Cheshire v Jennings - [2019] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHESHIRE & ANOR v JENNINGS & ANOR
[2019] SADC 79
Judgment of His Honour Judge O'Sullivan
20 June 2019
CONTRACTS - PARTICULAR PARTIES - VENDOR AND PURCHASER - DISCLOSURE OF MATERIAL FACTS
CONVEYANCING - BREACH OF CONTRACT FOR SALE AND REMEDIES - PURCHASER'S REMEDIES - BREACH OF VENDOR'S STATUTORY DISCLOSURE OBLIGATION OR STATUTORY WARRANTY
The first plaintiff attended an auction for a residential property at which she bid. The bid was not accepted and the property was held over. Later that same day, the plaintiffs entered into a contract for the purchase of the property. A Form 1 was provided prior to execution of the contract. The Form 1 was defective and the plaintiff sought relief pursuant to s 15 of the Land and Business (Sale and Conveyancing) Act 1994.
Held:
1. The contract was entered into under auction conditions such that the plaintiffs had no right to cool-off.
2. The plaintiffs have not satisfied the Court that they have been prejudiced by the failure to comply with Part 2 of the Land and Business (Sale and Conveyancing) Act 1994.
3. Claim dismissed.
Land and Business (Sale and Conveyancing) Act 1994 ss 5, 7, 11, 15, 24I, 24J; Land Agents, Brokers and Valuers Act 1973 s 91G; Acts Interpretation Act 1915 s 22; Environment Protection Act 1993 s 5B, referred to.
Myles Pearce and Co Pty Ltd v Leuci and Martin (1997) 193 LSJS 491; Astill & Anor v South Esplanade Developments Pty Ltd [2007] SASC 231; Highfield Property Investments Pty Ltd v Commercial and Residential Developments (SA) Pty Ltd [2012] SASC 165; Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226; Catalano v Zollo [2006] SADC 111; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; South Australia v Lampard-Trevorrow (2010) 106 SASR 331, considered.

CHESHIRE & ANOR v JENNINGS & ANOR
[2019] SADC 79
Introduction

On 17 November 2018, an auction of the residential property situated at 15 Wyatt Road, Direk, South Australia (‘the Property’) was held. The auction was conducted at the Property however the Property did not sell and was ‘held over’. Later that day, at about 3.30pm, the first plaintiff, Ms Cheshire, who had been present at the auction, and her husband, the second plaintiff, who had not been present at the auction, entered into a contract with the defendants for the sale and purchase of the Property (‘the Contract’). At or about the time the plaintiffs executed the Contract, Ms Cheshire was provided with the Vendor’s Statement, or Form 1, pursuant to the Land and Business (Sale and Conveyancing) Act 1994 (‘the Act’) by Ms Tanya Roberts (‘Ms Roberts’), the Real Estate Agent retained by the defendants. Ms Cheshire signed the Form 1 on 17 November 2018 and the plaintiffs paid the deposit of $65,000 that day.
Settlement was to occur on 11 January 2019, however on 9 January 2019 the plaintiffs asserted that an environmental assessment had been conducted at the Property but had not been disclosed in the Form 1. On that basis, the plaintiffs refused to settle on 11 January 2019.
The defendants issued a Notice to Complete dated 17 January 2019 requiring the plaintiffs to settle by 31 January 2019. The plaintiffs did not settle. Ultimately the defendant terminated the Contract on 1 February 2019 and retained the deposit.
When the plaintiffs opened their case at trial, their counsel, Mr Ross-Smith, announced that the plaintiffs cooled-off on the Contract.
The plaintiffs seek:
1A declaration that the Form 1 dated 17 November 2018 is non-compliant;
2A declaration that the Notice to Complete and Notice of Termination are invalid;
3A declaration that the purported termination of the Contract by the defendants was unlawful; and
4An order that the defendants repay the deposit of $65,000 to the plaintiffs.
Issues
The following issues arise in this matter:
1Was the Contract entered into between the parties on 17 November 2018 subject to auction conditions or by private treaty?
2Was the Form 1 provided to the purchasers on 17 November 2018 defective, and if so, how?
3Have the plaintiffs cooled-off?
4Are the plaintiffs entitled to relief under s 15 of the Act?
5If so, in the exercise of the Court’s discretion, to what relief (if any) are the plaintiffs entitled?
6Depending on the answer to issues 4 and 5 above, was the termination of the Contract by the defendants unlawful?
Procedural History
This matter proceeded in the Fast Track stream. Ms Cheshire and her daughter, Donna Marie Richards (Ms Richards), had filed affidavits in lieu of pleadings. At a directions hearing held on 4 April 2019, his Honour Judge Slattery ordered the matter proceed on pleadings and that the plaintiffs’ affidavits filed in lieu of pleadings be received as those witnesses’ evidence in chief with liberty to the plaintiffs to adduce further oral evidence.
Witnesses
The affidavits filed by Ms Cheshire and Ms Richards, initially in lieu of pleadings, stood as their evidence in chief. Mr Cheshire, the second plaintiff, did not give evidence and played no role in the trial. Indeed, other than by signing the Contract, it seems he played no role in the facts of this matter.
Apart from Ms Cheshire and Ms Richards, the plaintiffs called two further witnesses: the resident of number 17 Wyatt Road, Direk, Mr Peter Shane How, and Ms Bronwyn Lesley White, an environmental consultant with the firm JBS&G Australia Pty Ltd.
The defendants called six witnesses: the first defendant, Mr Jason Jennings, the second defendant, Ms Helen Jennings, the auctioneer - Mr Brett Stephen Roenfeldt, the auctioneer’s clerk - Ms Deborah May, Ms Roberts, and Mr Tom Manolakis, the proprietor of Aaron Conveyancing Pty Ltd (‘Aaron Conveyancing’) the conveyancing firm retained by the defendants.
I formed the view that each of the witnesses called in this matter were genuinely trying to assist the Court. In the case of the plaintiffs’ witnesses, Ms Cheshire and Ms Richards gave evidence from a position of concern at the environmental investigation work that was being done by the Department of Defence in the general area surrounding the Property. Consequently, the evidence of Ms Richards in particular was, understandably, somewhat dogmatic in relation to some issues.
In the case of the defendants’ witnesses, Mr and Ms Jennings were clearly anxious to convey that they had no knowledge whatsoever of the environmental assessment work being done by the Department of Defence in the general area. Accordingly, their evidence was given against that background and tended to be defensive.
Generally, when taken as a whole, I do not prefer the evidence of one witness over another however, where necessary to prefer one witness’ version of events over that of another, I make that clear.
Facts
The plaintiffs are husband and wife and the parents of Ms Richards. Ms Richards has three children aged eight, seven and one year. Until May 2018 Ms Richards lived with her husband in Port Hedland, Western Australia. In May 2018, she moved to Adelaide with the three children and lived in a property owned by the plaintiffs at Para Hills. That property was too small to accommodate Ms Richards and her children so after speaking with Ms Cheshire, Ms Richards commenced a search for a new property for the plaintiffs to purchase for the purpose of Ms Richards and the children to live in.
Ms Richards’ searches found the Property, which is owned by the defendants.
The defendants are husband and wife and, together with their four children, have lived at the Property since 2010. The Property is substantial, occupying 1.5 acres (approximately 6500m²). The house has seven bedrooms, three bathrooms, two kitchens, two dining rooms, and two lounges.
There are six sheds of various sizes located on the Property, two of which are used as garages and which together are capable of garaging a total of five cars. There are approximately 30 fruit trees and the area is fenced off at the back for sheep and goats. The Property is connected to the mains water system and does not have a bore. Rainwater of approximately 27,000L is collected.
