Carroll v Investments (WA) Pty Ltd
[2014] WASCA 92
CARROLL -v- INVESTMENTS (WA) PTY LTD [2014] WASCA 92
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 92 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:26/2012 | 9 APRIL 2014 | |
| Coram: | MARTIN CJ BUSS JA BEECH J | 2/05/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal upheld Order for specific performance on terms to be settled | ||
| B | |||
| PDF Version |
| Parties: | JOHN CARROLL INVESTMENTS (WA) PTY LTD |
Catchwords: | Contract Contract for sale of land as a strata lot Conditions permitting seller to terminate Whether seller had right to terminate |
Legislation: | Nil |
Case References: | Foran v Wight (1989) 168 CLR 385 Kidd v State of Western Australia [2014] WASC 99 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CARROLL -v- INVESTMENTS (WA) PTY LTD [2014] WASCA 92 CORAM : MARTIN CJ
- BUSS JA
BEECH J
- Appellant
AND
INVESTMENTS (WA) PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : SIMMONDS J
Citation : CARROLL -v- INVESTMENTS (WA) PTY LTD [2012] WASC 93
File No : CIV 2406 of 2008
Catchwords:
Contract - Contract for sale of land as a strata lot - Conditions permitting seller to terminate - Whether seller had right to terminate
Legislation:
Nil
Result:
Appeal upheld
Order for specific performance on terms to be settled
Category: B
Representation:
Counsel:
Appellant : Mr A P Rumsley
Respondent : Mr S K Shepherd
Solicitors:
Appellant : Brook Legal & Settlement Services
Respondent : Tottle Partners
Case(s) referred to in judgment(s):
Foran v Wight (1989) 168 CLR 385
Kidd v State of Western Australia [2014] WASC 99
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
1 MARTIN CJ: This appeal should be allowed for the reasons given by Beech J, with which I agree. The judgment at first instance dismissing the appellant's claim should be set aside and specific performance ordered on terms to be settled following submissions from the parties.
2 BUSS JA: I agree with Beech J.
BEECH J:
Introduction
3 The appellant (the Purchaser) entered into a contract with the respondent (the Seller) to purchase a unit within an apartment complex that was to be developed by the Seller. The contract provided that the Seller had a right to terminate in the event of certain refusals or conditional approvals of planning applications made or to be made by the Seller. The Seller made two planning applications, one of which was refused and the other conditionally approved. Subsequently, the Seller wrote to the Purchaser terminating the contract of sale.
4 At trial, the Purchaser claimed specific performance of the contract. The Seller defended the action on the basis that it had been entitled under the contract to terminate on the grounds of the refusal and conditional approval of the planning applications that it had made. The judge accepted those contentions of the Seller.
5 The Purchaser appeals against that decision. For the reasons that follow, I would uphold the appeal, and award specific performance of the contract.
The facts
6 There is no challenge to the factual findings made by the trial judge.
7 The following facts are drawn largely from the trial judge's reasons.1
Background
8 The Seller became the registered proprietor of land in Bellevue, being lot 2 on diagram 75900, and being the whole of the land in certificate of title volume 1857 folio 875 (the Original Bellevue Land).2
9 Part of the Original Bellevue Land was subject to two easements, one to the State Electricity Commission of Western Australia and the other to the Electricity Corporation (the Western Power Easements).
10 On 23 December 2004, the Seller's agent (JBA) lodged at the Western Australian Planning Commission (the WAPC) an application for approval under the Strata Titles Act 1985 (WA) of a strata plan of the Original Bellevue Land into 38 residential lots.3 The attached plan was entitled Preliminary Built Strata Plan and was dated 20 September 2004. It showed 38 units and an area to the west of the units, on the corner of Katharine and Clayton Streets on which the Western Power Easements were shown. That area was part of the land within the boundaries on the plan.
11 In late 2004, construction began on the first stage of the development.4
12 On 24 March 2005, JBA lodged, as agent for the Seller, an application to the WAPC for approval of a subdivision of the Original Bellevue Land into two lots, one lot being the land the subject of the Western Power Easements (the Easement Land), and the other lot being the remainder of the Original Bellevue Land.5 The plan, marked 'Proposed Subdivision', did not contain any details of a development of 38 units.
