cin is an experienced Counsel. The only reasonable inference which can be drawn is that it was not put to Mrs Carneiro because it was not part of Mr Dal Cin’s instructions.
There were other parts of Mrs Robinson’s evidence which I thought were incredulous. I have mentioned earlier her evidence regarding the 1988 plan of subdivision, which was but one example. There were other examples, but I do not stay to give further examples.
Whilst I was at times most dissatisfied with Mrs Robinson’s evidence, there were discrete parts upon which I am prepared to rely.
(iv) Mr Cross
I thought that Mr Cross struggled on many occasions with his recollection. Generally, I thought that his memory was not particularly good. As a result of this, some of his evidence was confusing. There were occasions when he indulged in some reconstruction. Where his evidence conflicts with the evidence of Mrs Carneiro or Mr Carneiro I am not prepared to rely on that evidence. There were occasions when I preferred his evidence to that of Mrs Robinson.
(v) Mrs Cross
Mrs Cross displayed a defensive attitude throughout her evidence. She seemed to be anxious to protect the position of Southgate and appeared anxious to distance herself and Mr Cross from any fault. I thought that her evidence suffered as a result of this. This attitude was particularly evident regarding the evidence of contact she had with Mrs Carneiro. I felt that her memory of events was limited. Where her evidence conflicted with the evidence of Mr Carneiro and Mrs Carneiro, I prefer the evidence of Mr Carneiro and Mrs Carneiro.
Events Following the Delivery of the Plaintiffs’ Notice to Fence to Mrs Robinson
I mentioned some time ago that early in November 1999, the Plaintiffs served on Mrs Robinson a “Notice of Intention to Erect a Fence” under the Fences Act. The Notice enclosed plans which indicated gates opening onto the strip of land and a garage in the north-east corner of the property with roller doors facing in a westerly direction, being in the direction of the double gates identified on the plan.
I also earlier mentioned, that the Cross-Notice from Mrs Robinson objected to the presence of the double gates in the fence. This objection led to the series of conversations which I identified earlier. I now turn to consider the evidence relating to these various conversations.
(i) First Conversation Between Mrs Carneiro and Mrs Cross
This conversation is likely to have taken place in late November or early December 1999. It is Mrs Carnerio’s evidence that she telephoned Southgate and was put through to Mrs Cross. She said that she had not spoken to Mrs Cross prior to this occasion. Mrs Cross provides a different version of the first discussion she had with Mrs Carneiro in that she said that conversation took place at the reception area of Southgate when Mrs Cross was looking for Mr I said earlier that I prefer the evidence of Mrs Carneiro where it conflicts with the evidence of any other witness. I accept the evidence of Mrs Carneiro regarding the circumstances of the first conversation she had with Mrs Cross and its contents.

Mrs Carneiro said that she explained to Mrs Cross that she had sent a Notice to Fence to Mrs Robinson and had received a Cross-Notice which contained objection to gates opening onto the strip of land. Mrs Carneiro said that she told Mrs Cross that Southgate had informed the Plaintiffs that it was a corner allotment with side and rear access, and that when they purchased the land they made their plans on that basis. Mrs Carneiro said she asked Mrs Cross what was going on. Mrs Carneiro said that Mrs Cross informed her that she could not see that side access would be a problem because the strip of land was set aside as proposed roadway in any future development and that rear access was probably a typing error. Mrs Carneiro said that she told Mrs Cross that the house was built and they were at the stage of erecting fences and a garage. Mrs Carneiro said that the conversation concluded with Mrs Cross stating that she would get in touch with Mrs Robinson and come back to her.
I should mention that Mrs Cross was familiar with the allotments which Mrs Robinson had placed with Southgate for sale and in particular the sale of allotment 4. I mentioned earlier that the Part C Statement required to be prepared under the Land Agents legislation was signed by Mrs Cross and dated 5 July 1999. Mrs Cross said that she gave the Part C Statement to the Third Defendant, Mr Peter Holt, after she had signed it, because he had transacted the sale between the Plaintiffs and Mrs Robinson.
First Conversation Between Mrs Robinson and Mrs Cross
There is a conflict between the evidence of Mrs Robinson and Mrs Cross regarding this first conversation. Mrs Cross said that Mrs Robinson telephoned her after receiving the Fencing Notice indicating that she was unhappy with the gates in the side fence. She does not recount any other part of the conversation.
On the other hand, Mrs Robinson did not give any evidence of any conversation about the Notice to Fence. It was her evidence that Mrs Cross telephoned her and advised her that the property had been advertised with rear and side entrance and that Mrs Carneiro was concerned with the terms of the Cross-Notice. This evidence ties in with the evidence of Mrs Carneiro regarding the first conversation she had with Mrs Cross. I am satisfied that the conversation which Mrs Robinson had with Mrs Cross took place after the first Carneiro telephone conversation. I reject the evidence of Mrs Cross that the first conversation took place with Mrs Robinson upon her receiving the Notice to Fence.
I accept the evidence of Mrs Robinson that Mrs Cross asked whether she would allow Mrs Carneiro access. Mrs Robinson told Mrs Cross that she did not want any encumbrances on her property. She told Mrs Cross that if it was not necessary, she would not allow access, but she needed to obtain some advice.
(ii) Meeting Between Mrs Robinson and Mr and Mrs Cross in Early December 1999
A meeting was held at Strathalbyn in the early part of December 1999 between Mrs Robinson and Mr and Mrs Cross. It was likely to have occurred on 2 December 1999. I am satisfied that this meeting was arranged as a result of the telephone conversation which Mrs Robinson had with Mrs Cross in late November or early December 1999. Mr Cross said that it was the objective to try to obtain some form of legal or written agreement for the Plaintiffs to have access to the rear side of their allotment through the strip of land. I find that both Mr and Mrs Cross were aware by then that the allotment 4 had been misrepresented as a corner allotment with side and rear access.
Both Mrs Robinson and Mr and Mrs Cross’s respective memories of the conversation held at the meeting were only fair. There is some common ground regarding some matters which were said and there are some conflicts between them.
After considering the evidence of each of the parties to the conversation held at the meeting, I am satisfied that the following was conveyed by Mrs Robinson to Mr and Mrs Cross:
·That she declined to grant an easement over the strip of land;
·That she declined to provide written approval for the Plaintiffs to have access to the land;
·That it was unlikely that she would prevent the Plaintiffs from having access to the strip of land.
I find that there was discussion between the parties regarding subdivision of the land to the rear of the allotment, but Mrs Robinson indicated that she was not interested in any further subdivision at that time.