The distance from the back fence of the Property to RAAF Edinburgh is approximately one kilometre.
The defendants first considered selling the Property in 2017. In 2018 they approached Ms Roberts, who was managing an investment property for them, in relation to the sale of the Property. In consultation with Ms Roberts, the defendants decided on a strategy of a number of open inspections, followed by an auction.
Ms Roberts was present at the open inspections for the Property and keeps an open inspection record in which she records the names of the persons attending, together with other details and any comments that she considers appropriate or relevant. By reference to Ms Roberts’ open inspection records, Ms Richards attended an open inspection for the Property on 24 October 2018 by herself, on 27 October 2018 in company with her husband, Tom and her mother, and on 4 November 2018 by herself,[1] and I so find.
[1] Exhibit D4, tab 11.
Following the open inspection on 4 November 2018, the plaintiffs made an offer to purchase the Property before auction for $585,000. The defendants rejected that offer.
The Auction
The property was listed for auction on 17 November 2018 at 1.00pm. Although there are differing recollections as to who was present on the part of the plaintiffs, the evidence of Ms Cheshire, Ms Richards, Ms May and

Ms Roberts, was that the three adults present other than those connected in some way with the auction on behalf of the defendants, were Ms Cheshire, Ms Richards and her husband, Tom. The auctioneer, Mr Brett Roenfeldt, said there was only one party present. I find that Ms Cheshire attended the auction along with Ms Richards and her husband, and that they were the only potential bidders at the auction.
Mr Roenfeldt gave evidence. He has been an auctioneer for 40 years and has conducted over 20,000 auctions. It is his practice to use the same script each time he conducts an auction and he makes notes specific to the property in question on that script. His script for this auction and the notes he made in preparation for, and during, the auction were tendered by the defendants.[2]
[2] Exhibit D4, tab 8.
Mr Roenfeldt said that he follows his notes and uses a set formula when he conducts an auction. He commences by taking those present through the mandatory prescribed conditions of sale that apply to the auction of a residential property in South Australia. He refers to the fact that if a bid is accepted there will be a binding contract.
Mr Roenfeldt arrived at the property approximately 45-60 minutes prior to the auction. He met with Ms Roberts and the defendants. After discussing the matter, it was agreed the defendants’ reserve was $700,000 and Mr Roenfeldt would open the auction with a vendor’s bid at $650,000. He explained to the Court that a vendor’s bid was the auctioneer placing a bid on behalf of the vendors.
Ms Cheshire gave evidence that when Ms Cheshire, Ms Richards and her husband attended at the auction, Ms Cheshire filled in a Bidder Registration Form.[3] As part of that process, she was assigned what is described in the Bidder Registration Form as a ‘Bidder’s Unique Identifier’ which in this case was number 18. As I understand the position, each potential bidder is given a paddle with their Bidder’s Unique Identifier number on it. In accordance with ss 24I and 24J(1)(f) of the Act, Ms Cheshire was also given a Bidder’s Guide which is a Form R4.
[3] Exhibit D4, tab 2.
Under s 24I(2) of the Act, the standard conditions of auction will be binding as between vendor and purchaser, vendor and auctioneer, and the bidders and the auctioneer. There is no suggestion that the standard conditions of auction were not available for perusal by members of the public for at least 30 minutes before the auction was due to commence as required by s 24J(1)(a) of the Act. I deal with the question of whether the Form 1 was defective below but other than that issue, there is no suggestion that the auction was conducted other than in accordance with the Act and I find accordingly.
Mr Roenfeldt described what happened at the auction. After opening the auction and going through the conditions of the auction, he called for an opening bid of $650,000. No bid being received, he made a vendor’s bid of $650,000. He called the vendor’s bid three times. He said that somewhere between the first and third call on the vendor’s bid, he was asked by a female person, whom can only have been Ms Cheshire in view of what occurred next, whether he was able to accept anything less than $650,000. Mr Roenfeldt responded in words to the effect that if she was able to make a bid of $650,000, he would withdraw the vendor’s bid. He then said words to the effect that he was going to withdraw his vendor’s bid of $650,000.
Having withdrawn the vendor’s bid, he said to Ms Cheshire in words to the effect that she needed to acknowledge her bid by moving her paddle upwards. He said that Ms Cheshire raised her paddle and announced her bid as $650,000. He proceeded to call that bid three times. At the end of the third call he paused the auction to refer the bid to the defendants.
Mr Roenfeldt said that he went to speak to the defendants who were firm on their view as to the reserve price of $700,000. He then returned outside, reconfirmed Ms Cheshire’s bid again at $650,000, called it three times and then announced that the auction would be ‘held over’ for further negotiation with the defendants.
When asked to explain to the Court what ‘held over’ meant, Mr Roenfeldt said that it meant that the auction was still on foot until midnight that day. He compared it with the expression ‘passing in’ which means that the auction is concluded. He explained that the terms ‘holding over’ and ‘passing in’ were not legislated but customary in the industry.
Ms Deborah May who fulfilled the role of auctioneer’s clerk at the auction, is a real estate agent with some 10 years’ experience. She attended the auction in support of Ms Roberts and was present during the auction. She confirmed that Mr Roenfeldt went through the terms and conditions of the auction before placing a vendor’s bid. She heard Ms Cheshire bid $650,000 and the auctioneer asking her to raise her paddle to bid. She then observed Ms Cheshire raise her paddle and bid.
Ms Roberts was also present at the auction. She said she was two to two and a half metres away from Ms Cheshire, Ms Richards and her husband, and had a very clear view of them. She said the auctioneer started with the vendor’s bid at $650,000, at which time Ms Cheshire said words to the effect of ‘$650,000 is my limit’. The auctioneer asked her to raise her paddle and bid $650,000 and she did so.
In her evidence, Ms Cheshire confirmed that the auctioneer explained how the auction would work and that if a contract was executed before midnight there was no cooling-off period. She also confirmed that the auctioneer made a vendor’s bid of $650,000 at which time she said to the auctioneer words to the effect that $650,000 was her top bid. She recalls that the auctioneer asked her to raise her paddle if she wanted to bid the amount of $650,000. She said she understood that by raising her paddle she was bidding that amount of money, and she raised her paddle accordingly.
Ms Cheshire then said the auctioneer paused the auction to go and speak with the vendors. The auctioneer returned, together with the land agent, advising that the offer had been rejected. Ms Cheshire does not remember the auctioneer saying the words that the property had been ‘held over’ although he may have said those words. She left the property once the auction was over.
Ms Cheshire confirmed in cross-examination that she raised her paddle and said words to the effect that she agreed with $650,000. She did not make another bid.[4] In so doing she agreed that paragraph 26 of her affidavit, Exhibit D3 and D3A, where she deposes she did not make a bid, was “wrong”.[5]
[4] T92.4 – 12.
[5] T92.33 – 38.
Exhibit D4, tab 4 is the auction record that is completed by the auctioneer’s clerk, Ms May, on the day of the auction. It records amongst other things, the vendor’s reserve of $700,000 and that the result of the auction was that the Property was held over for $650,000. It also sets out the negotiating parties’ details as Ms Cheshire’s and that the amount that was offered was $650,000. Page two of the auction record records a bid in the amount of $650,000 on the part of the bidder with the Bidder’s Unique Identifier number 18. That auction record has been signed by Mr Roenfeldt.