The Contract
13 On 21 April 2005, the Purchaser entered into a contract (the Contract) with the Seller for the sale and purchase of villa 18 (the Property) of the development at 132 Clayton Street, Bellevue.
14 The Contract provides that the settlement date would be 14 days after the date on which the Department of Land Information (DLI) issued notification that the title for the property, namely unit 18, was in order for dealing.6
15 The Contract was subject to the Purchaser obtaining finance, but the Purchaser subsequently waived that condition.7
16 By cl 3.5 the Seller is obliged to use its best endeavours to have the Proposed Strata Plan registered at DLI and new certificates of title issued for each lot as soon as reasonably possible following completion of the Complex.
17 Clause 11.1.3 provides that the Property was sold 'subject to the unit entitlement of the Property and of all other lots on the Strata Plan, as may be varied pursuant to the amendments to the common property, and all other matters, restrictions and interests shown on or annexed to the Strata Plan'.
18 Clauses 19 and 20 provide, so far as relevant, as follows:
19. Variations
19.1 The Seller may make any changes to the Proposed Strata Plan and to the Property as may be required by any competent Authority or otherwise to procure the registration of the Strata Plan provided that such modification does not materially prejudice or affect the size or value of the Property and the Buyer will make no objection, requisition or claim for compensation in respect of any such modification of the Proposed Strata Plan or the Property.
19.2 The Buyer acknowledges and agrees that (without limiting clause 19.1) the Seller may also modify and reconfigure the Complex or other buildings forming part of it and:
19.2.1 Any such changes may affect the Strata Plan and the entitlements of the Buyer and other owners of lots within the Complex;
19.2.2 The Buyer will be bound by any change under this clause; and
19.2.3 The Buyer will not make any objection or claim for compensation or seek to terminate the Contract as a result of these changes.
…
20. Conditional contract
20.1 At any time within 2 years of the date of this Contract, the Seller may, by notice in writing to the Buyer, terminate this Contract if:
20.1.1 The Seller is unable to acquire land that the Seller considers, in the Seller's unfettered decision, is suitable and necessary for the Development.
20.1.2 Any relevant Authority refuses to issue an Approval.
20.1.3 Any relevant Authority imposes any condition on an Approval and the Seller is unable or unwilling, in its complete discretion, to comply with that condition.
20.1.4 The Seller forms the opinion that the Proposed Strata Plan will not be registered by the Latest Date.
20.1.5 The Seller considers, in the Seller's unfettered opinion, that insufficient sales of proposed strata lots have been effected during the period up to the Latest Date to make the construction or strata titling of the Complex economically viable.
20.1.6 The Seller wishes to proceed with an alternative design.
20.2 If the Seller terminates this Contract in accordance with clause 20.1 the Seller must repay to the Buyer the deposit together with all accrued interest and all other money, if any, paid by the Buyer under the Contract, without deduction. Upon repayment, this Contract shall be at an end and cease to have any further effect and neither party shall have any claim against the other.
19 The following definitions in cl 29.1 are relevant:
Approvals means all approvals of any description whatsoever required by the Seller, in the Seller's complete discretion, to carry out the Development and register the Proposed Strata Plan in accordance with the Act.
Authority includes a government, a local, statutory or public authority, and a person entitled to carry out a statutory function.
Complex means the residential unit complex which is to be erected on the Land and more particularly described in the Proposed Strata Plan.
Development means the development of the Land by the construction of the Complex on it in accordance with the Proposed Strata Plan and Specifications, including but not limited to subdivisional works, surveys, grants of easements, the installation of services and all other works necessary to complete and fit out the Complex.
Proposed Strata Plan means the plan or plans attached to the Disclosure Statement (described in the Disclosure Statement as Attachment 2) being Annexure to this Contract, as amended, varied or supplemented from time to time.
Strata Plan means the Proposed Strata Plan in the form in which it is registered at DLI, as amended varied or supplemented from time to time.
20 Annexure 1 to the Contract is a form 28 disclosure statement under s 69 of the Strata Titles Act. Attachment 2 to the disclosure statement is annexure 3 to the Contract. As I have said, the Proposed Strata Plan is defined to mean, in effect annexure 3, as amended, varied or supplemented from time to time.
