Cheshire v Jennings (No 2) - [2021] SASCFC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CHESHIRE & ANOR v JENNINGS & ANOR (NO 2)
[2021] SASCFC 11
Judgment of The Full Court
(The Honourable Justice Peek, the Honourable Justice Doyle and the Honourable Justice Livesey)
19 February 2021

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES
CONTRACTS - PARTICULAR PARTIES - VENDOR AND PURCHASER
The appellants purchased a property at 15 Wyatt Road, Direk (the Property) for their daughter at an auction in November 2018. A contract was executed that same day, and the appellants were provided with a Form 1 pursuant to the Land and Business (Sale and Conveyancing Act) 1994 (SA) (the Act). After the contract was executed and the Form 1 signed by the appellants, the appellants paid a deposit of $65,000.
Settlement was scheduled to occur on 11 January 2019. However, on 9 January 2019, the appellants refused to settle on the basis that an environmental assessment had been conducted at the Property which had not been disclosed in the Form 1. The environmental assessment to which the appellants referred concerned an investigation conducted by the Department of Defence regarding the existence, nature and extent of contamination by Per- and polyfluoroalkyl substances (PFAS) in the areas surrounding the Royal Australian Airforce Edinburgh Base (the Investigation). Question 2(5) on the Form 1 asked “is the vendor aware of an environmental assessment of the land or part of the land ever having been carried out of commenced (whether or not completed)?”. The respondents answered this question in the negative.
The plaintiffs sought relief under s 15 of the Act, in particular, an order that they be allowed to avoid the Contract and have the deposit returned to them. The trial Judge dismissed their claim, finding that the respondents’ answer to question 2(5) was correct and that the appellants were not entitled to any relief under s 15 of the Act. The appellants appealed against this dismissal.
Held, per Livesey J (Peek J and Doyle J agreeing), allowing the appeal:
1.      It was open to the trial Judge to find that the respondents were aware of the Investigation given the wide-ranging information campaign.
2.      The essential function of a Form 1 is to ensure that purchasers have sufficient and accurate information to allow them to make an informed decision about whether to enter into a contract, and at what price.
3.      The term “environmental assessment”, as used in Form 1, operates as an umbrella term that potentially encompasses myriad investigations and activities. A narrow view of what encompasses an environmental assessment should be rejected.
4.      The suggested interpretation of the term “environmental assessment” which requires that an assessment pertain exclusively to, or specifically on, the land the subject of the Form 1 is unduly restrictive and inconsistent with the legislative regime.
5.      The Investigation was an "environmental assessment" for the purposes of the Form 1 and it should have disclosed in the answer to question 2(5).
6. The trial Judge found that the appellants would not have purchased the house had they been told about the "environmental assessment" concerning possible PFAS contamination and that this constituted prejudice for the purpose of s 15(2) of the Act.
7.      The appellants are entitled to avoid the contract.
Environment Protection (Site Contamination) Amendment Act 2007 (SA); Environment Protection Regulations 2009 (SA); Environment Protection Act 1993 (SA) s 5B; Land and Business (Sale and Conveyancing Act) 1994 (SA) s 15, s 7, s 10, s 5; Land and Business (Sale and Conveyancing) Regulations 2010 (SA); Land and Business Agents Act 1973 (SA); National Environment Protection (Assessment of Site Contamination) Measure 1999 (Cth), referred to.
Astill v South Esplanade Developments Pty Ltd [2007] SASC 231; Cheshire & Anor v Jennings & Anor [2019] SADC 79, discussed.
Abalos v Australian Postal Commission (1990) 171 CLR 167; Brayson Motors Pty Ltd (In Liq) v Commissioner of Taxation (Cth) (1985) 156 CLR 651; Commissioner of Taxation v Macoun (2014) 227 FCR 265; Devries v Australian National Railways Commission (1993) 177 CLR 472; Director of Consumer Affairs Victoria v Glenwill Pty Ltd [2009] VSC 76; F, BV v Magistrates Court of South Australia (2013) 115 SASR 232; Fox v Percy (2003) 214 CLR 118; Gray v Minister for Planning (2006) 152 LGERA 248; Jones v Hyde (1989) 63 ALJR 349; Lee v Lee (2019) 266 CLR 129; Master v Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; Plaintiff M47-2012 v Director-General of Security (2012) 251 CLR 1; Smith v New South Wales Bar Association (1992) 176 CLR 256; South Australia v Lampard-Trevorrow (2010) 106 SASR 331, considered.

CHESHIRE & ANOR v JENNINGS & ANOR (NO 2)
[2021] SASCFC 11

Full Court: Peek, Doyle and Livesey JJ

PEEK J: I would allow the appeal. I agree with the orders proposed by Livesey J and with his reasons.
DOYLE J: I agree with the reasons of Livesey J and the orders he has proposed.
LIVESEY J: The appellants, Mr and Mrs Cheshire (the plaintiffs), appeal against the dismissal of their claim to avoid a contract for the sale and purchase of land pursuant to s 15 of the Land and Business (Sale and Conveyancing) Act 1994 (SA) (the Act).
The plaintiffs, as purchasers, brought their claim against the respondent vendors, Mr and Mrs Jennings (the defendants). The central issue was whether the defendants should have disclosed an “environmental assessment” concerning the land as part of the regime for pre-contractual disclosure in what is known as a “Form 1” under the Act.
For the reasons that follow, I would allow the plaintiffs’ appeal.
Background
The plaintiffs are husband and wife and the parents of Ms Richards, who has three children. Ms Richards was searching for a property in which to live, and found a residence at 15 Wyatt Road, Direk, South Australia (the Property), in which the defendants had lived since 2010.
An auction of the Property was held on 17 November 2018. Ms Cheshire, Ms Richards and Ms Richards’ husband attended. Ms Cheshire made a bid of $650,000. The auctioneer, Mr Roenfeldt, told Ms Cheshire that if a contract was executed before midnight there was no cooling-off period under the Act. He then spoke to the defendants. They remained firm on their set reserve price of $700,000. Mr Roenfeldt re-confirmed Ms Cheshire’s bid, calling it three times, and then announced that it would be “held over” for further negotiation with the defendants.[1]
[1] Mr Roenfeldt explained to the Court at trial that “held over” meant that the auction was still on foot until midnight that day, which may be contrasted with the expression “passing in” which means that the auction has concluded. He explained these are not legislated terms, but are customary in the industry: Cheshire v Jennings [2019] SADC 79, [31].