I do not accept Mrs Robinson’s evidence that she said to Mr and Mrs Cross that she would not be “policing” whether Mr and Mrs Carneiro or anyone else was using the land. As I said, I find that she said to Mr and Mrs Cross that it was unlikely that she would prevent the Plaintiffs from having access to the strip of land but was not willing to put anything in writing. I also find that Mrs Robinson knew that Mr and Mrs Cross would convey her views to Mrs Carneiro. Indeed, I find that Mrs Robinson intended that Mr and Mrs Cross convey her views to Mrs Carneiro.
(iii) Telephone Conversations Between Mrs Carneiro and Mrs Cross After 2 December 1999
A meeting was held between Mr and Mrs Carneiro and Mr and Mrs Cross about 20 December 1999. However, the evidence of both Mrs Carneiro and Mrs Cross are that there was at least one and possibly more telephone calls between them before the meeting. Mrs Carneiro gave evidence of a telephone conversation with Mrs Cross, which took place before their meeting, in which Mrs Cross said that she had spoken to Mrs Robinson and that although Mrs Robinson would not put anything in writing, Mrs Robinson said that she would not hinder the access of the Plaintiffs to their property by way of the strip of land. Mrs Carneiro said that Mrs Cross suggested that in those circumstances the Plaintiffs should go ahead with their plans.
During cross-examination, Mrs Cross said that she can recall a telephone conversation with Mrs Carneiro regarding access, after the meeting with Mrs Robinson at Strathalbyn. Her evidence was:
I would have said that Mrs Robinson is not prepared to put anything in writing but she probably won’t stop you using it.
After this length of time there will be differences between parties to conversations regarding words used. It is likely that reconstruction has to some extent played a role where evidence is given of conversations held such a long time ago. However, as I said earlier, I have found Mrs Carneiro to be a witness on whose evidence I am prepared to rely upon. I am certainly prepared to accept her evidence where it conflicts with the evidence of Mrs Cross for reasons I have expressed. Accordingly, I accept the evidence of Mrs Carneiro that Mrs Cross advised her that Mrs Robinson would not hinder the Plaintiffs’ access, although she would not put anything in writing.
I also accept the evidence of Mrs Carneiro that Mrs Cross suggested that the Plaintiffs should go ahead with their plan. In my opinion, Mrs Cross always held a belief that the remainder of the land, being allotment 1, would eventually be subdivided and the strip of land would become a road as it had been originally designed. This belief would have given confidence to Mrs Cross to make such a statement.
(iv) Meeting Between the Plaintiffs and Mr and Mrs Cross
Mrs Carneiro said that whilst she had received information that Mrs Robinson would not hinder their access, through Mrs Cross by telephone, she and her husband were still uneasy. As a result she made an appointment to meet both Mr and Mrs Cross. This meeting was held on about 20 December 1999.
I thought that Mrs Carneiro displayed a reasonable memory of what was discussed at the meeting, when considered against a background of the time which has elapsed. I concluded that of all the witnesses who were present at the meeting that her evidence is to be relied upon in preference to the others. Mr Carneiro’s memory of the meeting was quite limited. These findings are consistent with my earlier conclusion that I can rely upon the evidence of Mrs Carneiro.
I felt that Mr Cross had a relatively poor memory of what was discussed at the meeting. After the meeting he made some notes of matters discussed at the meeting and this assisted in giving his evidence. In my view, without those notes he had an extremely limited memory of any discussions which were held.
As I said, Mrs Carneiro said that she arranged for the meeting to be held because she was still uneasy about the Plaintiffs’ position, despite receiving verbal permission to use the strip of land. She said that the Plaintiffs were anxious to have a written record of the consent to use the strip of land for access and they wanted such consent to endure into the future so that a transferee of the land would have the same benefit.
At the meeting, the Plaintiffs expressed their annoyance that it had been represented to them that the land was a corner allotment with side and rear access and it has turned out that such a representation was false. The evidence does not indicate which of the Plaintiffs made specific comments during the course of the meeting. I find that it is likely that Mrs Carneiro would have done most of the speaking. The evidence from Mrs Carneiro was that Mr and Mrs Cross were informed that the plans for the house and its positioning on the allotment were based upon the fact that it was a corner block and access could be obtained along the strip of land, which they understood was a road. Mrs Carneiro said that Mr Cross did not appear to realise that by that stage the outside of the house had been completed as he suggested earlier that they could re‑arrange their plans. He was informed of the current position regarding the construction of the house.
Mrs Carneiro said that Mrs Cross confirmed that Mrs Robinson had indicated verbally that she would not hinder their access. Mrs Carneiro said that Mrs Cross said, in those circumstances, they could proceed to construct their garage in the same way as Shelley had on allotment 3. She said Mrs Cross stated, that she did not think there would be any problem arising from the Plaintiffs going ahead with their plans.
I pause here to mention briefly that the reference to “Shelley” is a reference to Shelley Goodall who was the owner of allotment 3. Allotment 3 is on the western side of the strip of land. Shelley Goodall had constructed a garage to the rear of her land. She had double gates opening onto the strip of land.
I now continue to take up the narrative of the evidence of Mrs Carneiro regarding the meeting with Mr and Mrs Cross. Mrs Carneiro said that Mr Cross was asked whether it was possible to have some sort of letter from Southgate stating that if at any time in the future they were denied access then would Southgate guarantee compensation for the fact that they had lost access. She said that Mr Cross informed the Plaintiffs that because his insurance company would not allow him to put anything in writing that he could not agree to this, but he said that if they were denied access in the future then they would have up to 7 years to make a claim for compensation.
Mrs Carneiro said that during the meeting, Mrs Cross said that she believed that she had a buyer for portion of the land to the rear (north end) of the Plaintiffs’ allotment and that the buyer was wanting to develop the land and therefore a roadway could be constructed reasonably soon.
With respect to the evidence of Mr Cross there was some common ground between his evidence and that of Mrs Carneiro. For example, he confirmed that they could not obtain Mrs Robinson’s agreement to place anything in writing. He also confirmed that she had verbally agreed not to stop the Plaintiffs having access. He also said Mrs Cross raised the possibility of having a purchaser for the land which was allotment 1. Furthermore, he also agreed that the topic of compensation was also discussed. There are other parts of the evidence of Mrs Carneiro regarding the matters discussed at the meeting, with which he disagreed. As I said earlier, where there is a conflict in the evidence I am prepared to rely on the evidence of Mrs Carneiro.
These same comments also apply to Mrs Cross. There was little common ground. On many of the matters she denied the evidence of Mrs Carneiro. For reasons I have earlier expressed, I prefer the evidence of Mrs Carneiro.