21 The first page of annexure 3 states that:
These plans have been prepared from architectural plans and are subject to survey and amendment under clause 11 of the Additional Conditions of Sale contained in. Although, the Seller believes, at the date of contract, that these plans are accurate, the Seller makes no representation and gives no warranty that the Proposed Strata Plan, when registered, will be exactly the same as these plans.
22 The second page of annexure 3 is headed 'Notification of Easement'. It states that the buyers are aware of and accept that an easement in favour of Western Power applies to the common property area to the corner of Katharine and Clayton Streets and that this has been highlighted on the attached Proposed Strata Plan. This page was signed by the Purchaser and dated 20 April 2005. There was an issue at trial as to whether this page formed part of the Contract. The trial judge resolved that issue in favour of the Purchaser, finding that it did.8
23 The third and fourth pages of annexure 3 are each headed 'Preliminary Built Strata Plan'. The first of those pages shows the location of the various units, and shows the area of land the subject of the two Western Power Easements. The plan is or appears to be dated 20 September 2004. It shows the local government area as 'Town of Cottesloe'.
24 The version of the Preliminary Built Strata Plan submitted in the December 2004 application was a subsequent amendment to the version of that document that was annexure 3 to the Contract.9 However, apart from the correction of the statement as to the local government from 'Town of Cottesloe' to 'Shire of Swan', the two are materially indistinguishable.
Events subsequent to the Contract
25 Some time in mid to late 2005, the Purchaser received a further revised Proposed Strata Plan that excluded the Easement Land from the development.10 There was no evidence that the revised Proposed Strata Plan was submitted to the WAPC.11 That second Proposed Strata Plan reflected what the Seller was trying to achieve by the March 2005 subdivision application.12
26 By letter dated 29 May 2006 from the WAPC to JBA, the WAPC notified that it refused the March 2005 application for approval of a subdivision.13
27 By letter dated 31 July 2006 from the WAPC to JBA, the WAPC notified that it would conditionally approve the December 2004 application for approval of a strata plan and would endorse its approval once the conditions set out had been fulfilled. One of those conditions, condition 3, was 'the area containing the Western Power easements being shown on the Strata Plan as common property'.14
28 By letter of 3 August 2006 from the Seller to Mega Property Group, the Seller's agent for at least some of the units in the development, the Seller advised that 'the contract has come to an end' and that the Seller had authorised the deposit to be refunded to the Purchaser.15 However, this letter was not sent to the Purchaser.
29 By letter dated 25 November 2006 from the Seller to the Purchaser, the Seller:
(a) referred to the sale of unit 18, 132 Clayton Street, Bellevue and stated that that contract had now been terminated;
(b) enclosed copies of WAPC's letters of 31 July 2006 and 29 May 2006;
(c) asserted that the land the subject of the Western Power Easements was, by annexure 3 of the Contract, not intended to be included in the common property or the strata development generally;
(d) stated that condition 3 of the WAPC conditional approval was unacceptable to the Seller and that the Seller was not willing to comply with that condition; and
(e) stated that the Contract was terminated pursuant to condition 20.1.3.16
30 At trial, there was an issue as to whether this letter constituted an effective exercise by the Seller of any right to terminate which it possessed. The judge held that it was.17 That is not challenged on this appeal.
31 By letter of 2 January 2007 from the Purchaser to the Seller, the Purchaser asserted that the Seller's purported termination was unfounded.18
32 In May 2007, strata titles were issued for the first nine units in the development. The land the subject of the easements was shown in the strata plan as common property, with one further unit covering the remaining portion of the Original Bellevue Land.19 The first nine units developed included what had been unit 18.
33 On 10 May 2007, a certificate of title was issued for what had been unit 18, being lot 3 on Strata Plan 47136.20
34 In about May 2007 the strata by-laws were amended to give the Seller, as owner of the one large unit, the option to buy the Easement Land for $1.00.21 Subsequently, the WAPC gave its approval for the Easement Land to be joined to the one large unit, after which the Seller exercised the option.22
The reasons of the trial judge
35 The trial judge described the principal issues as being whether the Seller had a right to terminate the Contract and, if so, whether it had effectually exercised that right.23
36 His Honour summarised the Purchaser's case as follows:24
(a) the condition imposed by the WAPC in response to the December 2004 strata plan application did not engage cl 20.1.3 of the Contract because the condition was in accordance with the Proposed Strata Plan, namely the Preliminary Built Strata Plan (PBSP) in annexure 3 to the Contract; and
(b) the refusal of the March 2005 subdivision application did not engage cl 20.1.2, because the application related to a strata plan materially different from the PBSP in annexure 3 to the Contract, in that the Easement Land was excluded from the common property.