Later that day, the defendants’ real estate agent, Ms Roberts, contacted the plaintiffs to say that the defendants had accepted Ms Cheshire’s bid. On or about 3.30 pm that day, the plaintiffs entered into a contract with the defendants for the sale and purchase of the Property (the Contract). On or about that time, Ms Roberts gave Ms Cheshire a “Form 1 – Vendor’s Statement” (the Form 1) pursuant to the Act. Ms Cheshire signed the Contract, the Form 1 and paid a $65,000 deposit. Mr Cheshire’s signature also appeared on the Contract, but not on the Form 1.
Settlement was scheduled 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. As a consequence of this failure, the plaintiffs refused to settle. In response to this refusal, the defendants issued a Notice to Complete on 17 January 2019. This required the plaintiffs to settle by 31 January 2019, or the contract would be terminated. The plaintiffs again refused to settle. On 1 February 2019, the defendants terminated the Contract and retained the deposit.
Between 2016 and December 2018, an investigation had been commenced by the Department of Defence (Defence) regarding the existence, nature and extent of contamination by Per-and Poly-Fluoroalkyl Substances (PFAS) found in firefighting foam used at the Royal Australian Air Force (RAAF) Edinburgh Base and surrounding areas (the Investigation). The Property is located in the area surrounding the Edinburgh RAAF Base. The defendants’ Form 1 had indicated that a section entitled “Particulars relating to environment protection” applied, but answered no to the question under Item 2(5) (question 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)?”.
It is this response, and the trial Judge’s interpretation of that response, that are in issue on this appeal.
In short, the plaintiffs contend that the trial Judge’s interpretation of question 2(5) was incorrect, as was his application of it to the facts proved before him. They contend that they are entitled to avoid the Contract.
The proceedings below
At trial, the plaintiffs sought:
1.A declaration that the Form 1 dated 17 November 2018 is non-compliant;
2.A declaration that the Notice to Complete and Notice of Termination are invalid;
3.A declaration that the purported termination of the Contract by the defendants was unlawful; and
4.An order that the defendants repay the deposit of $65,000 to the plaintiffs.
The trial Judge refined the issues and formulated them as questions to be answered. Those that remain relevant on this appeal are as follows:
1.Are the plaintiffs entitled to relief under s 15 of the Act?
2.If so, in the exercise of the Court’s discretion, to what relief (if any) are the plaintiffs entitled?
The trial Judge heard evidence from four witnesses for the plaintiffs: Ms Cheshire and Ms Richards, whose evidence-in-chief comprised filed affidavits, Mr How, a neighbouring householder in the suburb of Direk, and Ms White, an environmental consultant from JBS&G Australia Pty Ltd (JBS&G), engaged by Defence as part of the Investigation to manage stakeholder engagement. Evidence was also led from six defence witnesses: the defendants, Mr Roenfeld and his clerk Ms May, Ms Roberts, and Mr Manolakis, the proprietor of the conveyancing firm retained by the defendants.
Question 1: Are the plaintiffs entitled to relief under s 15 of the Act?
Section 15 of the Act provides:
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 first requires that the Form 1 be “defective” to enliven any remedy. The plaintiffs identified two potential defects: the absence of Annexure A (to which the Form 1 referred) concerning statutory easements relating to the Property, and the defendants’ answer “NO” to question 2(5).
Section 10 of the Act requires that a Form 1 “be accurate as at the date of service on the purchaser”. If, after the service of the Form 1, but before a contract is signed, changed circumstances require that a fresh Form 1 be prepared, s 10(2) stipulates that a notice of amendment must be served on the purchaser. The vendor’s failure to provide accurate disclosure to a potential purchaser represents a breach of s 10 of the Act.
The trial Judge addressed the preliminary question of the proper construction of s 15 of the Act. The trial Judge stated that s 15(2) was “ambiguous”. However, his Honour went on to take the view that s 15 of the Act provides a remedy where a party purchases a property at auction, and later discover the Form 1 is defective or non-compliant in a way which, “had the party known the true position, would have influenced their decision to purchase at all or purchase at the price offered …”. [2] The trial Judge held that:[3]
… 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.
[2] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [105].
[3] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [106]
As to the first alleged defect, the non-disclosure of a statutory easement relating to the means by which power was connected to the Property, although Ms Cheshire gave evidence that it would have been “good to know” of the statutory easement, she agreed that the statutory easement made no difference to the decision to purchase.[4] Accordingly, the trial Judge held that the plaintiffs failed to establish that they had suffered any prejudice from the non-disclosure of the statutory easement.[5] Though raised in the grounds of appeal, this issue was abandoned before the hearing of the appeal.
[4] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [109].
[5] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [114].
As to the second defect, the response regarding the absence of any environmental assessment in the Form 1, Ms White gave evidence that she discovered that concerns had been raised with Defence that the PFAS contamination may had moved off the RAAF Edinburgh Base and into surrounding areas. As a part of the investigation, two areas in particular were investigated: the “Refined Investigation Area” and the “Further Updated Investigation Area” (together the Investigation Area), within which the Property is located.[6] Ms Richards said that she had commenced her own inquiries into the PFAS contamination, given the proximity of the RAAF Edinburgh Base to the Property, and determined that the Property fell within the Investigation Area. In particular, Ms Richards gave evidence that she would not willingly move into any property that may be contaminated by what she described as “a known carcinogen”.[7] The trial Judge observed that, whether or not PFAS is a known carcinogen, he was satisfied that there was sufficient material in the public domain to “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”.[8] The Judge accepted that this was an issue which, if revealed, would have influenced Ms Richards and affected the plaintiffs’ decision to purchase the home for their daughter and her family.
[6] Exhibits P7 and D7.
[7] Exhibit P5A [42].
[8] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [126].
The trial Judge then assessed whether the answer the defendants provided to question 2(5) was correct. His Honour interpreted “environmental assessment”[9] and “site contamination”[10] as being directed “at the land” or “of the land” and if, in relation to water, “on or below the surface of the land”.[11] Ultimately, the trial Judge held that the defendants’ answer to question 2(5) was correct and that the plaintiffs were not entitled to any relief pursuant to s 15 of the Act because:[12]
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.
[9] Defined in Clause 1 of the Form 1.
[10] Defined in the Environment Protection Act 1993 (SA), s 5B.
[11] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [148].
[12] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [153].
Although it strictly did not arise, given the finding that the answer to question 2(5) was correct, his Honour addressed whether the defendants were aware of the existence of the Investigation. Ms White gave evidence of multiple community meetings, which were continuing at the time of trial. These were advertised in the local newspaper, the Advertiser, Facebook pages, radio interviews and letterbox drops. The factsheets and presentations given at community meetings were also made publicly available.