(v) First Conversation Between Mrs Carneiro and Mrs Robinson
Mrs Carneiro said that after the meeting with Mr and Mrs Cross, the situation still did not seem satisfactory to the Plaintiffs. As a result, she telephoned Mrs Robinson later in December. Mrs Carneiro said that it was a very amicable telephone conversation in which they discussed a wide range of topics apart from the specific topic for which she called Mrs Robinson. With respect to that topic, she said that Mrs Robinson told her that she did not want to create an encumbrance over her land. Mrs Carneiro said that Mrs Robinson said that she would not come down and stop the Plaintiffs from gaining access through the strip of land, but she would not put anything in writing. Mrs Carneiro further stated that, at that time there was a bundled up old rural fence which had originally run across all of the allotments. She said she told Mrs Robinson that this was in a dangerous position on the strip of land. Mrs Carneiro said that Mrs Robinson told her that if it was creating a problem then Mrs Carneiro should remove it.
Mrs Robinson said that she thought she only ever held one telephone conversation with Mrs Carneiro. In her evidence she addressed in its entirety that one telephone conversation. Mrs Carneiro’s evidence is that she held two telephone conversations with Mrs Robinson. Accordingly, I find that there were two telephone conversations with Mrs Robinson.
In her evidence Mrs Robinson said that what she said to Mrs Carneiro is that she lived at Littlehampton and would not be coming down to police whether Mrs Carneiro used the strip of land for access, but she did not give permission for access. Mrs Robinson had also used the word “policing” when she gave evidence regarding the conversation she had with Mr and Mrs Cross at Strathalbyn. I though, with respect to that evidence, that she did not have an independent recollection and was reconstructing in a way which shed the best light from the perspective of her case. I felt that this was another example of Mrs Robinson being disingenuous.
I have earlier criticised Mrs Robinson’s evidence regarding the conversations she said she had with Mrs Carneiro regarding the use of the western side of the house for a driveway. I also found her evidence that she told Mrs Carneiro that she would not be coming down to police their use but she does not give consent, and Mrs Carneiro’s response that she would not tell her husband, to be incredulous. I do not accept it.
(vi) Second Telephone Conversation Between Mrs Carneiro and Mrs Robinson
On 23 December 1999 or shortly thereafter, Mrs Carneiro sent to Mrs Robinson by post a “Fencing Work Agreement”. She dated it 23 December 1999. She was seeking Mrs Robinson’s written agreement to paying her share of the costs of the construction of the fence to the north of the Plaintiffs’ allotment and to the west (bordering the strip of land).
Mrs Carneiro said that she telephoned Mrs Robinson in probably the second week in January enquiring about the return of the Fencing Agreement. She said that further discussion took place about the problem of the allotment not being in fact a corner allotment. She said that during that conversation Mrs Robinson mentioned that she might construct a new fence to replace the old rural fence together with a gate and padlock on it and that she would give Mrs Carneiro a key so that she could gain access through the gate. Mrs Carneiro said that Mrs Robinson said that she did not want “all and sundry” traversing her land. Mrs Carneiro said that the conversation was an amicable one.
Mrs Robinson denied that such a conversation took place.
Mrs Carneiro said that Mrs Robinson also told her that she had not made the strip of land a road at the time of the subdivision of the four allotments because of the cost of construction of a road ran into telephone book numbers.
I accept all of the evidence of Mrs Carneiro regarding this conversation.
(vii) Telephone Conversation Between Mrs Carneiro and Mrs Cross
A short time after 25 January 2000, the Fencing Work Agreement was returned to Mrs Carneiro by Mrs Robinson. Mrs Robinson had signed the Agreement, indicating that she was agreeable to paying her share of the fencing. The Fencing Work Agreement contained a statement that the garage wall to the rear was to form part of the rear fence. At the bottom of the document Mrs Robinson wrote the following endorsement:
P.S. N.B. there is no permission for access to Lot 1.
Mrs Carneiro said that shortly after receiving the Fencing Work Agreement from Mrs Robinson, she telephoned Mrs Cross and referred her to the endorsement at the foot of that Agreement. She said to Mrs Cross that Mrs Robinson had agreed to the garage but the endorsement indicated that she could not gain access to the garage. She asked where that left her. She said that Mrs Cross said that as Mrs Robinson had given verbal permission she could not see any reason why the Plaintiffs should not proceed with their plans. I accept the evidence of Mrs Carneiro.
This was the last occasion that Mrs Carneiro spoke to Mrs Cross.
Events Following January 2000
On 29 February 2000, Mrs Carneiro wrote to Mrs Robinson seeking payment of her share of the fences. In that letter she advised Mrs Robinson that the fences had been erected in accordance with the Fencing Work Agreement.
Mrs Carneiro said that in April 2000 she consulted with Mr Janson, a solicitor. She said that at time it was her belief the Plaintiffs had verbal consent to access to the strip of land but she consulted with Mr Janson for the purpose of seeing what could be done regarding a more definite arrangement.
Mr Janson wrote to the Third Defendant, Mr Peter Holt, alleging misrepresentations on the basis it was represented to the Plaintiffs that the land had side and rear access. Mr Janson, in his letter, indicated that the Plaintiffs would give up their right to rear access, if they received a right of way over the strip of land. Nothing positive came from the correspondence Mr Janson addressed to Mr Holt. Nothing was further done.
Finally, in January 2002, Mrs Robinson wrote to the Plaintiffs stating that it had come to her attention that they were frequently using the strip of land rather than the Arthur Road frontage to gain access to their property. In that letter she requested that the Plaintiffs immediately cease using the strip of land for access. As I earlier stated it was this letter which was the catalyst which has led to these proceedings.
Development of the Plaintiffs’ Property Since January 2000
I mentioned earlier in these Reasons that by the end of November 1999 the exterior of the house and the roofing had been completed. I also mentioned that the Plaintiffs employed sub contractors together with their own labour, to complete the interior of the house and certain parts of the grounds surrounding the house. By October 2000 the Plaintiffs had taken up residence permanently in the house.
The septic tank system was installed on 12 November 1999. This was a large system and the installation required the replacing of tanks under the surface of the land and placing the electrical system which operated the septic tank system also under the surface. The tanks and electrical system were placed under the ground in front of the house. The plans were that the septic system was also to connect to an irrigation system situated on the western side of the house, between the house and the western border abutting the strip of land. At that point in time the irrigation system had not been installed. It appears that at the time of installation, the plumber connected the house plumbing to the septic system. The septic system receives all of the water used in the house. It also receives all of the effluent from the toilets and proceeded to break down the effluent. Once the cycle of the system is completed it then pushes the water through the piping into the irrigation area. Apart from the tank installation, the land surrounding the house was largely undeveloped as at 30 November 1999.