37 The reasoning of the trial judge may be summarised as follows:
(1) the reference in the definition of Proposed Strata Plan to amendments and variations applies to amendments and variations made to the version of the strata plan given to the Purchaser before the date when that version of the strata plan was provided;25
(2) clause 19 permits the Seller to make amendments to the Proposed Strata Plan, the Complex and Specifications, subject to restrictions set out in cl 19;26
(3) the area shown in the PBSP in annexure 3 that was not shown as lots was, in effect, being shown as common property;27
(4) that conclusion is reinforced by the terms of the page headed 'Notification of Easement', which page was included in the Contract;28
(5) consequently, the March 2005 application for approval of a subdivision was an application for the purposes of registration of a strata plan materially different from the PBSP in annexure 3 in that the March 2005 application contemplated the Easement Land not being part of the common property;29
(6) condition 3 of the WAPC conditional approval of the December 2004 strata plan application was in accordance with the PBSP in annexure 3;30
(7) notwithstanding those conclusions, in the events that happened cl 20.1.2 and cl 20.1.3 gave the Seller a right to terminate the Contract, for the reasons that follow;31
(8) the definition of 'Approvals' refers to approvals to carry out the Development and register the Proposed Strata Plan. The Proposed Strata Plan is defined in a way to pick up amendments and variations to the Strata Plan in annexure 3 to the Contract;32
(9) the amendment was one that was within cl 19.1, as being a change 'otherwise to procure the registration of the Strata Plan';33
(10) by the date of the second Proposed Strata Plan there was, in effect, an amended Proposed Strata Plan. If that amended Proposed Strata Plan was not in existence by the date of the March 2005 application, it was 'in view'. That means that the decision of the WAPC refusing the March 2005 application was a refusal to issue an Approval;34
(11) those findings meant that the decision of the WAPC conditionally approving, subject to condition 3, the December 2004 strata plan application engaged cl 20.1.3;35
(12) notwithstanding the subsequent dealings between the Seller and the WAPC, in the amendment of the strata by-laws, culminating in the exercise of the option, and notwithstanding the inclusion of the Easement Land in the initially registered strata plan,36 the Seller was 'unwilling in its complete discretion to comply with that condition';
(13) consequently, the Seller had a right to terminate the Contract, both under cl 20.1.2 and under cl 20.1.3.37
Ground of appeal
38 The single ground of appeal asserts, in substance, that his Honour erred in finding that it was open to the Seller to apply for approval of a strata plan other than in accordance with the PBSP in annexure 3, unless it was for the purposes of procuring the registration of the Strata Plan. By implication, the ground asserts that any amendment to the Proposed Strata Plan made by the Seller was not for the purpose of procuring the registration of the Strata Plan.
Analysis
39 I begin with the ground relied on by the Seller in terminating the Contract: that condition 3 of WAPC's approval of the December 2004 application entitled the Seller to terminate the Contract under cl 20.1.3. For the reasons that follow, I am satisfied that the Seller was not entitled to terminate the Contract on that ground.
40 The starting point is to construe the Contract. In particular, attention must be directed to the rights and interests required to be transferred under the Contract by the Seller to the Purchaser. As the trial judge found,38 by the Contract, the Purchaser agreed to acquire unit 18, together with an interest in the common property, and that common property included the Easement Land. The Easement Land was shown on the PBSP in annexure 3 to the Contract, as part of the land comprised within the plan. Common property was not defined in the Contract. Clause 29.2 of the Contract provides that unless the context requires otherwise, terms and expressions which are defined in the Strata Titles Act and used but not defined in this Contract have the same meaning in the Contract. Section 3(1) of the Strata Titles Act defines common property to mean, relevantly, so much of the land comprised in a strata plan as from time to time is not comprised in a lot shown on the plan. The Easement Land was comprised in the PBSP and not comprised in any lot shown on the plan. Thus, it was common property within the definition in s 3(1) of the Act which, by cl 29.2, applied to the Contract. Moreover, it is clear from the Notification of Easement document that the parties objectively intended that the Easement Land was part of the common property.