The defendants’ evidence was, however, that the first time they knew of the PFAS contamination issue was when Ms Roberts told them after the plaintiffs raised concerns before settlement. The defendants each gave evidence to the effect that they do not watch television or read the news, in particular, the local newspaper. Mr Jennings stated that, although he saw a drilling rig near his house, as there were many houses being built at the end of his street, he assumed it related to that development and did not suspect it concerned the investigation of PFAS contamination in the area.
While the trial Judge found that Mr and Mrs Jennings were aware of the issue of PFAS contamination in the general area, his Honour also found that they were not concerned with the Investigation, and were likely to have simply “put it out of their minds”:[13]
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.
Question 2: If so, in the exercise of the Court’s discretion, to what relief (if any) are the plaintiffs entitled?
[13] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [173]-[174].
As the trial Judge found that the plaintiffs were not entitled to the relief claimed, Question 2 did not arise.
The amended grounds of appeal
The plaintiffs filed Grounds of Appeal on 10 July 2019. These grounds, as subsequently amended to remove Ground 3.3, are as follows:
3.1The learned trial judge erred in finding:
3.1.1 that question 2(5) in the material Form 1 is directed to site contamination “of the land” and includes an assessment in relation to water on and below the surface “of the land” (Reasons for Decision (“RFD”) paragraph 150); and
3.1.2 that particulars that are required to be produced are directed to the land in question; and they are not directed to other land or a generalised investigation in an area in which the land may be located; and that it was not this case that particulars of the investigations into the nature and extent of PFAS contamination in and around RAAF Edinburgh (“the investigation”) had to be given (RFD paragraph 153); and
3.1.3 that accordingly the answer provided to question 2(5) of the particulars in the Form 1 was not an incorrect answer (RFD paragraph 154).
3.2Whereas the learned trial judge ought to have found that the investigation was an environmental assessment in relation to land and including the land purchased by the appellants being an assessment of the existence or nature or extent of site contamination at the subject land or any other contamination at the subject land by chemical substances; and that accordingly the answer to question 2(5) of the particulars in Form 1 ought to have been yes.
3.4The learned trial judge erred by failing pursuant to s 15(2)(a) of the Act to avoid the contract for sale and purchase of the subject land.

As can be seen, appeal Grounds 3.1 and 3.2 broadly correspond to Question 1 considered by the trial Judge, whilst Ground 3.4 corresponds to Question 2.
The defendants’ Notice of Alternative Contention
The defendants subsequently filed a Notice of Alternative Contention dated 23 July 2019, and relied upon the following ground:
In addition to those reasons upon which the decision the subject of this appeal was held, the learned trial judge:
…
4.In relation to the issue of whether the Defendants were aware of the issue of PFAS contamination in the general area (RFD at paragraph 173 and 174), ought to have found on the evidence that the Defendants were not aware of that issue.
The issues for determination on this appeal
The grounds of appeal give rise to two central issues for determination:
1.Whether the defendants, as sellers of the Property, were aware of the Investigation occurring at and around the RAAF Edinburgh Base; and
2.Whether the trial Judge’s interpretation of the Form 1 requirement was correct. This raises the following matters:
2.1As a matter of law, what does question 2(5) require?
2.2As a matter of fact, did the Investigation at and around the RAAF Edinburgh Base apply to question 2(5)?
The answers to these questions will determine whether the plaintiffs are entitled to avoid the contract and have their deposit returned pursuant to s 15(2)(a) of the Act. As the trial Judge identified, these orders can only be made if it is shown that the plaintiffs have been “prejudiced by the failure to comply” with s 7 of the Act, namely the provision of an inaccurate Form 1.
Issue 1: The factual basis of the defendants’ “awareness”
Whether the defendants were “aware” of the Investigation is purely a question of fact. The defendants argue that the trial Judge ought to have found that the defendants were not aware of the Investigation on the following factual basis:
·The defendants each gave evidence that the first time they heard of potential PFAS contamination was on 9 January 2019, after the Form 1 was served on the plaintiffs.[14]
·After being notified of the alleged contamination, Mr Jennings undertook internet research, prior to which he knew nothing about said contamination, nor had he read, heard or discussed such contamination with anyone, including his wife.[15]
·After being notified of the alleged contamination, Mrs Jennings contacted Ms White to inquire about said contamination, following on from which Ms White emailed her a large amount of information that she had not previously seen.[16]
·There was no direct evidence that the defendants received notice of the Investigation.
-The Property did not have a bore on it and door knocks were conducted to addresses where there was a registered bore.
-There was no evidence the defendants attended the community meetings.
-JBS&G contracted out the letterbox drop[17] and no record was kept of the individual addresses to which the pamphlets were delivered. Accordingly, JBS&G have no way of verifying the defendants received the mailout.
-Mrs Jennings or the children (who then give it to Mrs Jennings) collect the mail.[18] The defendants do not read newspapers, nor in the last year or so prior to trial during which they started receiving pamphlets, had they seen anything in the mailbox in relation to firefighting foam and/or PFAS.
[14] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [164], [168].
[15] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [164].
[16] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [169]-[170].
[17] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [139].
[18] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [172].
Despite this evidence, and the fact that the trial Judge made no express adverse credit or reliability findings, the Judge concluded that the defendants were aware of the contamination issue, and in turn the Investigation. The defendants contend that this finding failed to engage with the evidence.
The plaintiffs rely on the evidence of Ms White, who referred to the various comprehensive and extensive means JBS&G employed across all forms of media,[19] to what was described as “a point of saturation”. The dates of the dissemination of information, on the evidence, ranged between 4 November 2015 and 6 February 2019. The plaintiffs submit that the factual basis for a finding that the defendants were aware of the Investigation is as follows:
[19] Outlined in Appendix 1 to the Appellants’ Outline of Submissions in Response to Respondents’ Cross Contentions (Notice of Alternative Contentions) dated 7 April 2020.
·The Property is located immediately adjacent to the south-western boundary of the RAAF Edinburgh Base, within walking distance, as well as being in close proximity of a creek that flows through the Base and being on the line of the Helps Road Drain that runs into the Kaurna Park Wetland. Both the creek and the ground water in the Wetland are suspected of being contaminated or are contaminated.[20]
[20] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [158].
·During the Investigation, Ms White’s role was to manage stakeholder engagement 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.”[21] The ways in which information was disseminated included the following:
[21] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [130].