On 12 January 2000, the Alexandrina Council approved the construction of the garage. It was Mrs Carneiro’s evidence that the garage was constructed some time between the date of Council approval and the end of February. It is a large garage. The opening of the garage, faces to the west and that its northern side of the garage and the eastern side of the garage eventually were included as part of the fencing on the northern boundary of the allotment and the fence on the eastern side of the allotment. The two roller doors on the garage face to the west. It was designed to take advantage of the planned double gates which were to be installed in the western side fence which abuts the strip of land so that access to Arthur Street would be through the double gates, and across the strip of land. Mrs Carneiro said that she felt that it was safe to proceed with the construction of the garage, with its opening facing to the west as she had received verbal permission to access the strip of land.
I earlier stated that the Plaintiffs had chronicled the construction of the house and the development of the land through photographs. The photographs taken on 29 February 2000 show the construction of the fences had been completed. The fence on the western boundary contained the double gates in the north-western corner. Photographs show that trellis between the front of the house and each of the side fences had been constructed. The effect of this was the land on each side of the house and to the rear of the house was now fully enclosed. Photographs show that work on the development of the land at the rear of the house and on the western side of the house had commenced in May of 2000. By August 2000 paving stones had been laid on the eastern side of the house and at the rear and on part of the western side of the house. In August 2000, there were photographs depicting the landscaping to the rear and western side of the house. By September 2000, the rear lawn and the raised garden beds had been completed. The evidence indicates that work continued on the landscaping of the property for some time. On the western side of the property, an irrigation system, connected to the septic system was laid. Water features and other landscaping have been completed by the Plaintiffs. The end result of their planning and labour is that the property has been landscaped superbly.
Mrs Robinson’s Letter to the Plaintiffs of 30 January 2002
I mentioned earlier that Mrs Robinson’s letter of 30 January 2002 addressed to the Plaintiffs, requested that the Plaintiffs immediately cease using this strip of land. Mrs Robinson had been aware that the Plaintiffs were accessing their property through the strip of land in the period from the beginning of the year 2000 to the time she wrote the letter at the end of January 2002. She had visited the area from time to time and observed evidence that it was being used. Indeed, an observation of the Plaintiffs’ property as it was being developed must have led her to the conclusion that the Plaintiffs were intending to have access to the garage solely through the side gates. The development of the land around the house would not allow access to the garage other than by that route.
Mrs Robinson said that she never formed the intention to protest to the Plaintiffs regarding the use of the strip of land by the Plaintiffs to gain access to the property until late January 2002. Mrs Robinson said that the comment in her letter that “In the interests of it being ‘good neighbour’ I have not made a protest about you entering my Property, nor have I restricted or impeded such uses in any way” was not truthful. She said that it was never her position that she never protested because she was being a “good neighbour”.
The Plaintiffs’ Case
It can be seen that there are two periods which have relevance to the Plaintiffs’ case. The first being in late May and early June 1999, when the Plaintiffs assert that they were induced into the Contract to purchase allotment 4 by Southgate’s misrepresentations. Those misrepresentations were contained in its “Property Showcase” Journal that allotment 4 was a corner allotment with side and rear access. This carried with it the implied representation or inference that the strip of land was a public road. Further, the Plaintiffs rely upon similar misrepresentations by Southgate’s salesman, the Defendant Peter Holt.
As a result of those misrepresentations, the Plaintiffs seek an order that Mrs Robinson grant to them a right of way over the strip of land. For this part of their claim the Plaintiffs rely on the following causes of action:
·The equitable remedy of proprietary estoppel (estoppel by acquisition);
·In breach of Section 52 of the Trade Practices Act1974, Mrs Robinson, through her agent, Southgate, has engaged in misleading or deceptive conduct and as a result the Plaintiffs are entitled to the relief they claim pursuant to the provisions of Section 87 of that Act;
·In breach of Section 56 of the Fair Trading Act 1987, Mrs Robinson, through her agent Southgate, has engaged in misleading or deceptive conduct and as a result the Plaintiffs are entitled to the relief they claim pursuant to Section 85 of that Act.
The Plaintiffs claim, in the alternative, that if they cannot obtain an order that Mrs Robinson grant them a right of way, then they are entitled to damages from Mrs Robinson and Southgate for the misrepresentations made to them prior to entering into the Contract. They seek damages pursuant to the provisions of the Trade Practices Act, the Fair Trading Act and the Misrepresentation Act 1972.
With respect to the claims under the Trade Practices Act and the Fair Trading Act, there is a time limit issue. It will be seen shortly that there is a three-year time limit with respect to all claims made by the Plaintiffs pursuant to the Trade Practices Act and the Fair Trading Act.
It is the Plaintiffs’ case, the cause of action accrued in either late May or early June 2002, when the misrepresentations were made. Proceedings were commenced in December 2002, so, prima facie, the Plaintiffs are out of time in commencing their proceedings seeking relief under either of those two Acts. I will return to this time limit issue later.
The second period of time relevant to the Plaintiffs’ claim is between December 1999 and January 2000. This is the period when the conversations to which I have referred a short time ago were held.
The Plaintiffs’ claim that if they are not entitled to an order for a right of way arising out of the misrepresentations of May/June 1999, then they are entitled to an injunctive order, restraining Mrs Robinson from preventing their use of the strip of land to gain access to their premises, on the basis that a promissory estoppel arises from Mrs Robinson’s representation or promise that she would not hinder their use of the strip of land to gain access to their property.
The Plaintiffs claim that Mrs Robinson personally and through Mr and Mrs Cross, promised or represented not to hinder their access across the strip of land.
It is the Plaintiffs’ case that even if an order is made preventing Mrs Robinson from interfering with the Plaintiffs’ use of the strip of land to gain access to their property, that they are still entitled to damages, for the misrepresentations in May/June 1999.
The Plaintiffs also claim that the conversations of December 1999 and January 2000 have relevance with respect to the issue of damages. Mr Randle, Counsel for the Plaintiffs, submitted they are relevant to establish that the Plaintiffs’ decision to remain in the house and to develop their land “was reasonable”. It was Mr Randle’s submission that it follows from that reasonable conduct that the Plaintiffs are entitled to assess their damages under Trade Practices Act and the Fair Trading Act at the date of Trial.
The damages which the Plaintiffs seek is the difference between the value of the property as fully developed with legal side access and the value of the property fully developed without side access. As a result of the valuation evidence the Plaintiffs claim the damages of $84,000.
Both Mr Dal Cin, Counsel for Mrs Robinson, and Mr Henry, Counsel for Southgate and Mr Holt, submitted that the measure for damages for the misrepresentations is the difference between what the Plaintiffs paid for allotment 4 and the value of allotment 4 as an allotment which was not a corner allotment with side access.
Mr Randle also submitted that these conversations and the Plaintiffs’ response to these are also relevant to the claim by the Defendants that, in any event, whatever is the position regarding damages, the Plaintiffs have failed to mitigate their loss. I will return to these issues later.