There is no record of a vendor’s bid being made in the auction record however Mr Roenfeldt’s hand-written notes on his script record a vendor’s bid of $650,000. Mr Roenfeldt explained that by him withdrawing the vendor’s bid, it no longer existed and so need not be recorded. I need not decide whether that is correct or not but as I have noted, the auction record records a bid on the part of bidder number 18, that is, Ms Cheshire, in the sum of $650,000. I am satisfied that the auction record is accurate insofar as it records a bid from Ms Cheshire in the sum of $650,000.
Auction Findings
Having considered all the evidence in relation to the auction, I find as follows.
The auction was held on 17 November 2018 at 1pm. The only potential bidder to attend the auction was Ms Cheshire who was accompanied by Ms Richards and her husband, Tom. Upon arrival at the Property, Ms Cheshire filled out a Bidder Registration Form and was assigned the Bidder’s Unique Identifier number 18.
After referring to the terms of the auction and explaining that if a bid was accepted there would be no cooling-off period, the auctioneer called for an opening bid of $650,000. In the absence of an opening bid the auctioneer made a vendor’s bid in the sum of $650,000. Ms Cheshire then said words to the effect that $650,000 was her top bid. The auctioneer withdrew the vendor’s bid and invited Ms Cheshire to raise her paddle should she wish to bid $650,000 at which time she did so and said words to the effect that she bid $650,000.
After Ms Cheshire made her bid, the auctioneer paused the auction and consulted with the defendants before returning and advising Ms Cheshire and others present that the property had been held over.
The Contract is signed later on 17 November 2018
There is no dispute between the parties that later that day Ms Cheshire was contacted by Ms Roberts and informed that the vendors accepted her bid at $650,000. Ms Roberts attended at Ms Cheshire’s house at Highbury at approximately 3.30pm at which time she was presented with a property purchase contract and the Form 1. I find that Ms Cheshire signed both the Contract and the Form 1 that day. Mr Cheshire’s signature also appears on the Contract. There is no issue that he signed the Contract on 17 November 2018.
Was the contract entered into between the parties on 17 November 2018 subject to auction conditions or by private treaty
Although there is said to be a difference in the real estate industry between ‘holding over’ and ‘passing in’, I do not need to decide that question for the following reasons:
1The terms and conditions of the auction[6] record at clause 12 under the heading ‘Holding over the auction’ the following: ‘The Auctioneer may hold over the Property and re-offer it for auction at another time on the same day on terms and conditions as the Vendor may nominate.’
2Section 5 of the Act provides that the cooling-off period does not apply in circumstances where the sale is by auction[7] or where the land is offered for sale, but not sold, by auction and a person by whom, or on whose behalf, a bid for the land or business was made at the auction enters into the contract on the same day as the auction.[8]
3The Bidder’s Guide, which was signed by Ms Cheshire when she attended at the auction records her acknowledgement of receipt of Form R4. Form R4 sets out, amongst other things, prescribed standard conditions for auction of residential property. It records at (m) that:
(m) the cooling-off rights under section 5 of the Land and Business (Sale and Conveyancing) Act 1994 do not apply to a sale by auction or a sale on the day of auction to a person who has made a bid in the auction (whether in person or by their proxy or representative).
[6] Exhibit P8.
[7] Land and Business (Sale and Conveyancing) Act 1994 s 5(7)(c).
[8] Ibid s 5(7)(d).

I have already found that the parties entered into the Contract on 17 November 2018, and that Ms Cheshire made a bid at the auction.
I find that the parties entered into the Contract under auction conditions.
Was the Form 1 provided to the purchasers on 17 November 2018 defective and if so, how?
There is no dispute in this matter that the conveyancer engaged by the defendants, Aaron Conveyancing, prepared the Form 1. The proprietor of Aaron Conveyancing, Mr Tom Manolakis, gave evidence that he was not involved with the preparation of the Form 1 in question and Ms Janine Anderson,[9] a Settlements Officer employed by Aaron Conveyancing, prepared the Form 1. He gave evidence that Ms Anderson was absent on holidays and unavailable to give evidence.
[9] T237.34-238.3.
Mr Manolakis has full access to the books and records of the firm and reviewed the records of his firm with respect to the conveyancing work for 15 Wyatt Road, Direk.[10] He said that the firm had been engaged by the defendants and carried out the required searches, prepared the Form 1 and emailed it together with the searches to the Agent (Ms Roberts).[11]
[10] T237.7-20.
[11] T237.11-16.
Ms Roberts gave evidence that her usual practice was to have the conveyancer prepare the Form 1 and that she looked over it once it had been sent to her.
A ‘Property Interest Report’[12] is a document which is prepared by Land Services SA on behalf of the South Australian Government. The document states that it provides information that may be used to complete a Form 1.
[12] Exhibit P2, tab 14.
The Property Interest Report for the Property was in the firm’s file.[13]
[13] T241.25-28.
There is an issue as to whether, on 17 November 2018, Ms Cheshire was provided with the complete Form 1, or the Form 1 without the Property Interest Report and Annexure A, at the time or shortly before she signed the Contract.
Mr Manolakis was shown Exhibit P2, tab 17 which is a document titled ‘Annexure A’. He identified the document as a document his firm annexes to the Form 1 to give information about statutory easements to the prospective buyer[14] in case the agent does not give them a copy of the Property Interest Report. Statutory easements are dealt with in the Property Interest Report however in Mr Manolakis’ experience, it is not unusual for agents not to provide the Property Interest Report with the Form 1 to purchasers.
[14] T238.17-239.2.
Under cross-examination, Mr Manolakis confirmed that Annexure A, Form 3 and Form R7 are attached to each Form 1 the firm prepares as a matter of practice. He could not say whether Annexure A was sent with the Form 1 or not in this case.
Annexure A – Statutory Easements
Under cross-examination, Ms Cheshire was shown the Form 1 in Exhibit P2, tab 14. She identified her signature as that which appears on page 17 of 17 on the Form 1. Listed on that page 17 is ‘Annexure A-Statutory Easements’. The Form 1 in Exhibit P2, tab 14 includes what are referred to as the annexures. Those annexures include Annexure A as well as the Property Interest Report.
Ms Cheshire also confirmed in cross-examination that she read the questions and answers at the front of the Form 1 but did not read all of it. When asked whether there were annexures with the document at the time she signed it, she responded in the following terms:[15]
[15] T60.16-61.17 and T61.33-37.
QYou’re not able to tell his Honour whether there was an Annexure A with this document as at the date that you signed it, are you.
AAll the documents that I received on the day the agent gave me was all in my file and that was not in there.
QYou're not quite answering my question. I will put it again. You're not able to tell his Honour that you remember seeing an Annexure A when you signed the document.
AYes, it was not there.
QI suggest to you that you didn’t look, so you don’t know whether it was there or not.
ANo. The papers I got, they were all in my file when we went to the auction. There was a Form 1 and that’s it.
QYou understand I’m asking about an annexure that is part of the annexures to the Form 1, do you.
AAnnexure with an ‘A’ on it, which I have now seen today.
QAnd you don’t have a memory of seeing or not seeing that annexure at the date when you signed this document, November 2018, do you.
AYes, I do. It was not there.
QYou’re guessing about that, aren’t you –
ANo.
Q– because the reality is you’re saying it’s not there because it was part of the papers you got from your conveyancer. That’s correct, isn’t it.
AWell, I didn’t get the form A. I only got one document and that I kept in my file.
HIS HONOUR
QIs this fair: that you have no independent memory or whether you saw an Annexure A or not but you know you haven’t got one in your file.
AI did not see a loose piece of paper unless it was stapled to my –
QJust let me finish. Is this fair: you have no memory as to whether or not you saw Annexure A but you don’t have one in your file.
AI cannot honestly remember seeing one and it is not in my file.