-Community meetings every six months;
-Community newsletters and other documents related to community meetings;
-Advertising in local and state-wide newspapers (in print and online);
-Letterbox drops to householders (at all times including the Property) in the Investigation Area about three weeks before each community meeting;
-Factsheets and presentations presented at the community meetings are publicly available on the Investigation website;
-Door knocks conducted in the Investigation Area that primarily focused on registered bore holders, but that may have included other householders;
-During later meetings, general invitations were delivered to local councils asking for them to be displayed and distributed to various community facilities, including community centres, church halls and libraries;
-Facebook posts; and
-Coverage on television media.
The defendants’ neighbour, Mr How, also gave evidence at trial to the effect that the information regarding the PFAS contamination in the area reached him even though his property – next door at 17 Wyatt Road, Direk, South Australia – was not the subject of any sampling.[22]
[22] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [157]-[162].
The plaintiffs contend that, against this background, the trial Judge was entitled to be sceptical of the defendants’ evidence that they lived in what the plaintiffs termed an “information-free bubble”. When finding that the defendants were aware of the Investigation, but likely put it out of their minds, the trial Judge simply did not accept their evidence. This finding was, they say, open to the trial Judge on the evidence before him.
The defendants argue that the finding that they were aware of the Investigation, but not concerned about it,[23] is inconsistent with two other matters. First, the trial Judge’s earlier conclusion that possible PFAS contamination at the Property would raise a concern in any parent or grandparent.[24] Secondly, upon becoming aware of the contamination issue, the defendants made immediate inquiries, including contacting Ms White, and this demonstrated their concern.[25]
[23] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [174].
[24] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [126].
[25] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [164].
The plaintiffs say that, whether the defendants’ awareness gave rise to a concern in them is not inconsistent with the trial Judge’s earlier finding about the plaintiffs’ concerns.[26] This is because that earlier finding specifically related to whether a wrong answer to question 2(5) would have caused prejudice to a purchaser, namely the plaintiffs and their daughter, and did not relate to the defendants.
[26] Cheshire & Anor v Jennings & Anor [2019] SADC 79, [126].
The plaintiffs also submit that, insofar as the defendants’ conduct upon becoming aware of the contamination is inconsistent with the trial Judge’s findings, this is because the defendants’ response was concerned with the effect the contamination would have upon the Property and the contract.
Consideration
There is an inevitable tension between the obligation in an appellate court to conduct a real review of the evidence, and the restraint that an appellate court must exercise in deference to the advantages a trial Judge has in seeing and hearing the witnesses give their evidence in court. The High Court has confronted this tension on several occasions, including in the well-known trilogy of Jones v Hyde,[27] Abalos v Australian Postal Commission[28] and Devries v Australian National Railways Commission.[29] In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ stated:[30]
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
(Citations omitted)
[27] Jones v Hyde (1989) 63 ALJR 349.
[28] Abalos v Australian Postal Commission (1990) 171 CLR 167.
[29] Devries v Australian National Railways Commission (1993) 177 CLR 472.
[30] Fox v Percy (2003) 214 CLR 118, [28]. See also Lee v Lee (2019) 266 CLR 129, [55] (Bell, Gageler, Nettle and Edelman JJ).
The trial Judge made no explicit findings about the defendants’ demeanour, credit or reliability. However, a close reading of his Honour’s judgment as a whole, and paticularly [173] and [174], shows that he simply did not accept their evidence on this point. He rejected their denials. It was open to his Honour to conclude that, despite the defendants’ denials, they were aware of the contamination and the Investigation. It was not necessary to find that they were dishonest in their denials.[31] Clearly, he was prepared to make a finding which was contrary to their evidence without impugning their honesty. That was open to him. As well, that his Honour made findings contrary to the evidence of the defendants without justifying his decision by direct reference to his advantage in seeing and hearing the witnesses give evidence does not mean that he did not make use of that advantage. As McHugh J (Mason CJ, Deane J, Dawson and Gaudron JJ agreeing) explained in Abalos v Australian Postal Commission:[32]
In S.S. Hontestroom v. S.S. Sagaporack, Lord Sumner pointed out that:
“not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.”
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”: Watt or Thomas v. Thomas.
(Citations omitted)
[31] Smith v New South Wales Bar Association (1992) 176 CLR 256, 271 (Deane J).
[32] Abalos v Australian Postal Commission (1990) 171 CLR 167, 178.
There is no basis upon which to interfere with the trial Judge’s finding of fact on this issue. Whilst greater emphasis has in recent times been given to the need for, and scope of, appellate review, there is in this case no basis to doubt the advantages the trial Judge had due to seeing the defendants give their evidence and make their denials. Perhaps more importantly, the trial Judge was entitled to doubt, and ultimately to reject, the suggestion that the defendants remained ignorant of what the evidence showed was a remarkably wide-ranging media campaign that included leaving leaflets in the defendants’ letterbox.
The defendants’ submissions about any suggested inconsistencies in the Judge’s reasons in relation to the defendants’ lack of concern must also be rejected, essentially for the reasons advanced by the plaintiffs. However, these made little to no difference to his Honour’s final assessment about whether the defendants were aware of the alleged PFAS contamination and, in turn, of the Investigation.
In my view, the Notice of Alternative Contention must be dismissed.
Issue 2.1: As a matter of law, what does question 2(5) mean?
There are three essential words and phrases within question 2(5) that must be considered: “aware”, “environmental assessment” and “of the land or part of the land”.
Turning first to the meaning of “aware”. Counsel for the defendants argued that awareness “is the ability to summon particular knowledge at a particular temporal juncture”, such that the awareness relevant to question 2(5) is as at the time the defendants completed their answer in Form 1. As, on the defendants’ case, they only became aware of the Investigation after filling out the Form 1, they were not “aware” for the purposes of question 2(5).
The plaintiffs’ counsel adopted the primary position that, whether awareness has a temporal aspect to it is irrelevant, as on the correct construction of the trial Judge’s reasons, his Honour found that the defendants had requisite awareness at the time they completed the Form 1. Nevertheless, for completeness, counsel accepted that awareness, as suggested arguendo, requires that a person be put on notice, or have notice, of a particular matter, and once that awareness is acquired, it remains.
Turning to “environmental assessment” and “of the land or part of the land”, counsel for the plaintiffs contended that an investigation (such as that which Defence conducted in and around the RAAF Edinburgh Base) is one means of conducting an assessment. That is, an “environmental assessment” for the purpose of the Form 1 was being undertaken as a continuing line of investigation. The plaintiffs argued that an assessment can be of a particular site, or it can be of an area.