At this point I need to say that I doubt whether the issue of the duty to mitigate has any role to play. In the end, if there is actionable misrepresentation and the Plaintiffs are entitled to damages under the Trade Practices Act or the Fair Trading Act, then the issue is the time when those damages are to be measured and what is the appropriate measure of those damages. However, as I said, I will return to these issues later.
I now turn to consider the Plaintiffs’ claim in detail.
Is There Actionable Misrepresentation?
I turn to consider whether there is actionable misrepresentation here. This question is relevant to any claim under Section 52 of the Trade Practices Act and Section 56 of the Fair Trading Act. In Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Deane and Fitzgerald JJ made the following relevant observations regarding Section 52 of the Trade Practices Act (at 202):
Irrespective of whether conduct produces or is likely to produce confusion or misconception, it cannot, for the purposes of s52, be categorized as misleading or deceptive unless it contains or conveys, in all the circumstances of the case, a misrepresentation. The difficulty which will commonly arise in a s52 case is in determining whether the conduct contains or conveys, in all the circumstances, a misrepresentation and in assessing the significance to that question of evidence that one or more persons were in fact led into error.
These observations equally apply to a claim pursuant to Section 56 of the Fair Trading Act.
The issue of misrepresentation is also relevant to the Plaintiffs’ claim pursuant to the Misrepresentation Act.
It is accepted by all Defendants that misrepresentations were made by Southgate to the Plaintiffs, both in writing and orally, that allotment 4 was a corner allotment with side and rear access. An implied misrepresentation or an inferred misrepresentation also arises namely, that the strip of land adjoining allotment 4 was a public road.
There is a distinction between an implied representation and an inferred representation (Lubrano v Gollin & Co Proprietary Limited (1919) 27 CLR 113 at 118). Here, it is likely that the representation is implied. But it does not matter. What is relevant, is that the actual representations carried with it an implication or inference that the strip of land was a public road.
Clearly, the conduct of Southgate was in the course of trade or commerce (Concrete Constructions (NSW) Pty Ltd v Nelson(1990) 149 CLR 599 at 602-604).
Therefore, the only issue remaining is the question of reliance.
Whilst Southgate and Mr Holt accepted that misrepresentations were made, it was submitted that the Plaintiffs did not rely on these misrepresentations in acquiring allotment 4. Mrs Robinson did not concede that the Plaintiffs relied upon the misrepresentations Mr Dal Cin, Counsel for Mrs Robinson, submitted that the onus was upon the Plaintiffs to prove reliance.
(i) The Law
Before turning to the facts it is necessary to briefly consider the relevant principles relating to the question of reliance.
In Como Investments Pty Ltd (In Liquidation) v Yenald Nominees Pty Ltd (1997) ATPR 43, 617 the Full Court of the Federal Court made the following observation on the question of reliance (41-550):
The law does not consider cause and effect in mathematical or in philosophical terms. The law looks at what influences the actions of the parties. Acknowledging that people are often swayed by several considerations, influencing them to varying extents, the law attributes causality to a single one of those considerations, provided it had some substantial rather than negligible effect. As Brennan J. said in San Sebastian Proprietary Limited v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 at 366:
“The representation must be a real inducement or one of the real inducements to engage in the conduct which occasions the loss.”
Where a representation is relevant to the decision in question, and in its nature persuasive to induce the making of that decision, it accords with legal notions of causation to hold that it has a causative effect.
Valuable assistance is also obtained from the observations of Wilson J. in Gould v Vaggelas (1985) 157 CLR 215 (at 236).
His Honour correctly elucidated the law in this regard. He referred, inter alia, to Smith v Chadwick, Arnison v Smith, Holmes v Jones and Cheshire and Fifoot on the Law of Contract, 4^th Aust. Ed., pars. 1028, 1029 and from them drew the applicable principles, which can be restated as follows:
1.     Notwithstanding that a representation is both false and fraudulent, if the representee does not rely upon it he has no case.
2.     If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation.
3.     The inference may be rebutted, for example, by showing that the representee, before he entered into the contract, either was possessed of actual knowledge of the true facts and knew them to be true or alternatively made it plain that whether he knew the true facts or not he did not rely on the representation.
4.     The representation need not be the sole inducement. It is sufficient so long as it plays some part even if only a minor part in contributing to the formation of the contract.
(ii)    The Facts
I now come to the facts. I mentioned earlier, Mrs Carneiro said that when they first viewed the allotments she could only identify them by the “For Sale” Notices on the allotments. She said that the land was covered by undergrowth and it was impossible to identify allotment 4 or the strip of land adjoining it. She said that at the time they were not particularly looking for a corner allotment. However, Mrs Carneiro said that once she was informed that allotment 4, was a corner allotment then she and her husband realised that there was far more opportunity to utilise the land. She said that it seemed like a considerable asset to have a choice of side and rear access to the land. It was her evidence that a corner allotment gave flexibility and advantages in the way the land could be laid out. She said that she recognised that the price of allotments 3 and 4 were higher than allotments 2 and 5.
Mr Carneiro, said that at one point he was considering allotment 5, however, he agreed with Mrs Carneiro that allotment 4 was preferable, because he had been told that it was a corner allotment and this provided access from the side. Furthermore, he said that knowing that it was a corner allotment, allowed him to plan to put the garage at the back of the property instead of the front.
On the day that Mr and Mrs Carneiro signed the Contract, but prior to the actual signing of the Contract, Mrs Carneiro drew an outline of the house on allotment 4 in a plan which was on Mr Holt’s desk. On that occasion discussion was held between all of them regarding the fact that allotment 4 was a corner allotment. Mrs Carneiro said that she indicated that she could take advantage of having a side access to the rear. She said that for her personally it was aesthetically pleasing to not have driveways other than one across the rear of the property. On that occasion she marked on the north-western (rear) of the allotment, the position where gates could be placed.
All of this evidence clearly establishes that the Plaintiffs relied upon the misrepresentations when entering into the Contract and indeed were induced to enter into the Contract at the price which they paid because of the advantages that they perceived in acquiring a corner allotment.
I find that the Plaintiffs relied on the misrepresentations and were induced to acquire the land by those misrepresentations. As a result, Southgate is liable for those misrepresentations.
Was Mrs Robinson Aware of Southgate’s Misrepresentations?
It is accepted by Mr Dal Cin, Counsel for Mrs Robinson, that on common law principles that Southgate was acting within its ostensible or apparent authority and that as a result Mrs Robinson, at common law, is liable for her agents’ misrepresentations. Whether Mrs Robinson is “vicariously” liable for her agents’ misrepresentations under the Trade Practices Act or the Fair Trading Act is a matter which will require consideration later.