…
XXN Mr Douglas
QIt is the case that you’re not able to say that, from your memory, Annexure A wasn’t there and you just don’t remember it.
AI don’t remember an A Form being there and I do not have it, so I can’t – I can’t remember seeing it.
Ms Cheshire says in that passage of cross-examination that all the documents she received from the Land Agent on the day she signed the Contract were all in her file.[16] Later, she said that ‘the papers I got, they were all in my file when we went to the auction. There was a Form 1 and that’s it’.[17] Although there is an apparent inconsistency between those two answers in terms of timing, Ms Cheshire was consistent in her evidence that she put all the papers in her file and the document described as Annexure A was not there.
Property Interest Report
[16] T60.16-21.
[17] T60.29-30.
Exhibit P3 is Ms Cheshire’s affidavit sworn 28 February 2019, filed in lieu of the plaintiffs’ pleadings. The document was received into evidence subject to redactions which were marked up on Exhibit P3A which is an unsworn, redacted version of Ms Cheshire’s affidavit. During cross-examination, Ms Cheshire was referred to Exhibit P3, in which she deposes at paragraph 37.1 that there was no Property Interest Report attached to the Form 1. Ms Cheshire confirmed that statement in her oral evidence. Paragraph 37.1 of Exhibit P3 has been redacted from Exhibit P3A. In the circumstances, I consider paragraph 37.1 of Exhibit P3 as having been received into evidence through cross-examination.
Ms Cheshire was then taken to the Form 1 at Exhibit P2, tab 14 and the document behind the Form 1 titled ‘Property Interest Report’. It was suggested to her that notwithstanding what she said at paragraph 37.1 of her affidavit, Exhibit P3, that in fact the Property Interest Report was included with the Form 1 on the day she signed the Contract. The exchange is as follows:[18]
QSo you said at para.37.1 of your affidavit that that wasn’t included with the Form 1 but it’s clearly included with the Form 1, isn’t it.
AYeah. I can see it now but it wasn’t when I signed the other Form 1.
QYou were prepared to guess about that when you signed your affidavit, weren’t you.
ANo.
QI suggest that you were prepared to do that because you were looking for any basis on which you could set aside the contract. That is so, isn’t it.
ANo, I’ve not seen the documents before.
[18] T99.10-21.
Ms Cheshire’s evidence is that she did not look at the Form 1 at the open inspection she attended nor at any date prior to the auction. She said she saw it on the day of the auction[19] and read it on the day of the auction.[20] She continued in her evidence by confirming that she read the document before she signed it.[21] She later clarified that evidence[22] by saying that she read the document at the auction and signed the document at 6 p.m. that night. There is a difference between Ms Roberts and Ms Cheshire as to the time Ms Cheshire signed the Form 1, but nothing turns on that.
Form 1 findings
[19] T57.21-23.
[20] T57.24-25.
[21] T57.36-58.2.
[22] T58.15-18.
Ms Cheshire was adamant that she had not seen Annexure A to the Form 1 nor the Property Interest Report attached to the Form 1.
It is readily apparent that the rationale behind her position was that she had kept all the documents in a file and the Annexure A and the Property Interest Report were not part of the documents she had on file.
No witness called by the defendant said that the complete Form 1 had been provided to Ms Cheshire. Ms Roberts’ evidence was that her usual practice is to have someone else prepare the Form 1. In this case, the conveyancer prepared the Form 1 and Ms Roberts said she looked over it. Mr Manolakis’ evidence is that it is not unusual for agents not to provide the Property Interest Report with the Form 1 to the purchasers.
I find that Aaron Conveyancing prepared the Form 1 and sent it to Ms Roberts who looked over it. I am not in a position to find whether the Form 1 had Attachment A or the Property Interest Report attached to it when sent to Ms Roberts.[23] However, I accept Ms Cheshire’s evidence and find that the Form 1 with which she was provided on 17 November 2018 at or about the time she signed the Contract, included neither Annexure A nor the Property Interest Report and was therefore defective.
[23] As I have noted, Ms Anderson was on leave and did not give evidence. In making this finding I do not make an adverse finding against Aaron Conveyancing or Ms Anderson.
Have the plaintiffs cooled-off?
I have found that the Form 1 provided to Ms Cheshire on 17 November 2018 was defective. The question arises of whether that defective Form 1 impacts on the Auction such that it no longer satisfies the conditions required for there to be an auction.
Section 11(1)(a)(i) of the Act provides that if an agent is acting on behalf of the Vendor in the sale of land or business by auction the agent must ensure:
(i)the vendor's statement is available for perusal by members of the public—
(A) at the office of the agent or auctioneer for at least 3 consecutive business days immediately preceding the auction; and
(B) at the place at which the auction is to be conducted for at least 30 minutes immediately before the auction commences …
There is no evidence the Form 1 was not made available as required by s 11 of the Act. There is also no evidence as to the contents of the Form 1 prior to the auction. I proceed on the basis that the Form 1 was available pre-auction as required by s 11(1) of the Act but that it was in its defective state.
In my view, that does not render the Auction invalid but may give rise to relief under s 15 of the Act.
Since Ms Cheshire made a bid at the auction and entered into the Contract on the same day as the auction, the transaction comes within the meaning of section 5(7)(c) and/or (d) of the Act such that the plaintiffs had no right to cool-off.
As I have noted previously, during the course of his opening at the trial, Mr Ross-Smith of Counsel for the plaintiffs, announced that the plaintiffs formally cooled-off on the Contract.[24] In view of my finding that the parties entered into the Contract under auction conditions, that announcement is of no effect.
[24] see opening at T41.29-34.
Are the plaintiffs entitled to relief under the provisions of s 15 of the Act?
My finding that Ms Cheshire received a defective Form 1 gives rise to this fourth issue.
Section 15 Remedies
Section 15 of the Act provides an alternative remedy to cooling-off by a purchaser and provides as follows:
15—Remedies
(1) Where a vendor's statement is not given or certified as required by this Part, or the statement given is defective, the purchaser may apply to a court of competent jurisdiction for an order under this section.
(2) On the hearing of an application under subsection (1) the Court may, if satisfied that the purchaser has been prejudiced by the failure to comply with this Part, exercise any one or more of the following powers:
(a) avoid the contract and make such other orders as the Court thinks necessary or desirable to restore the parties to the contract to their respective positions before entering into the contract;
(b) award such damages as may, in the opinion of the Court, be necessary to compensate loss arising from the non-compliance;
(c) make such other orders as may be just in the circumstances.
(3) Damages may be awarded under subsection (2)(b) against—
(a) the vendor;
(b) if it appears that the purchaser has been prejudiced by a failure on the part of an agent to carry out duties imposed by this Part—the agent, or both.
Section 15(1) of the Act refers to the vendor’s statement as being ‘defective’. The Act does not define ‘defective’ and I apply its ordinary grammatical meaning as something ‘having a defect or defects; wanting some essential part or proper quality; faulty, imperfect, incomplete’.[25]
[25] The Oxford English Dictionary, Second Edition, Volume IV, 1991, 374. See also Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226, 237 and Catalano v Zollo [2006] SADC 111 per Tilmouth DCJ.
In order for a purchaser to avail themselves of the remedies in s 15(2) of the Act, the purchaser must satisfy the court that he or she has been prejudiced by the failure to comply with the Part 2 of the Act (Part 2 being ‘this Part’ in ss15(1), (2) and (3)).