In summary, the plaintiffs contended that the definition of “environmental assessment” within the Form 1 – an assessment of the existence, nature or extent of, inter alia, any “site contamination” within the meaning of the Environment Protection Act 1993 (SA) (the EPA) – raises the following matters relating to “of the land or part of the land”. First, “site contamination” under s 5B of the EPA is defined by reference to a “site” and elsewhere, contemplating activities beyond a defined plot of land. Secondly, “site” as defined under s 3(1) of the EPA relates to an area of land regardless of ownership. Thirdly, the definition of “environmental assessment” is to be construed as meaning that the assessment, whatever the geographical area, must include or encompass the land, in this case the Property, so that it relates to the land, even if it also relates to other land. There is no requirement that it be solely dedicated to the land. Consequently, the plaintiffs argued that the defendants should have answered question 2(5) in the affirmative.
The defendants responded that the trial Judge’s interpretation was correct, that is, “of the land or part of the land” is directed to the Property itself, and not a broader area within which the Property may fall. The defendants’ suggested interpretation of “environmental assessment” was similarly narrow, being testing conducted specifically on the Property, differentiating it from the term “investigation”, which embraces a number of other factors to be considered, such as the area to be investigated, the protocol and nature of any testing undertaken and any subsequent reports prepared. Thus, the defendants defined the parameters of question 2(5) as being tied to the land the subject of the sale rather than a broader area within which the Property fell. As the Property itself was not subject to any assessment or investigation such as testing of ground water or soil sampling so to determine PFAS contamination at the Property specifically, there was no “environmental assessment” explicitly tied to the land that needed to be disclosed in the Form 1.
Consideration
To determine the proper meaning of question 2(5) in the Form 1, it is first necessary to understand the broader legislative regime. Section 7 of the Act requires a vendor of land (or a small business) to, at least 10 clear days before settlement, serve on the purchaser a statement in the prescribed form setting out the rights of a purchaser under s 5 and prescribed particulars relating to the land (a Form 1). Section 10(1) requires that a Form 1 be accurate at the time of service on the purchaser.
Regulations 8 and 9 of the Land and Business (Sale and Conveyancing) Regulations 2010 (SA) (the Regulations) prescribe the form and substance of the Form 1 for the purposes of s 7 and the pro-forma Form 1 in Schedule 1.
While s 5 does not confer a right to rescind in those who purchase at or on the day of an auction, a purchaser has a right to seek an order under s 15 to avoid a contract, award damages or grant other relief if the Court is satisfied that:
1.The Form 1 was not given or certified as required by Part 2, or was defective; and
2.The purchaser has been prejudiced.
These, and the other provisions comprising Part 2 of the Act, in conjunction with the Regulations, are designed to ensure that accurate information, relevant to a decision to purchase, is provided to a purchaser before settlement. The Act places the onus of providing that information on the vendor and imposes penalties for non-compliance. The original impetus behind the introduction of the mandatory disclosure provisions focused on the protection of purchasers. The Attorney‑General’s second reading speech explained the purpose of the former s 90 of the Land and Business Agents Act 1973 (SA) (the equivalent to s 7 of the Act) as follows:[33]
This clause serves a very important purpose. It is well known that the system of conveyancing in South Australia differs very materially from the traditional English system and from the system obtaining in the other States. In the other States, the parties are referred to solicitors at a relatively early stage in the transaction … generally speaking, the solicitor for the purchaser will satisfy himself by requisitions to the vendor’s solicitor that there is no encumbrance or restriction on the use and enjoyment of the premises, before settlement takes place. This conveyancing system provides the maximum protection to the parties, and minimises the danger, in particular, of the purchaser paying out his money and acquiring a defective title or a title which is affected by some restriction as to use or enjoyment. For this protection, however, the parties have to pay fees which are substantially higher than the fees payable on a land transaction in South Australia. … the system is inexpensive, but the protections given by the more formal and elaborate system of having the parties separately represented and by the exchange of requisitions are lost. Certain of the provisions of this Bill are designed to endeavour to give the public of South Australia more of the protections which are enjoyed under the more formal conveyancing system without the loss of the economies inherent in the South Australian system. This clause is an important provision in this regard. It seeks to protect the purchaser against the danger of paying for land which is subject to encumbrances or restrictions which affect its value and utilities. As there is no separate representation of the parties and no requisitions in most cases, it is sought to achieve this result by imposing on the land agent an obligation to take reasonable steps to ascertain the existence of such encumbrances and restrictions and to disclose them to the purchaser.
[33] South Australia, Parliamentary Debates, House of Assembly, 4 October 1973 p 1081.

In an earlier decision of this Court in Astill v South Esplanade Developments Pty Ltd, Bleby and Sulan JJ described the purpose of the relevant provisions of the Act in the following way:[34]
[34] Astill v South Esplanade Developments Pty Ltd [2007] SASC 231, [69]-[70], [81]-[82].
The principal purpose of Part 2 of the Act is to require full disclosure by a vendor of land of facts and matters relevant to or which may impinge upon a purchaser’s decision to enter into or to be bound by a contract to purchase the land at the purchase price specified in the contract.
Central to the operation of Part 2 of the Act is the requirement to serve a vendor’s statement …
The principal purpose of the statement is to provide a statement of the purchaser’s rights under s 5 as well as a great deal of factual information relating to the land.
We repeat what was said in Myles Pearce & Co Pty Ltd v Leuci & Martin of the Act’s predecessor, which is equally applicable to the present Act:
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 [here, s 7(1)] 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.
Parliament and the Governor in Council have determined what information must be supplied to the purchaser, and by inference have determined what information may be material to the purchaser’s decision. Parliament has also made plain by s 91B(1) [here, s 10(1)] that the information in the vendor’s statement must be accurate. In sub-section (2) it has taken the further expedient that where the vendor’s statement has been served before the contract is signed and so the cooling-off period has not yet begun to run, the information must be accurate at the time when the cooling-off period does start to run. 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.
(Citations omitted)
There is no reason to think that these purposes do not apply with equal vigour to the present Act. They emphasise the essential function of the Form 1 in ensuring that a purchaser is furnished with information sufficient to make an informed decision about whether to enter into a contract, and at what price. The Form 1 is quintessentially concerned with consumer protection. This essential legislative purpose is relevant to both cooling-off and sales by public auction, and the availability of a remedy under s 15 of the Act.