However, it is Mrs Robinson’s position that the only way that liability can be placed at her feet is through the ostensible or apparent authority of her agents. She denies that her agents had actual authority to make the misrepresentations. I have already accepted the evidence of Mr Cross that it was only agreed to market the land as having the potential to become a corner block. Accordingly, I find that the agents were not acting within the actual authority of Mrs Robinson in making the misrepresentations.
Mr Randle submitted that although Mrs Robinson did not give actual authority she became aware that the allotment was being marketed on the basis of misrepresentations prior to the entering into the Contract. It was his submission that this is a relevant factor with regard to her liability under the Trade Practices Act and the Fair Trading Act and that if that is the case the Plaintiffs do not need to rely upon establishing Mrs Robinson’s liability through the conduct of Southgate.
I now turn to that issue.
Mrs Robinson denied that she knew that the land was being advertised as a corner allotment. Indeed, she denied any discussion with Mr Cross that allotments 3 and 4 should be marketed as potential corner allotments. I have dealt with this evidence earlier. I do not intend to repeat it. I have found that Mrs Robinson agreed with Mr Cross that allotments 3 and 4 would be marketed as having the potential to become corner allotments.
This decision to market allotments 3 and 4 as potential corner allotments has had fatal consequences. I have earlier referred to the advertising in the Southgate Journal indicating allotment 4 was a corner allotment. There has been no explanation as to the reason for allotment 4 being marketed as a corner allotment instead of a “potential” corner allotment. Mr Holt was in charge of selling the allotments, including allotment 4. He was not called to give evidence. Mr and Mrs Cross were also involved in the selling of these allotments but neither of them offered any explanation regarding how the error occurred.
There is no evidence to establish that Mrs Robinson had an opportunity to peruse the advertisement in the Southgate Brochure.
There was further advertising of the land in “The Advertiser”, and other publications. Some of this advertising referred to two of the allotments being corner allotments.
Mrs Robinson denied that she ever looked at any advertisements relating to the sale of the land. She said that she left the marketing of the land, the advertising and the content of the advertising to Southgate. The agreement was that she would pay $200 advertising and marketing costs for each allotment.
Mr Randle, Counsel for the Plaintiffs, submitted that I should reject this evidence and be satisfied on the balance of probabilities that Mrs Robinson did observe advertising of the four allotments, where reference was made to two of the allotments being corner allotments.

Mr Dal Cin, submitted that the Plaintiffs’ claim for promissory estoppel falls at the first hurdle, because of Mrs Robinson’s endorsement at the foot of the Fencing Work Agreement. That endorsement was, “PS NB there is no permission for access to Lot 1”. At the time of the return of the Agreement Mrs Robinson was aware that it was the intention of the Plaintiffs to install double gates in the western fence for the purpose of gaining access to their property with motor vehicles from Arthur Road, using the strip of land. It was Mr Dal Cin’s submission that Mrs Robinson had made it clear that there was to be no access to the strip of land.
I have found that Mrs Robinson had promised or represented to the Plaintiffs that she would not hinder the Plaintiffs use of the strip of land to gain access to the rear of their property. It was a plain and unambiguous promise or representation. The statement by Mrs Robinson to Mrs Carneiro in the second telephone conversation said that she is considering placing a gate across the entrance to the strip of land and that she would give Mrs Carneiro the key, highlighted the clarity of the promise and that it was to endure in the future. The plans for the fencing had indicated that it was the Plaintiffs’ intention to gain access to the garage through the double gates at the rear of the property.
In my view, the representation or promise not to hinder led to the Plaintiffs assuming that a legal relationship existed between them and Mrs Robinson, and Mrs Robinson would not be free to withdraw from the relationship. The legal relationship assumed was that the Plaintiffs were entitled to access over the strip of land. Without the representations the Plaintiffs would be trespassers if they used the strip of land without the permission of Mrs Robinson. Mrs Robinson’s knowledge of the double gates, the siting of the garage in the side of fence, and the reference by Mrs Robinson to placing a gate across the strip of land and giving a key to Mrs Carneiro indicated to the Plaintiffs that Mrs Robinson was not free to withdraw from the assumed legal relationship. In other words, that the promise not to hinder was intended to continue in the future. It is clear from what I have said that the representations or promises induced the Plaintiffs to make the assumption. It was the intention of Mrs Robinson that the Plaintiffs would act on that assumption.
So far, I have confined my comments to the oral promises or representations made directly by Mrs Robinson to Mrs Carneiro and through Mrs Cross to Mrs Carneiro.
However, it is necessary to give consideration to the role played by Mrs Robinson’s endorsement at the foot of the Fencing Work Agreement that there was no permission for access to allotment 1. Before I consider its role, I wish to make reference to the period following the receipt by Mrs Carneiro of the Fencing Work Agreement which must have been about early February 2000.
Earlier, I mentioned that by 29 February 2000 the fences had been constructed by the Plaintiffs and trellis had been erected between the front of the house and the side fences so that the land at the sides of the house and the back yard were completely surrounded by fencing and trellising. Work continued in developing the land on the western side of the house and the rear of the house during 2000. An irrigation system was installed on the land at the western side. Water features and garden features were developed in the rear section.
It was Mrs Robinson’s evidence that she had driven past the Plaintiffs’ property many times (T436.12). She had observed that at one point the Plaintiffs had planted trees in the strip of land. Mrs Robinson said that she had a lawyer write to the Plaintiffs about these trees and, as a result, the Plaintiffs removed the trees. Mrs Robinson was aware that the Plaintiffs were using the strip of land to gain access to their property through the side gates. Through her visits to her land Mrs Robinson must have observed the development of the Plaintiffs’ property which provided access to the garage only through the side gates in the western fence. During this entire period she did not utter any protest that the Plaintiffs were using her land without her permission.
In my opinion, this evidence has a two-fold purpose. The first is that it supports the evidence that she represented or promised that the Plaintiffs could use her strip of land without hindrance. At the time Mrs Robinson had her lawyer write about the trees growing, surely it would be expected that if the Plaintiffs were using the strip of land for access, without her permission, that this was the time to make her position clear. Mrs Robinson said she had no intention of making a protest prior to January 2002, but that she reserved the right to protest. I do not accept that qualification. The reason she had not formed an intention to protest prior to January 2002 is because she had promised not to prevent the Plaintiffs using the strip of land. There is no evidence to explain what motivated her to send the letter in January 2002. It would be idle to speculate.
I mentioned that the utility of the evidence regarding Mrs Robinson’s visits to her property and the fact that she did not protest for two years was two-fold. The second, is that it allows the endorsement at the foot of the Fencing Work Agreement that there is no permission for access to Lot 1 to be understood. It is Mrs Carneiro’s evidence that the Plaintiffs proceeded with development of their property with focus on access to the garage through the double gates because they relied on the promises or representations of Mrs Robinson. She said that whilst they wished for more, they were prepared to proceed relying on the oral promises or representations. She said that when she read the endorsement on the Fencing Work Agreement that caused her concern.