Two alleged defects in the Form 1
Section (7)(1) of the Act provides, in part, that a vendor of land must, at least 10 clear days before the date of settlement, serve, or cause to be served, on the purchaser a statement in the form required by regulation (signed by the vendor) setting out the matters required by that sub-section. A consideration of Exhibit P2, tab 14, demonstrates clearly that the defendants have signed the Form 1. There is no issue that Ms Cheshire received the Form 1 signed by the defendants on 17 November 2018.
Section 10 of the Act provides that a vendor’s statement (Form 1) must be accurate as at the date of service on the purchaser. If, after service of a vendor’s statement but before the purchaser signs a contract circumstances change, then the vendor’s statement is regarded as defective until a notice of amendment is served.
Regulations 8 and 9 of the Regulations to the Act set out the requirements for a Form 1. The Form 1 itself is found in Schedule 1 of the Regulations. When compared with the document at Exhibit P2, tab 14, it is clear that pages 1-17 contain sections consistent with that required to be in the Form 1. There are a number of parts of the Form 1 set out in Schedule 1 of the Regulations which are not included in the Form 1 provided to Ms Cheshire, specifically Schedule 1 sections 2, 3, numerous parts of section 4, sections 6-18 inclusive, and sections 21-33 inclusive. Those omitted sections are dealt with in the Property Interest Report which I have found was not provided with the Form 1 given to Ms Cheshire.[26]
[26] Exhibit P2, tab 14.
The plaintiffs allege two specific defects in the Form 1. The first is that although the Form 1 referred on page 17 to Annexure A, there was no Annexure A provided. As I have noted, Annexure A concerned statutory easements. Apart from Annexure A, statutory easements are also dealt with in the Property Interest Report. Save for the statutory easement, no further prejudice is asserted by the plaintiffs arising from the non-provision of the Property Interest Report.
The second is that in the section of the Form 1 titled ‘Particulars relating to environment protection’, a box was ticked indicating that that Section applied. In item 2(5) of that part in answer to the question:
‘(5) is the vendor aware of an environmental assessment of the land or part of the land ever having been carried out or commenced (whether or not completed)?’
The answer was ‘NO’.
The plaintiffs contend otherwise.
The proper construction of s 15 of the Act
Prior to dealing with the two alleged defects, a preliminary question is the proper construction of s 15 of the Act.
Section 15(2) of the Act provides: -
(2)On the hearing of an application under subsection (1) the Court may, if satisfied that the purchaser has been prejudiced by the failure to comply with this Part, exercise any one or more of the following powers:
(a)     avoid the contract and make such other orders as the Court thinks necessary or desirable to restore the parties to the contract to their respective positions before entering into the contract;
(b)     award such damages as may, in the opinion of the Court, be necessary to compensate loss arising from the non-compliance;
(c)     make such other orders as may be just in the circumstances.
Section 15(2) requires the court to be satisfied that the purchaser has been prejudiced by the failure to comply with Part 2 of the Act before considering whether to exercise its discretion to exercise any one or more of the powers listed in s 15(2).
The juxtaposition of the words in s 15(2) ‘purchaser has been prejudiced’ with the words ‘by the failure to comply with this Part’ may be considered as having two potential constructions. The first is that the prejudice must flow from the specific defect or failure to comply with Part 2 of the Act. The second is an alternative construction, namely that there is no need for the prejudice to flow by reason of the specific defect or failure but can be any prejudice, whether connected or unconnected with the reason or reasons for the Form 1 not complying with Part 2 of the Act.
To that extent, s 15(2) is ambiguous.
Legislative History of the Act
The Act replaced the Land Agents, Brokers and Valuers Act 1973 (the ‘predecessor Act’). Both the predecessor Act and the Act contain equivalent provisions in relation to the cooling-off period, the requirement for a vendor’s statement or Form 1 and rights arising out of the non-provision of or the provision of a defective Form 1.
In Myles Pearce and Co Pty Ltd v Leuci and Martin[27] the Full Court of the Supreme Court of South Australia considered the operation of the equivalent provisions that existed in the predecessor Act. In relation to the cooling-off period and the requirement for a vendor’s statement. Bleby J, who wrote the leading judgment, observed the policy of the predecessor Act, in the following terms:
The cooling-off period is inextricably linked with the delivery of the vendor’s statement, and it must be linked for a reason. That reason is not difficult to discern. The information required to be given by s 90 and by the Regulations is information which a purchaser in many cases will not be able readily to obtain. It is information which may well affect the purchaser’s decision to buy at all, or which may affect the price which the purchaser is prepared to pay. It appears reasonably clear that Parliament intended that a purchaser should be given all that relevant information, and then be allowed a reasonably short period in which to review the decision to purchase before becoming irrevocably bound by it… By linking the commencement of the cooling-off period to the provision of accurate information in the vendor’s statement, Parliament has provided the clearest inference that the cooling-off period is not to run until accurate information of a material kind has been provided. If some of that material information is not supplied or is misleading, the purchaser cannot make an informed decision, and the cooling-off period will not commence to run against the purchaser. [28]
[27] (1997) 193 LSJS 491.
[28] Ibid 498.
In Myles Pearce, the Court was considering whether a cooling-off period had commenced to run in the context of a private treaty and in circumstances where there was a defective vendor’s statement. In considering the defects in the vendor’s statement, the Court held that in that case a failure to provide information as to the existence of relevantly, a mortgage and a prior transaction affecting the land, were material defects which invalidated the vendor’s statement.

In Astill & Anor v South Esplanade Developments Pty Ltd[29] the Full Court of the Supreme Court of South Australia considered, amongst other things, ss 5 and 7 of the Act. In so doing the Court referred with apparent approval to the decision in Myles Pearce and Co Pty Ltd.
[29] [2007] SASC 231.
The underlying policy behind ss 5 and 7 of the Act is no different from that discussed by Bleby J in Myles Pearce in relation to the predecessor Act and which I have set out above.
In Highfield Property Investments Pty Ltd v Commercial and Residential Developments (SA) Pty Ltd, Blue J set out the history of the Act including the predecessor Act.[30] Insofar as s 15 of the Act is concerned, his Honour identified, obiter, the right to seek relief from a court under s 15 if the vendor’s statement was defective and the defect was material to the purchaser’s decision to purchase.[31]
[30] [2012] SASC 165, 23-27, [129]-[148].
[31] Ibid [125], [160].
Section 22 of the Acts Interpretation Act 1915 (SA) provides:
(1)Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2)This section does not operate to create or extend any criminal liability.
In South Australia v Lampard-Trevorrow,[32] the Full Court of the Supreme Court of South Australia observed:[33]
Section 22 of the Acts Interpretation Act 1915 (SA) should not be read as permitting a reference to the purpose of an Act only if it is first shown that the relevant provision “is reasonably open to more than one construction”: see Burch v South Australia (1998) 71 SASR 12 at 18-19 Cox J, at 27 Lander J and at 40 Bleby J. Consistently with contemporary approaches to statutory interpretation, s 22 can and should be read as permitting a consideration of the purpose of the legislation from the outset of the process of statutory construction.
[32] (2010) 106 SASR 331.
[33] Ibid [207].
The Act describes its purpose in broad terms and in this particular instance does not provide any assistance to the proper construction of this section.
In Myles Pearce & Co Pty Ltd,[34] Bleby J, made reference to the purpose of the predecessor Act in the passage I have set out above.[35]
[34] Myles Pearce & Co Pty Ltd v Leuci and Martin (1997) 193 LSJS 491.
[35] Ibid 498.
In considering the link between a valid Form 1 and the right to cool-off, Bleby J observed that cooling-off was a summary self-help remedy such that the purchaser does not have to justify the decision to cool-off to anyone. The decision to cool-off may or may not be related to the provision of the information required by the Act or the Regulations, a position that was a necessary consequence of the summary remedy that Parliament had provided.