It is within the context of this broad disclosure regime that question 2(5) of the Form 1 must be interpreted.[35] Plainly, the Court will favour an interpretation consistent with the evident purposes of the Act.[36] In Plaintiff M47-2012 v Director-General of Security, French CJ observed:[37]
… Generally speaking an Act, which does not provide for its own modification by operation of regulations made under it, is not to be construed by reference to those regulations. That would be a case of the tail wagging the dog. That general principle does not exclude the possibility that a regulatory scheme proposed and explained at the time that Parliament enacted the Act under which the scheme was to be made could constitute material relevant to determination of the statutory purpose …
(Citations omitted)
[35] It is to be noted that other states and territories have introduced mandatory disclosure regimes after South Australia. See, for example, Sale of Land Act 1962 (Vic), s 32, introduced in 1982; Conveyancing Act 1919 (NSW), s 52A, introduced in 1985; Body Corporate and Community Management Act 1997 (Qld), ss 206 and 213 (confined to strata title land), Property Agents and Land Transactions Act 2005 (Tas), s 186.
[36] Acts Interpretation Act 1915 (SA) s 22; South Australia v Lampard-Trevorrow (2010) 106 SASR 331, [207]; F, BV v Magistrates Court of South Australia (2013) 115 SASR 232, [12].
[37] Plaintiff M47-2012 v Director-General of Security (2012) 251 CLR 1, [56].
To do otherwise would be to engage in a “bottom-up” rather than “top-down” process of interpretation.[38] This general rule has been held to apply with greater force when the delegated legislation relied on is made under a different statute to the statute being interpreted.[39] However, if regulations, together with the principal Act, form part of a legislative scheme, one may consider the regulations to ascertain the nature of scheme. As Mason J has explained:[40]
One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is.
[38] Commissioner of Taxation v Macoun (2014) 227 FCR 265, [40] (Perram J).
[39] Director of Consumer Affairs Victoria v Glenwill Pty Ltd [2009] VSC 76, [29]-[30] (Kaye J).
[40] In argument and reproduced in Brayson Motors Pty Ltd (In Liq) v Commissioner of Taxation (Cth) (1985) 156 CLR 651, 652, cited in Master v Education Services Pty Ltd v Ketchell (2008) 236 CLR 101, [19] (The Court).
Whilst the proper meaning of delegated legislation cannot control the meaning of the Act under which it is promulgated, it is entirely orthodox to have regard to the Act, and the regulations, when discerning the scheme of the Act, and thereby the proper meaning of the regulations including, as here, the Form 1.
It is convenient to first address the proper meaning of “environmental assessment” and “of the land or part of the land” before turning to the concept of “aware”, as within the Form 1, the meanings of the former inform the latter. These must each be considered bearing in mind the context that they form part of a broad disclosure regime designed to ensure that a purchaser is provided with information sufficient to make an informed purchase-decision.
The meaning of ‘environmental assessment’
When the concept and question of an “environmental assessment” was first introduced into the Form 1 under the Land and Business (Sale and Conveyancing) Regulations 1995 (SA) (the predecessor Regulations),[41] it was then defined in the following way:
“environmental assessment” means an assessment of the actual, or potential for, contamination of land (including surface or underground waters) …
[41] Introduced by Regulations Under the Land and Business (Sale and Conveyancing) Act 1994 (SA) (No. 155 of 1998) reg 5(b). The question closest to question 2(5)’s current form was 2(1): “Is the vendor aware of any environmental assessment (including any not yet completed) of the land, any part of the land or any industrial facility on the land having been carried out after the vendor acquired an interest in the land? YES/NO”.
It is undoubtedly a broad term. That is evident from the inclusion of the assessment of potential contamination. Significantly, it is not a term defined by reference to legislation such as the EPA. One reason for this breadth may well be due to the evident purpose of ensuring the provision of information which permits consideration and analysis by decision-makers when making an informed purchase decision.
The term is fundamentally concerned with the potential for contamination of the subject land. This is addressed through the medium of an “assessment”, a term which is itself not defined and potentially very broad. The potential meanings of the concept of an “environmental assessment” are, however, ultimately controlled by the context in which it appears, and the evident legislative purpose. Although there is very little judicial consideration of the meaning of the term “environmental assessment” in Australia, what discussion there has been tends to reinforce this point. For example, in Gray v Minister for Planning, Pain J, sitting in the New South Wales Land and Environment Court, in the context of “environmental assessment” preceding development approval, remarked:[42]
… There is no definition of environmental assessment in the EP&A Act so that the meaning of the expression in Pt 3A is undefined. The words should be given their ordinary meaning. In one sense that is what the applicant’s argument seeks to do, however, to argue that “environment”, because so broadly defined in s 4, must be so interpreted in every section in which it appears elevates the definition of “environment” to an objective legal test without any other provision of Pt 3A providing any support for that view. As stated by McColl JA in Cranbrook School v Woollahra Council (2006) 66 NSWLR 379; 146 LGERA 313 at [39] “… the meaning of a definition turns on the context in which it appears, considered as a whole …” …
[42] Gray v Minister for Planning (2006) 152 LGERA 258, [80].
Some nine years after the term was introduced into the Form 1 in 1995, the concept of site contamination and the issues of assessment and remediation came to the forefront of parliamentary legislative deliberations. This led to changes to the EPA, the rationale behind which was explained in the second reading speech for the amending act, namely, the Environment Protection (Site Contamination) Amendment Act 2007 (SA), in this way:[43]
This bill is an important step in the process of managing site contamination in South Australia. Site contamination is a matter of international and national concern that has emerged as a major environmental and land use planning issue in South Australia over the past decade, following a number of cases in the late 1980s and 1990s when development occurred on land where site contamination was subsequently found to exist. These included, for example, a residential development at Bowden being built on former industrial land that was affected by a hazardous chemical and another residential development built on a site of a former tannery which had contaminated the soil with arsenic. In these instances contamination of both the soil and groundwater beneath the sites were potential sources of exposure and health risks for residents.
Unlike the majority of the Australian states and territories, South Australia does not have an effective legislative framework to deal with the assessment and remediation of site contamination with the powers under the Environmental Protection Act 1993 (the act) not extending to contaminating activities that occurred before the commencement of the act on 1 May 1995. Although considered at the time the Environment Protection Bill was developed and introduced into parliament in 1993, site contamination provisions were deferred until such time as a national position on liability was agreed. This occurred in 1994 under Financial Liability for Contaminated Site Remediation prepared by ANZECC (Australia and New Zealand Environment and Conservation Council) and endorsed by the state government in 1994.