However, Mrs Carneiro said she formed the view that by writing the endorsement Mrs Robinson was not indicating that she would stop access to the land. She said Mrs Robinson had given her verbal permission and that she had given her permission to site the garage opening towards the double gates. Mrs Carneiro said that she thought that Mrs Robinson had written the endorsement to safeguard her against something in the future. She did not explain what she meant by this.
Mr Randle, Counsel for the Plaintiffs, in his address, submitted that the endorsement is to be understood on the basis that Mrs Robinson did not want to be seen as agreeing to fencing which contained gates, in case it indicated that she was providing a legal right to the Plaintiffs’ use of the strip of land.
The evidence of Mrs Robinson is that she wrote the endorsement to ensure that the Plaintiffs understood clearly that she would not give them access. I do not accept that evidence. I have found that she made the promise or representation not to hinder. I have rejected her evidence on this topic in the conversations she held with Mrs Carneiro. Her failure to protest to the Plaintiffs in 2000 and 2001 supports the finding I have made. In those circumstances, what then was Mrs Robinson’s purpose in writing the endorsement? The submissions by Mr Randle provides a rational explanation for the endorsement. The evidence is consistent with his rationalisation.
In my opinion the Plaintiffs were entitled to continue to rely upon the promise that Mrs Robinson would not hinder their access. The fact that no protest was made for two years supports the view they took.
With respect to Mrs Robinson’s failure to protest for two years, Mr Dal Cin, Counsel for Mrs Robinson, submitted that her failure to take any action regarding the use of the strip of land until January 2002 needs to be viewed in the context of advice from Mr Janson, Solicitor for the Plaintiffs, on 26 October 2000, that she did not need to do anything with respect to a letter that he had sent to Mr Holt. I have referred to this evidence earlier.
Mrs Robinson, in her evidence, did not state that the information she received from Mr Janson influenced her decision not to protest about the use of the land until January 2002. Her evidence is that she reserved the right to protest. In any event, it cannot be inferred from the terms of the letter and the subsequent conversation with Mr Janson that Mrs Robinson was lulled into an inactive state regarding the Plaintiffs’ use of the land for access.
Accordingly, I reject the submission of Mr Dal Cin.
The conclusion I have reached on the evidence makes it clear that the Plaintiffs acted in reliance of the assumption that Mrs Robinson would not hinder their access, and that Mrs Robinson had always intended that the Plaintiffs would rely on the assumption. It is also clear that if the assumption is not fulfilled the Plaintiffs will suffer detriment. They will need to demolish sections of their landscaping and development on the western side of their property and sections of the rear yard in order to construct a driveway which has an entrance at Arthur Road. The driveway will need to traverse part of the rear portion of the Plaintiffs’ property in order to gain access to the garage. Mrs Robinson has failed to act to avoid that detriment by indicating that she is not prepared to continue to honour her promise that she will not hinder the Plaintiffs’ use of the land to gain access to their property through the double gates.
For the reasons I have expressed, the Plaintiffs have succeeded in their claim of promissory estoppel. An injunction will need to be granted to ensure that Mrs Robinson does not hinder the Plaintiffs’ access to their property across the strip of land.
I now turn to consider the Plaintiffs’ claim for damages.
Claim for Damages
The Plaintiffs extant claims for damages for the misrepresentations are either pursuant to Section 84 of the Fair Trading Act or Section 7 of the Misrepresentation Act.
First, I propose to consider the claim for damages under the Fair Trading Act. As I mentioned earlier, the Plaintiffs’ claim for damages is for the sum of $84,000. This is based upon the valuation of Mr David Wright. Mr Wright was of the opinion that the current market value of the Plaintiffs’ property with legal access, over the strip of land, was $252,000. He said that the current market value of the property without legal access was $168,000, thus resulting in a difference in value of $84,000.
All of the Defendants submitted that the Plaintiffs’ claim for damages was fundamentally flawed because there is no support, in principle, for the Plaintiffs’ submission that the damages should be measured at the date of Trial. Each of the Defendants submitted that in a case such as this, the measure of damages is the difference between the price paid for the land and the value of the land, as a piece of land which was not a corner allotment with side and rear access. In other words, the measure of damages applicable to the tort of deceit.
On the other hand, as I mentioned earlier, Mr Randle submitted that in the circumstances of this case, the Plaintiffs are entitled to measure their damages at the date of Trial. It was Mr Randle’s submission that the date of Trial is the appropriate time for the measure of damages because the Plaintiffs are still living on the property which they had originally acquired as a result of the misrepresentations by Southgate. He said that in the “real world” the Plaintiffs were not in a position from January 2000 onwards to “gather” their money from the property and place into another property. He said at that time there was a partially constructed house on the land and there had been some further development of the land apart from the house. Mr Randle submitted that in the circumstances which pertained at that time and taking into account what transpired in the conversations between Mrs Robinson and Mrs Carneiro, Mr and Mrs Cross and the Plaintiffs in the period January 1999 to December 1999, it was reasonable conduct on their part to elect to remain at the property. Accordingly, Mr Randle submitted that the Court is required to compensate the Plaintiffs for their “real loss”. It was his submission that the “real loss” was measured at the date of Trial by taking into account the valuations of Mr Wright.
It is necessary to review the relevant authorities regarding assessing damages pursuant to Sections 82 of the Trade Practices Act. They provide valuable assistance in assessing damages pursuant to Section 84 of the Fair Trading Act.
In Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1, it was the view of the High Court that with respect to conduct which is misleading or deceptive, the most appropriate measure of damages for a claim under Section 82 of the Trade Practices Act is the measure of damages in tort.
In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, Mason CJ and Dawson, Gaudron and McHugh JJ, in a joint Judgment, made the following observations regarding the measure of damages under the Trade Practices Act where there has been a breach of Section 52 (at 526):
In determining when a plaintiff first suffers economic loss or damage in an action under s.82(1) based on misleading conduct constituting a contravention of s.52, it is necessary to have regard to the applicable measure of damages. In this respect, it would not be right to conclude that the measure of damages recoverable under the sub-section necessarily coincides with the measure of damages applicable in an action for deceit or in an action for negligent misrepresentation. The measure of damages recoverable under s.82(1) can only be fully ascertained after a thorough analysis of those provision in Pts IV and V of the Act for contravention of which the statutory cause of action may be maintained. But the common law measure of damages will in many cases be an appropriate guide, though it will always be necessary to look to the provisions of the Act with a view to ascertaining the existence of any relevant legislative intention. In a case such as the present, it may be safely be assumed that the plaintiff is entitled to recover ‘a sum representing the prejudice or disadvantage [the plaintiff] has suffered in consequence of his altering his position under the inducement’ of the misleading conduct or ‘the actual damage directly flowing from’ that conduct, to take up and adapt well‑known statements of the measure of damage applicable in an action of deceit.