As to the alternative remedy in the predecessor Act – s 91G, his Honour noted that remedy, which is in identical terms to s 15 of the Act, is not a summary remedy. His Honour said:
It is one that can only be invoked with the aid of a court. The right to cool-off does not survive settlement on the contract. The remedy under s 91G does. Section 91G is not an exclusive remedy available to the recipient of a defective statement. It should be seen as an alternative remedy. A purchaser who receives a defective statement, upon becoming aware of the defect, may choose to cool-off or alternatively may choose to affirm the contract and seek damages or some other remedy under s 91G or at common law. It cannot be said that s 91G provides an exclusive remedy for a defective vendor's statement. It provides an additional range of remedies where prejudice can be shown, and can be invoked before or after settlement.
Section 91G of the predecessor Act was inserted by amendment on 20 December 1990. The second reading speech[36] does not shed any light on the underlying purpose of the introduction of the provision, other than to note it was previously contained in ss 90(7) and (8) and 91(2) and (3). The only change is that a court will now be empowered to award damages and make such orders as may be just in the circumstances where the court avoids a contract instead of having to choose between avoiding the contract or awarding damages.
[36] Parliamentary Debates SA, 1990-91, Volume 1, second session, 750.
In relation to the non-application of a cooling-off period to an auction, in the second reading speech for the predecessor Act on 12 October 1972, the then Attorney-General, the Hon. Leonard James King (as he then was) said:[37]
With regard to auction sales, it would be impracticable for the cooling-off period to be applied. The holding of an auction is usually made known some time before it occurs. The salesman is not involved in inducing a particular person to buy as he is in the case of a sale by private treaty. The purchaser usually has ample opportunity to consider the nature of the transaction and his financial and other responsibilities if, at the subsequent auction, he is the successful bidder.
[37] Parliamentary Debates SA, 1972, Volume 2, third session, 2054.
The different scenarios as explained by the Attorney-General in the second reading speech highlight the different considerations that apply to private treaty sales as opposed to auctions.
In accordance with s 22 of the Acts Interpretation Act and indeed the common law approach to statutory interpretation, the Act is to be construed in the event of ambiguity in a way that would promote the purpose of the object of the Act.[38]
[38] See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [79].
The Act imposes an obligation on the vendor to provide particulars to the purchaser irrespective of whether the sale proceeds by way of private treaty or auction. So much so is apparent from the terms of s 7(1) of the Act, which provides that a vendor of land ‘must’ provide a vendor’s statement.[39]
[39] See ibid [78] per McHugh, Gummow, Kirby and Hayne JJ.
As the Attorney-General noted in the second reading speech to which I have referred above, if a party elects to purchase a property at an auction, then that party does so in circumstances where there is no right to cool-off. That is a decision for the party to make.
If however, the party then discovers that there is some non-compliance or defective Form 1 which had the party known the true position, would have influenced their decision to purchase at all or purchase at the price offered, or any other factor such that the party has suffered prejudice, then s 15 provides a remedy. In my view, that is the particular mischief to which s 15 is directed and is consistent with the obiter observations of Blue J in Highfield Property Investments Pty Ltd.[40]
[40] Highfield Property Investments Pty Ltd v Commercial and Residential Developments (SA) Pty Ltd [2012] SASC 165, 23-27, [129]-[148].
Under those circumstances, on a proper construction of s 15 of the Act, the prejudice which the purchaser has to establish must arise from the specific failure to comply with Part 2 of the Act. Were it otherwise, then s 15 would move from a provision which requires the identification of prejudice attributable to non-compliance and a causal connection between the two, to a section that requires prejudice of whatever nature irrespective of whether it flows from the non-compliance or not. Such an approach is inconsistent with the carve out in s 5 of the Act in relation to there being no cooling-off and thus no summary procedure available in relation to sales under auction conditions.
Statutory Easement - Prejudice
The question is what prejudice (if any) have the plaintiffs suffered or will suffer because of the non-disclosure of a statutory easement.
In cross-examination[41] Ms Cheshire gave evidence that the plaintiffs’ decision to purchase the Property relied mainly on the fact that Ms Richards wanted the plaintiffs to purchase it. She denied that the Form 1 had nothing to do with her decision.[42] I find that the main factor which drove the plaintiffs’ decision to purchase the Property was Ms Richards’ wishes but that in making that decision, the plaintiffs relied on the Form 1.
[41] T79.10-31.
[42] T75.30-76.1; T79.32-80.3.
Although Ms Cheshire said in evidence that initially she did not know what a statutory easement was, on reflection overnight she knew what it meant and understood it to be a means to connecting power to the property.[43] Ms Cheshire said that although she accepts everyone has power to their property, not everyone has an easement and from her point of view it would have been good to know where it is and how big it is for the purposes of putting things on the property. She said she had a previous experience where she had a house with an easement she could not build on.[44] She agreed that having seen the property with lights on, the question of the statutory easement made no difference to the decision to purchase the property.[45]
[43] T80.6 – 26.
[44] T81.11 – 22.
[45] T81.33 – T82.1.
Ms Richards gave evidence about the statutory easement. She had moved from Port Hedland to Adelaide with her three children and she spoke to her mother, Ms Cheshire, about investing in a property for her and the children to live in. As a result, she drove the process of looking into suitable parcels of land with her mother providing the money to purchase that land. She attended the auction with her mother and her husband, Tom.[46]
[46] T108.20 – 33.
Although she denied that Ms Cheshire made a bid at the auction, for the reasons I have set out above, I reject that evidence.
Insofar as the statutory easement is concerned, she expected the house to be connected to electricity. She noted no power storage pit at the front of the house and did not know how power was connected to the property.
The statutory easement is set out in an email in Exhibit P2, tab 16 from Ms Angela Clark, Easements Manager SA Power Networks, to the plaintiffs’ instructing solicitor sent 12 April 2019 in these terms:
…
Further to our discussions I advise that our system indicates that the only interest we would have in this property is the existing service pit which would provide supply to this property. This service pit would be located adjacent to the front property boundary. The statutory easement provisions outlined in your Form 1 would apply to the service pit.
Our records indicate that we have no other interests in this property.
No evidence has been adduced by the plaintiffs sufficient to satisfy the court that the plaintiffs have been prejudiced by the non-disclosure of the statutory easement.
In particular, there is no suggestion that the existing service pit would in any way interfere with the plaintiffs’ enjoyment of the property.
Accordingly, the plaintiffs have not established any prejudice arising from the non-disclosure of the statutory easement.
Environmental Assessment - Prejudice
The plaintiffs complain that the Form 1 is also defective because the section of the Form 1 titled ‘Particulars relating to environment protection’ had in its answer to clause 2(5) – ‘Is the vendor aware of an environmental assessment of the land or part of the land ever having been carried out or commenced (whether or not completed)?’ – ‘NO’.
Ms Richards’ evidence-in-chief is set out in her affidavit sworn 28 February 2019 together with its exhibits. Its redacted form is Exhibit P5A.[47]
[47] Exhibit P5A.
Ms Richards deposes as to what she described as ‘Contamination Information’ commencing at paragraph 22 of her redacted affidavit.
She deposes that due to the proximity of RAAF Edinburgh to the Property, she began to investigate the issue of contamination by ‘per and poly—fluoroalkyl substances’ (‘PFAS’). She says that she became aware that PFAS derived from the use of what she described as ‘Legacy Firefighting Foams’ at RAAF Edinburgh. Initially she sought the assistance of her sister who was previously a professional aviation firefighter at Adelaide Airport, to understand the effects of PFAS.