As there is no effective legislative or policy framework to deal with the assessment and remediation of site contamination, site contamination is currently managed under the EPA in an administrative manner. Site contamination as defined in the bill exists when chemicals have been added to land above background levels through an activity resulting in an actual or potential impact on human health or the environment, in particular on water. These past activities include industrial, commercial or agricultural practices. While the contaminants deposited may not have an immediate effect on the existing industrial use of the land, a change of land use to, for example, residential, requires any potential site contamination to be identified, assessed and managed to ensure the land is suitable for its intended purpose. As is the case in Australia and other industrialised countries, the demand for land in South Australia—in particular, for residential land in the Adelaide metropolitan area—has led and is leading to the redevelopment of former industrial/ commercial areas and agricultural areas such as market gardens.
…
[43] South Australia, Parliamentary Debates, Legislative Council, 1 May 2007, 41-42 (Gail Gago).
As an ancillary effect, the Regulations were amended to specifically include questions identifying “site contamination” as an issue for potential landowners. The definition of “environmental assessment” was modified accordingly, alongside updated questions (including question 2(5)), as follows:
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;
The term “environmental assessment”, in the context of the Form 1, clearly now encompasses, though it is not limited to, “site contamination”, the assessment of which under the EPA is to be in accordance with the National Environment Protection (Assessment of Site Contamination) Measure 1999 (Cth) (the ASC NEPM). Site contamination assessments may be required under the EPA where site contamination exists, or where it is suspected, due to potentially contaminating activity as prescribed by the Environment Protection Regulations 2009 (SA) (the EP Regulations). The assessment may be triggered by voluntary or non-statutory mechanisms, or by statutory requirements, for example, by a site contamination assessment order under s 103H of the EPA. In the latter case, the EPA may require that the assessment be carried out in accordance with the ASC NEPM.
Speaking generally, under the EPA and the ASC NEPM there are generally three recommended stages: a preliminary investigation, a detailed site investigation and a site-specific risk assessment. Section 8 of the ASC NEPM notes that “[m]any site investigations proceed in multiple stages due to the complexity of the site and the discovery of unexpected contamination, or as investigation funds become available”. Thus, it is not uncommon for a site contamination assessment to proceed in multiple stages, made up of various investigations designed to fit any particular needs and objectives. There is no strict definition as to the exact form that any assessment should take, but rather, Schedule A of the ASC NEPM sets out a flowchart of the three stages mentioned. This general overview of the terms “environmental assessment” and “site contamination” tends to show that, at the very least, in this particular context, investigations often form a part of, and inform, environmental assessments.
Whilst the relevance of “site contamination” under the EPA is clear under part (a) of question 2(5), it is also important to recognise that the concept of an “environmental assessment” extends beyond “site contamination” to “any other contamination of the land by chemical substances” under part (b) of question 2(5). The obligation of disclosure is informed by, but not confined to, the terms and concepts used in the EPA.
Consequently, it may be accepted that an “environmental assessment” as used in Form 1 operates as an umbrella term, potentially encompassing myriad investigations and activities that may or may not be undertaken to determine whether site contamination is present at a site. It might be said that the adoption of a narrow view of what encompasses an “environmental assessment” is contrary to the evident object of the Act which is, essentially, to promote disclosure to a potential purchaser. For example, the term is broader than a “site contamination assessment”, though even that term encompasses various investigations.
It is also important to recognise that the “environmental assessment” contemplated by the Form 1 is not confined to an assessment “of the land” in the sense of an environmental assessment that relates only to that land, let alone to an assessment that involved testing undertaken on that land. As will be seen, it is sufficient that the assessment relates to a risk or suspicion of contamination over an area that encompasses the land, and is in that sense an assessment in relation to that land.
The meaning of “of the land or part of the land”
Evidently, the Form 1 is designed to put purchasers on notice with respect to the land the subject of the sale, setting out, inter alia, any prescribed matters. Regulation 9(c) specifies that the matters in Division 2 of the Schedule of Form 1 (which contains question 2(5)) “are prescribed matters to the extent that they affect, presently or prospectively, title to, or the possession or enjoyment of, the land the subject of the sale”. The Form 1 itself reinforces to the purchaser that “the purpose of a statement under section 7 of the Land and Business (Sale and Conveyancing) Act 1994 is to put you on notice of certain particulars concerning the land to be acquired”. From this, it is clear that the Form 1 is intended to identify matters that have some connection with the land the subject of the sale which it is important for the purchaser to know about.
That is, in context, an “environmental assessment” is directed to determining the existence or nature or extent of site contamination at the land. Site contamination is defined in s 5B by reference to chemical substances present at the site. However the question is not confined to assessments of the land. Under s 3(1) of the EPA, “site” is defined as relating to “an area of land (whether or not in the same ownership or occupation)”. The final line of the definition of “environmental assessment”, that is, that the term includes such an assessment in relation to water on or below the surface of the land”,[44] supports the notion of an assessment extending beyond the land. This is because water below the surface cannot, by its very nature be confined to the land even though it may affect the land.
[44] Emphasis added.
Rather, the inclusion of the phrase “at the land” at the end of limb (a) of the definition of “environmental assessment”, properly construed, suggests that whatever the area covered by the assessment, it is sufficient if the area covered by the assessment encompasses the land. The interpretation of “environmental assessment” as requiring such an assessment pertain exclusively to, or specifically on, the land the subject of the Form 1, is unduly restrictive. It would not promote the purpose of legislation designed to address the need for informed decision-making by prospective purchasers. Indeed, it does not matter where the physical work associated with the assessment occurs. It is sufficient that the assessment is directed towards an assessment of the risk over an area that encompasses or includes the property the subject of the Form 1.
I accept the plaintiffs’ argument that the questions under Item 2 of the Form 1 reveal a different focus. Questions 2(1) to 2(3) are directed towards prescribed activities (defined on the previous page under Item 1(2)), or items kept, at the land, and question 2(4) asks about the sale or transfer of the land. By contrast, question 2(5) concerns an “environmental assessment” of the land, and built into that question is the definition of an environmental assessment which is, as has been seen, broad in reach.
A close reading of question 2(5) shows that the particulars to be produced are not as narrowly directed to the land in question as the trial Judge found. Consistently with this, Item 4 subsection (c) of the Form 1 reinforces this broader approach, asking whether the Environment Protection Authority holds a copy of the report of an environmental assessment “in relation to the land or part of the land”, reiterating that the final assessment need only be ‘in relation to’ the land and not confined to the land.

For the purpose of the Act, and question 2(5), the key concern is whether an “environmental assessment” – commenced or completed – relates to whether there is, or at least the potential for, contamination at the subject land. The subject land need only be part of the area assessed. Consequently, the defendants’ concern that applying the plaintiffs’ wider interpretation of the phrase would mean that prospective vendors may need to disclose any assessments occurring at a local playground or, even more broadly, any playgrounds across the metropolitan area, must be rejected. If only playgrounds were being assessed this need not be disclosed. However, if a playground was being assessed for site contamination as part of the investigation of an area that included the potential vendor’s property, then it ought be disclosed.