41 What I have said in the preceding paragraph is subject to any power, on the part of the Seller, under the Contract, to amend the Proposed Strata Plan so as to alter the common property. For reasons to be explained,39 in the circumstances of this case, the Seller did not have any power under the Contract to amend the Proposed Strata Plan so as to exclude the Easement Land from the common property.
42 In the circumstances in [40], condition 3 of the WAPC's approval of the December 2004 application did not give rise to any right on the part of the Seller to terminate the Contract. In substance, the condition did no more than to require the Seller to perform its contractual obligation to the Purchaser to include the Easement Land as common property. Moreover, condition 3 simply required the Seller to do that for which it had sought approval, namely create a strata plan in respect of which the Easement Land was part of the common property. Indeed, it could fairly be said that condition 3 had no legal consequence. Without condition 3, the Seller was obliged to include the Easement Land as part of the common property, because that was an element of the Proposed Strata Plan for which it had sought and obtained approval.
43 The Seller submits that its March 2005 application to subdivide the land so as to exclude the Easement Land had the effect, in substance, of amending or supplementing the December 2004 application. On the Seller's submission, that explains the imposition by the WAPC of condition 3.
44 I do not accept that submission. The two applications, made in December 2004 and in March 2005, were separate. Each was individually determined. In any event, even if this submission of the Seller were accepted, it would not avail the Seller unless the Seller had a power to unilaterally amend the Proposed Strata Plan so as to exclude the Easement Land from the common property. For the reasons that follow, in my opinion the Seller had no such power.
45 Clause 19.1 empowers the Seller to amend the Proposed Strata Plan 'to procure the registration of the Strata Plan'. On the plain language of cl 19.1, the power of amendment for which it provides is limited to a change for the purpose of procuring the registration of the Strata Plan. There is nothing in the rest of the terms of the Contract, or in its evident object, that would sustain any different construction of cl 19.1.
46 The Seller did not point to any evidence to the effect that the amendment of the Proposed Strata Plan was made 'to procure the registration of the Strata Plan'. The fact that Strata Plan 47136 was registered, showing the Easement Land as part of the common property, points to the contrary conclusion. To the extent that the trial judge found that the amendment was to procure the registration of the Strata Plan, in my respectful opinion, he erred.
47 In submissions on the appeal, the Seller appeared to accept that the amendment to the Proposed Strata Plan was not made 'to procure the registration of the Strata Plan'. Rather, the Seller submits that under the Contract it has a wider power of amendment, unconstrained by any requirement that the purpose of the amendment be to procure the registration of the Strata Plan.40
48 The Seller points to the definition of Proposed Strata Plan which refers to the plan in annexure 3, 'as amended, varied or supplemented from time to time'. That definition does not assist the Seller. The definition is not to be read as itself conferring a power of amendment. Rather, it refers to the plan when amended (etc) in accordance with power(s) of amendment found elsewhere in the contract. Definitions do not in themselves have operative effect. Rather, they are to be inserted in the operative provisions in which the defined term is used, and those operative provisions construed accordingly.41 In my view, on a proper construction, the definition of Proposed Strata Plan is to be read as referring to the Strata Plan annexed to the Contract, as amended, varied or supplemented from time to time in accordance with the provisions of the Contract.
49 The Seller also relies on cl 19.2 of the Contract. That clause empowers the Seller to modify and reconfigure the Complex. Amending the common property is not within the ambit of that power. The Complex is defined in cl 29.1 of the Contract to mean 'the residential unit complex to be erected'. It is plain from that language that the Complex refers to the built form, and so does not include the Easement Land as part of the common property shown on the Proposed Strata Plan.
50 Finally, the Seller points to cl 11.1.3 which, it submits, confers or at least contemplates amendments to the common property. Clause 11.1.3 does not confer a free-standing power on the Seller to amend the Proposed Strata Plan. The subject-matter of cl 11.1.3 is entirely distinct from an amendment by the Seller of the Proposed Strata Plan to exclude the Easement Land from the common property. Clause 11.1.3 relates to the unit entitlement attached to the Property and to the other lots on the Strata Plan. To the extent that that unit entitlement is varied as shown on or annexed to the Strata Plan as registered, such variation is accommodated in the Property as sold. In this case, cl 11.1.3 was not engaged. There was no amendment that affected the unit entitlement.