Ms Richards’ evidence is that her attempts to obtain information from Ms Roberts about potential PFAS contamination were unsuccessful. She contacted the Salisbury Council and was advised by the Council to contact RAAF Edinburgh directly because in her words it (the Base) ‘…was undertaking an investigation into the potential PFAS contamination of the Base and the surrounding areas’.[48]
[48] Exhibit P5A [26].
Ms Richards deposes that she also contacted the South Australian Health Department and was referred to JBS&G Australia Pty Ltd (‘JBS&G’) Community and Stakeholder Engagement Division of RAAF Edinburgh’s Investigation Team into PFAS contamination.
She further deposes that following that referral, she telephoned JBS&G and spoke with Ms Bronwyn White. As a result of that conversation she became very concerned about PFAS contamination and the fact that the Property falls within the investigation zone. In particular, she was concerned that PFAS is a contagion and that PFAS contamination was not mentioned in the Contract, the Form 1, or any other sales document.
In oral evidence, she confirmed that told her mother not to go ahead with the purchase of the property and settle. She agreed that there was nothing to stop her mother from leasing the land to someone else if she (Ms Richards) did not want to live there.
Ms Richards deposes that she will not willingly move into a property that may be contaminated by what she describes as ‘a known carcinogen’.[49]
[49] Ibid, [42].
Much of the cross-examination of Ms Richards in relation to this issue concentrated on whether or not PFAS was a known carcinogen. Understandably, Ms Richards, as the mother of three young children, and in turn, the plaintiffs as grandparents, are concerned as to whether or not the property may be the subject of PFAS contamination. Whether or not that substance is a known carcinogen, I am satisfied there is sufficient material available in the public domain, and to which I refer below, which would raise in any parent or grandparent, a concern for the welfare of children under circumstances of PFAS contamination at the Property or on or below its surface.
Environmental Investigation
Bronwyn Lesley White is an environmental consultant employed by JBS&G, an environmental consultancy firm. She has worked as an environmental consultant since 2005.
JBS&G was engaged by the Department of Defence in 2016 on an environmental consultancy project involving RAAF Edinburgh. Ms White has been involved in that consultancy since it was first awarded to JBS&G in 2016. In broad terms, JBS&G was employed to undertake an investigation into the nature and extent of PFAS contamination in and around RAAF Edinburgh. Its specific role was to manage the stakeholder and community engagement and communications with the community in relation to PFAS contamination.
Ms White gave evidence that her understanding of the reason for the investigation is that PFAS is a chemical which is or was found in firefighting foam and is persistent in the environment. She said that concerns had been raised that it was on the RAAF Edinburgh Base and may have moved off the Base. Investigations were being conducted at other defence bases around Australia concerning the same substance.[50]
[50] T151.8 – 13.
Ms White’s role in managing stakeholder engagement is to ensure that members of the community who may be impacted by or interested in the investigation are informed through various means, not only about the investigation but also the results of the investigation. In part, that occurred at meetings where the investigation and results were discussed.[51]
[51] T151.19 – 25.
Exhibit P7 comprises two maps. The first is a map showing the original investigation area termed the ‘Refined Investigation Area’. It includes the boundary of RAAF Edinburgh and the suburbs surrounding the Base.
The second map comprising part of Exhibit D7 depicts what is termed the ‘Further Updated Investigation Area’.
On both of those maps, the Property is marked by a black dot. It is readily apparent from a consideration of that Exhibit that the Property falls within the Investigation Area.
Ms White described the community engagement process.[52] She said that from ‘the beginning’, which I assume referred to a period during 2016, the main means of engagement in the community was through community meetings, held within six months of each other with the intention of keeping the community up to date. At the time of giving evidence in this trial, there had been five meetings and Ms White was about to organise a sixth.
[52] T154.3 – 158.5; T170.6-172.28.
The first community meeting was held on 31 October and 1 November 2016 at the John McVeity Centre at Smithfield Plains and was organised by the Department of Defence.
Ms White explained that she organised the next meeting, which was held on 23 March 2017 at St John’s Parish Hall in Salisbury. That meeting was advertised in the local newspaper, the ‘Northern Weekly’, for three weeks in advance of the meeting. On the Monday prior to the meeting, notice of the meeting was published in ‘The Advertiser’. The City of Playford and the City of Salisbury published notices on their Facebook pages. Radio interviews involving Defence personnel also occurred.[53]
[53] T155.17 – T157.5, T159.8 – 28.
Ms White said that at the second community meeting there were presentations by Defence personnel supported by the JBS&G technical team. There were also tables set up for stakeholders, that is, members of the community and others, to ask questions of other Commonwealth Department representatives. The South Australian Environment Protection Authority were present so people could speak to them if they needed to.[54]
[54] T157.30.
The third community meeting was held on 1 November 2016, the fourth on 17 May 2018 and the fifth on 11 December 2018.
Ms White gave evidence that after the second meeting, a letterbox drop to residents and businesses within the ‘Refined Investigation Area’ was performed. Two more letterbox drops occurred for residents or businesses within the further ‘Updated Investigation Area’. The letterbox drops were contracted out and it was the expectation of JBS&G that all residences in the investigation areas would be covered by the letter box drop.[55]
[55] T160.28 – T161.33.
The investigation is still continuing. The first phase of the investigation involved the sampling of ground water, surface water and soil. Ms White understands that phase as having been completed, as a report was presented to the community at the end of 2018. The next phase is the human health and ecological risk assessment process, which is now underway. The results will be presented to the community later in 2019.[56]
[56] T157.35 – T158.5.
The broadcasting protocols which Ms White has described applied to each of the meetings from number two to number five and will be applied to the planned sixth meeting.
Part of Ms White’s responsibility is to manage an information line for investigation on behalf of the Department of Defence so that when anyone from the community has a question, they are able to call the information line number. If they do, the details of the caller are recorded.
Ms White’s responsibility also involves sending information to people who contact her. That is done by means of fact sheets and presentations that are presented at the community meetings. The fact sheets and presentations are also on the investigation website and are publicly available.
Ms White identified the fact sheets from the March 2017 community meeting, the October 2017 community meeting, the May 2018 community meeting and the December 2018 community meeting[57] as well as presentations prepared by JBS&G and the Department of Defence for the March 2017 meeting, the November 2017 meeting, the May 2018 community meeting.[58]
[57] T170.6 – 38.
[58] T171.1 – 17.

I accept Ms White’s evidence.
Was the answer to question 2(5) in the Form 1 incorrect?
The issue is whether the information in the Form 1 dealing with environmental protection is incorrect.
A close examination of this section of the Form 1 reveals the following.
Clause 1 is the interpretation section. Clause 1(1) provides that:
environmental assessment, in relation to land, means an assessment of the existence or nature or extent of –
(a)site contamination (within the meaning of the Environment Protection Act 1993) at the land; or
(b)any other contamination of the land by chemical substances,
and includes such an assessment in relation to water on or below the surface of the land;’ (emphasis provided)
‘Site contamination’ within the meaning of the Environment Protection Act is found in s 5B of that Act and is in the following terms:
(1) For the purposes of this Act, site contamination exists at a site if—
(a)     chemical substances are present on or below the surface of the site in concentrations above the background concentrations (if any); and
(b)     the chemical substances have, at least in part, come to be present there as a result of an activity at the site or elsewhere; and
(c)     the presence of the chemical substances in those concentrations has resulted in—
(i)actual or potential harm to the health or safety of human beings that is not trivial, taking into account current or proposed land uses; or
(ii)actual or potential harm to water that is not trivial; or
(iii)other actual or potential environmental harm that is not trivial, taking into account current or proposed land uses.