Both the comments in Gates and Wardley need to be viewed in light of the observations made by the High Court in Marks v GIO Australia Holding Limited(1998) 196 CLR 494. McHugh, Hayne and Callinan JJ in their joint Judgment said (at 510):
It can be seen, therefore, that both ss 82 and 87 require examination of whether a person has suffered (or, in the case of s 87, is likely to suffer) loss or damage ‘by conduct of another person’ that was engaged in the contravention of one of the identified provisions of the Act. That inquiry is one that seeks to identify a casual connection between the loss or damage that it is alleged has been or is likely to be suffered and the contravening conduct. But once that casual connection is established, there is nothing in s 82 or s 87 (or elsewhere in the Act) which suggests either that the amount that may recovered under s 82(1), or that the orders that may be made under s 87, should be limited by drawing some analogy with the law of contract, tort or equitable remedies. Indeed, the very fact that ss 82 and 87 may be applied to widely differing contraventions of the Act, some of which can be seen as inviting analogies with torts such as deceit (eg. s 52) or with equity
(eg, s 51AA) but others of which find no ready analogies in the common law or equity, shows that it is wrong to limit the apparently clear words of the Act by reference to one or other of these analogies.
Gates did not hold to the contrary.
What is made clear from the authorities particularly in Marks is that a Court is first required to identify a causal connection between the loss or damage and the contravening conduct. Once that is done, there is nothing in Section 82 of the Trade Practices Act which suggests that the compensation awarded should be limited by drawing some analogy with common law remedies or equitable remedies. However, as Marks states some contraventions of the Trade Practices Act such as a breach of Section 52 invite analogies with tort of deceit.
These observations are equally relevant to a claim for damages pursuant to Section 84 of the Fair Trading Act arising from a breach of Section 56 of that Act.
The case law is replete with decisions under the Trade Practices Act where the measure of damages adopted for breach of Section 52 have been similar to the common law measure of damages for deceit. However, as I mentioned earlier, the circumstances of each case needs to be considered for the purpose of determining what is the appropriate measure of damages for a breach of Section 52 of the Trade Practices Act or in this case a breach of Section 56 of the Fair Trading Act.
As expressed earlier, Mr Randle, Counsel for the Plaintiffs, submitted that it would do the Plaintiffs an injustice if the measure of damages adopted was that similar to the tort of deceit. The submissions of Mr Randle have not persuaded me that this is a case where I should not adopt, by way of analogy, the measure of damages of the tort of deceit.
The measure of damages for the tort of deceit was identified by the High Court in Kizbeau Pty Ltd v WG & B Pty Ltd(1995) 185 CLR 281 in the following terms (290-291):
Actions based on s52 are analogous to actions for torts. It follows that, in assessing damages under s82 of the Act, the rules for assessing damages in tort, and not the rules for assessing damages in contract, are the appropriate guide in most, if not all, cases. …
In action for damages for deceit for inducing a person to enter a contract of purchase, which is an action that is closely analogous to an action for damages for breach of s52, the Courts have consistently held that the proper measure of damages is the difference between the real value of the thing acquired as at the date of acquisition, and the price paid for it.
As I said earlier, whilst the authorities to which I have made reference deal with the Trade Practices Act, by parity of reasoning these authorities are equally relevant to a claim under the Fair Trading Act. Adopting the measure of damages referred to in Kizbeau the damages suffered by the Plaintiffs are the difference between the purchase price of allotment 4, acquired in June 1999 and the value of the allotment without side and rear access.
The allotment was acquired on the basis it was a corner allotment with side and rear access. Mrs Robinson and Southgate had placed a higher price on it because of its potential for becoming a corner allotment. The purchase price paid by the Plaintiffs was $22,000. The Plaintiffs have not produced any valuation evidence to indicate the value of the allotment as a non-corner allotment without side and rear access. However, there is some evidence which, in my opinion, may be used to determine the value of the allotment as a non-corner allotment. Allotment 2 is not a corner allotment. Mrs Robinson said that allotment was sold in April 1998 at a reduced price. She said that for some considerable period of time after the allotments came onto the market, they were difficult to sell. Mrs Robinson said that at one point allotment 2 was reduced in price to $20,000. The evidence does not indicate what was the actual purchase price for allotment 2. However, it may be inferred that it was not greater than $20,000.
In my view, the evidence regarding allotment 2 provides assistance in determining what would have been the value of allotment 4 at the time of acquisition. The allotments were similar in size. The evidence does not indicate that allotment 4 had a greater intrinsic value than allotment 2. The difference in prices for which the allotments were marketed was on the basis of the potential of allotment 4 becoming a corner allotment. Accordingly, I am satisfied that at the time of acquisition that the value of allotment 4 would have been no greater than $20,000. As a result, the Plaintiffs’ loss arising from the misleading or deceptive conduct is $2,000.

Of course, any consequential loss suffered as a result of the misleading or deceptive conduct, apart from the loss to which I have referred, may also be recovered by the Plaintiffs. However, there is no evidence of consequential loss suffered by the Plaintiffs. This same principle of recovery of consequential loss is also relevant to any claim made under the Misrepresentation Act.
I earlier concluded that a principal can be liable for the deceptive or misleading conduct of an agent acting within the agent’s ostensible authority. It follows that all of the Defendants, are liable for the damages of $2,000. Southgate is guilty of misleading or deceptive conduct, on the basis of the advertisements in their Journal and the oral misrepresentations of Southgate’s employee, Mr Holt. The Third Defendant, Mr Holt, is guilty of misleading and deceptive conduct on the basis of his oral misrepresentations to the Plaintiffs. Mrs Robinson’s liability arises because she was “involved in the contravention” (Section 82) through her agents, Southgate.
The Plaintiffs have also claimed damages under Section 7 of the Misrepresentation Act the measure of damages under Section 7 is the same as the tort of deceit. Southgate and the Third Defendant Mr Peter Holt are guilty of the misrepresentations I have identified. Mrs Robinson is liable for her agent’s misrepresentations, as Southgate and its employee were acting in the course of Southgate’s ostensible authority as agent for Mrs Robinson. Accordingly, all three Defendants are liable to the Plaintiffs for the sum of $2,000 damages under the Misrepresentation Act.
There will be judgment for the Plaintiffs against the Defendants for the sum of $2,000.
I will hear the parties on the terms of the Injunction.
I will also hear the parties regarding any other orders and on the questions of interest and costs.