51 For these reasons, in my opinion:
(1) the Seller had no power to amend the Proposed Strata Plan in the Contract so as to exclude the Easement Land as common property; and
(2) condition 3 of the WAPC's approval of the December 2004 strata title application did not give the Seller any right to terminate the Contract.
52 That brings me to whether the WAPC's refusal of the Seller's March 2005 subdivision application gave the Seller a right to terminate the Contract. Although referred to in the Seller's letter of termination, that refusal was not relied on in the letter of termination as a ground of termination. That in itself does not preclude the Seller from relying on the ground of termination, if it had been available.42
53 Clause 20.1.2 empowers the Seller to terminate if any relevant authority refused to issue an Approval. An 'Approval' is defined to mean an approval of any description whatsoever required by the Seller, in the Seller's complete discretion, to carry out the Development and register the Proposed Strata Plan in accordance with the Act. The 'Development' is defined by reference to the construction of the Complex in accordance with the Proposed Strata Plan.
54 The upshot of these provisions is that 'Approvals' cover only approvals required to carry out development in accordance with the Proposed Strata Plan and to register the Proposed Strata Plan. The Proposed Strata Plan showed the Easement Land as part of the common property. Unless the Seller had power to amend the Proposed Strata Plan so as to exclude the Easement Land as common property, approval of an application to alter the land to be the subject of the strata lots by excising the Easement Land, was not an 'Approval'. For the reasons I have given, in my view, the Seller had no such power.
55 For these reasons, the refusal by the WAPC of the March 2005 subdivision application did not give the Seller any right to terminate under cl 20.1.2 of the Contract.
Relief
56 At trial, the Seller raised three grounds on which it said that specific performance should be declined. The trial judge rejected two of those grounds, and that rejection is not challenged. Consequently, nothing more needs to be said about those grounds.
57 The third ground advanced by the Seller at trial was that the need for the Seller to unwind its exercise of the option to acquire the Easement Land could impose hardship on owners of other lots in the strata development. The trial judge accepted that there was some room for such a conclusion but, because he considered the issue of hardship to other owners had not been raised in pleadings at the trial, he would have given the Purchaser an opportunity to reopen his case to lead further evidence on the question.
58 On appeal, the Purchaser has made clear that he does not insist that the Easement Land be part of the common property in which he will obtain an interest.43 There was evidence before the trial judge, evidently accepted by his Honour, that the removal of the Easement Land from the common property did not affect the value of a unit.44 Moreover, the Seller's inability to transfer an interest in common property that includes the Easement Land came about by its own breach of contract in failing to use its best endeavours to have the Proposed Strata Plan registered, as required by cl 3.5 of the Contract. In those circumstances, there should be an order for specific performance of the Contract by the transfer of lot 3 on Strata Plan 47136, together with an interest in the common property without the Easement Land.
Conclusion
59 For these reasons, the appeal should be upheld, and an order for specific performance granted. The precise terms of the order should be settled after further submissions from the parties.
1 Unless otherwise stated, references to paragraph numbers are to paragraphs of the trial judge's reasons for decision.
2 [6].
3 [15]; exhibit 24.
4 [16].
5 [19].
6 Clause 9.
7 [25].
8 [96] - [97].
9 [66].
10 [27].
11 [28].
12 [67].
13 [29].
14 [31]; exhibit 32.
15 [32].
16 [34].
17 [125].
18 [35].
19 [36].
20 [37].
21 [36].
22 [39].
23 [43].
24 [59].
25 [68] - [75].
26 [76] - [77].
27 [85] - [92].
28 [93] - [97].
29 [100].
30 [102].
31 [104].
32 [105].
33 [107].
34 [110].
35 [111].
36 [111].
37 [112].
38 [85] - [97].
39 See [45] - [50].
40 appeal ts 44 - 48.
41 See Kidd v State of Western Australia[2014] WASC 99 [131] and the cases there cited.
42 See, by analogy, Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 377 - 378; Foran v Wight (1989) 168 CLR 385, 406, 424, 429.
43 appeal ts 30 - 32, 72.
44 See [108] - [109].
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4
0