It is readily apparent from the definition of ‘environmental assessment’ in the Form 1 that it is directed to site contamination ‘at the land’ or any other contamination ‘of the land’ and includes an assessment in relation to water on and below the surface ‘of the land’.
Clause 2 of the particulars relating to environment protection is directed at the vendor’s awareness of the matters in clauses 2(1), (2), (3) and (5). All of these subclauses relate to activities occurring or having occurred ‘at the land’ and any assessment ‘of the land’ or ‘part of the land’.
The note at the bottom of page 13 of the Form 1 where these questions are posed, is in the following terms:
These questions relate to details about the land that may be known by the vendor. A “YES” answer to the questions at items 2(1) or 2(2) may indicate that a potentially contaminating activity has taken place at the land (see sections 103C and 103H of the Environment Protection Act 1993) and that assessments or remediation of the land may be required at some future time (emphasis provided).
In my view, the particulars that are required to be produced are directed to the land in question. They are not directed to other land or a generalised investigation in an area in which the land may be located. Were it the case that there were specific investigations carried out in relation to the specific land in question, clearly, the particulars would have to be given. That however is not the case in this matter.
Accordingly, in answering ‘No’ to the question in clause 2(5) of the section relating to environment protection in the Form 1, the defendants did not give an incorrect answer and the Form 1 insofar as that part of the Form 1 is concerned, is not incorrect.
Since the answer was not incorrect, it follows that the plaintiffs are not entitled to any relief pursuant to s 15 of the Act, arising out of any reliance on the answer to clause 2(5) of the particulars relating to environment protection.
The defendant’s knowledge
Evidence was adduced at trial concerning any knowledge the defendants may have had of the investigations that were and are being carried out by or on behalf of the Department of Defence. In view of my finding as to whether the answer given to clause 2(5) of the Form 1 in the section titled ‘particulars relating to environment protection’ was accurate, the question does not arise. Nonetheless, for completeness, I deal with the question of whether the defendants were aware of the existence of the investigation.
Peter Shane How
Peter Shane How lives at 17 Wyatt Road, Direk with his wife and five children. He is the defendants’ neighbour and has lived at that property for about eleven to twelve years. He gave evidence that he became aware of the PFAS contamination issue arising out of RAAF Edinburgh about two and a half to three years ago because he heard it on the radio and read about it in the Messenger Newspaper (Northern Weekly). He also learned through the radio that there was a suggestion that PFAS contamination had leached outside RAAF Edinburgh. He became aware from reading the Messenger Newspaper that RAAF Edinburgh was putting on community information seminars about the PFAS contamination issue which he said he knew was from firefighting foam.[59]
[59] T132.31-133.15.
Mr How gave evidence that he attended the second community meeting. At that community meeting, he was advised not to eat anything from the creek but it was safe to play in and around the creek, and to grow vegetables on his property and eat them. He also said he had learned that the foam was carcinogenic but there was no concern outside the base other than eating the marine life from the creek.[60]
[60] T140.5-28.
Mr How said he saw a drilling rig on his street near the edge of the road which he assumed related to the contamination from RAAF Edinburgh.[61]
[61] T141.24-143.30.
Mr How gave evidence that he is friendly with the defendants and would go to their house for parties approximately twice a year. He said that at one of the parties, when the issue of PFAS contamination was first in the News, he thought he brought it up in conversation with a group of people. At that time, other neighbours of the defendants were present although he was unsure if Mr Jennings was present. He said Mr Jennings might have been present. Mr Jennings denied being present at any such conversation.[62]
[62] T266.8-25.
Mr How said the conversation did not last very long and no one seemed to care about it.[63]
[63] T141.24-142.14.
I accept Mr How’s evidence that he raised the question of PFAS contamination at a party at the Property however I find that Mr Jennings was not present during the conversation.
Jason Jennings
The first defendant, Mr Jennings, is an electrician. He is married to the second defendant, Helen Jennings and they have four children. He and Ms Jennings thought about selling the Property in 2017. He knew Ms Roberts because she managed an investment property for them and he spoke to her about maximising the return on the Property. In or about September 2018 Mr and Ms engaged Ms Roberts who advised that an auction was the best way to proceed.
The Contract was due to settle on 11 January 2019 and he was told by Ms Roberts shortly before settlement that the plaintiffs were unhappy with proceeding with the settlement as the land was contaminated.[64] The first he and Ms Jennings knew about the allegation that the land might be contaminated was when they were told by Ms Roberts. Mr Jennings gave evidence that he and Ms Jennings started researching the potential PFAS contamination on the internet. Mr Jennings’ evidence is that prior to making those investigations he knew nothing about potential firefighting foam contamination in the area. In particular he had never read anything about the topic, nor spoken to anyone, nor discussed it with his wife, nor heard that topic on any broadcast media.[65]
[64] T255.10-14.
[65] T255.10-256.9.
As a result of their investigation on the internet, Mr and Ms Jennings found out that the PFAS contamination was from RAAF Edinburgh and originated from firefighting foam.
Mr Jennings’ daily routine is that he works from 6am to 3.30pm, picks up his children from his parents’ house, cooks them dinner and then goes to the gym. He does not watch any current affairs program and does not watch television. He listens to an FM radio station on the way to and from work and does not read newspapers. Although they get the Messenger Newspaper they usually use it for fires or they put it in the bin.[66]
[66] T257.1-258.3.
Although he saw a drilling rig near his house, there are many houses being built at the end of his street so he assumed it was to do with that development and he was not suspicious about it relating to PFAS contamination in the area.
Helen Jennings
Helen Jennings gave evidence that she had not heard any suggestion of contamination prior to 9 January 2019 when she and Mr Jennings were contacted by the conveyancer who said that the plaintiffs did not want to settle because the soil and water on the Property was contaminated.[67]
[67] T272.23-272.34
After 11 January 2019, Ms Jennings started making her own investigations. She called Ms White and said that Ms White told her that PFAS does not cause cancer. She also confirmed that the Property had never been investigated or soil tested. Ms White emailed her further information.
Ms Jennings’ evidence is that prior to receiving the email from Ms White, she did not know any of the information in the email. Ms Jennings understands now the risk of PFAS contamination relates to firefighting foam but prior to the auction she had never heard anything nor spoken to anyone about PFAS contamination in the area.[68]
[68] T275.12-25.
She said that she does not watch television, she does not read newspapers whether online or otherwise, specifically she does not read the Messenger Newspaper. She listens to Greek music in her car through her own playlist.
Ms Jennings explained that the children collect the mail, they give her the entirety of the mail which is in the mailbox. She has never seen anything in her mailbox relating to firefighting foam,[69] indeed she has never received any information whatsoever in relation to firefighting foam.[70]
[69] T275.26-276.8.
[70] T275.17-23.
Although neither Mr or Ms Jennings partake in media, by reason of at least the efforts made by the Department of Defence through JBS&G, on the balance of probabilities, I find that Mr and Ms Jennings were aware of the issue of PFAS contamination in the general area.
Having found that, I also find that they were not concerned by the investigation that was ongoing and although aware of it, are likely to simply have put it out of their minds in the absence of any specific investigation directed at the Property.
Issues 5 and 6
Since the plaintiffs are not entitled to the relief claimed, issues 5 and 6 do not arise.
Conclusion
The plaintiffs have failed to satisfy the Court that they have suffered any prejudice by reference to any specific part of the Form 1 that is defective and accordingly I dismiss the plaintiffs’ claim.
I will hear the parties on the question of Costs.