To interpret “environmental assessment” in the manner these reasons contemplate does not involve imposing an unworkably broad obligation upon the vendor completing a Form 1. The obligation to disclose is confined to an “environmental assessment” known to the vendor. The vendor is not required to disclose any “environmental assessment” within an area encompassing the vendor’s property about which the vendor is not aware.
A close reading of question 2(5) shows that the particulars to be provided are, contrary to the trial Judge’s ruling, not to be narrowly confined to the land in question.
The meaning of ‘aware’
The Act does not define “aware”. The ordinary meaning of “aware” is to be “informed, cognizant, conscious, sensible”.[45] Awareness, like knowledge, may be actual, constructive or imputed.
[45] Oxford English Dictionary (online at 13 January 2021) ‘aware’ (def 2).
The proper meaning of the term depends upon the context in which it is used. In Deming, a case concerning whether a purchaser had a right to avoid a contract within 30 days of becoming “aware” of a vendor’s failure to give a pre-contractual statement under s 49 of the Building Units and Group Titles Act 1980 (Q.), the High Court divided on whether the purchaser must appreciate that the facts known to the purchaser amounted to a failure to comply with the Act.[46] All members of the Court, however, found in that legislative context that awareness was synonymous with actual knowledge.[47] The parties on the hearing of this appeal proceeded on the same assumption. Given the way in which this case has been conducted, it is neither necessary nor appropriate to determine whether or to what extent constructive or imputed knowledge may be regarded as “awareness” for the purposes of question 2(5) in the Form 1 under the Act.
[46] Deming No. 456 Proprietary Limited v Brisbane Unit Development Corporation Proprietary Limited (1983) 155 CLR 129, 150-151 (Mason, Deane and Dawson JJ), contra 138 (Gibbs CJ) and 164-165 (Wilson J). The majority concluded at 151: “the words “becomes aware of the failure” in s.49(5) involve not only knowledge that a statement containing the specified material has not been given but an awareness that the fact that such a statement was not given constitutes a “failure” to do something which the Act says should be done”.
[47] Although Wilson J was prepared to construe awareness as encompassing both “actual and constructive knowledge”: Deming No. 456 Proprietary Limited v Brisbane Unit Development Corporation Proprietary Limited (1983) 155 CLR 129, 165.
The purpose of the Form 1 is to provide the potential purchaser with information that will inform decision-making. The use of the word “aware”, in the context of question 2(5), suggests that it is not aimed at determining with absolute certainty whether there has been an “environmental assessment” of contamination at the land. Rather the question is whether the vendor knows of an assessment of contamination in a site or area which comprises, or which includes, the land. If so, that is a matter relevant to a purchase decision and ought be disclosed.
Issue 2.2: As a matter of fact, did the Investigation by Defence at and around the RAAF Edinburgh Base apply to question 2(5)?
The question is whether the Investigation falls into subclauses (a) or (b) of the definition of “environmental assessment” in the Form 1. PFAS comprises man-made chemicals known to persist in humans, animals and the environment, though the exact nature and extent of the impact upon them following exposure is presently unknown. The stated objective of the Investigation by Defence was ‘to identify the nature and extent of PFAS in the environment and any risks to human health or ecosystems”.
PFAS are chemical substances that were suspected to be present in the Investigation Area. In addition, there had been what the EPA terms “potentially contaminating activity’” in the Investigation Area, defined by reg 50 of the EP Regulations to include “defence works: operation of military defence establishments (including training areas)” and “fire training areas: operation of premises for fire training involving the use of liquid fuel, fire accelerants, aqueous film forming foam or similar substances”.
Nonetheless, it is not necessary to show that “site contamination” as defined under s 5B of the EPA has been shown to exist – question 2(5) is directed towards assessments, whether commenced or completed, and not the outcome of any such assessment.
Even if the concern about PFAS contamination did not meet the threshold of “site contamination” under subclause (a), it is clear that it would satisfy subclause (b) of the definition of “environmental assessment”, because that extends to any other contamination of the land by chemical substances and this was the focus of the Defence Investigation.
The key question on this appeal is whether the Investigation was an “environmental assessment” for the purpose of the Form 1. Bearing in mind the conclusion that an investigation is one means by which an “environmental assessment” or “site assessment” may be conducted, the Investigation in this case satisfies the definition of an “environmental assessment” for the purposes of Form 1. This is supported by a reading of the materials generated on behalf of Defence for community engagement, a section of which states:
The investigation is a staged assessment program consistent with the National Environment Protection (Assessment of Site Contamination) Measure 1999 (ASC NEPM). This program involves:
·Preliminary Site Investigation
·Detailed Site Investigation and
·Human Health and Ecological Risk Assessment.
At the time of the sale of the Property, and on the evidence, the Investigation had progressed well into the second stage, namely the “Detailed Site Investigation”. This commenced in May 2017 and was completed shortly after the auction in December 2018. The evidence shows that there was a clear strategy, supported by various assessments, to determine the existence, nature and extent of PFAS throughout the Investigation Area, which at all times included the Property. These assessments included the sampling of soil, sediment, concrete, plants, bores and surface water (which the definition of environmental assessment explicitly encompasses) both on and off the RAAF Edinburgh Base. The Investigation was being carried out at the time of the sale of the Property, and when the defendants completed the requisite paperwork for the Form 1. Question 2(5) specifies that the relevant “environmental assessment” need not be completed in order for a requirement to disclose to arise. As the environmental assessment in question was intended to determine the nature and extent of any PFAS contamination, it necessitated the respondents answer question 2(5) in the affirmative.
Whether the “environmental assessment” and the testing this encompassed must be combined to or carried out on the Property before it is disclosed on the Form 1 must be answered in the negative. Given the interpretation of “of the land”, or indeed “part of the land”, so long as the Property formed part of the land being investigated and assessed – which it did at all material times – question 2(5) required that it be disclosed.
Relief under s 15 of the Act
The plaintiffs made it clear on appeal that the only relief they seek under subsection 15(2)(a) of the Act is an order that avoids the contract so as to secure the return of their deposit.
On the findings earlier made, the Form 1 provided to Ms Cheshire was defective, satisfying the qualifying requirement under s 15(1). On the findings of the trial Judge, the plaintiffs were prejudiced, as required under s 15(2). With respect to whether this prejudice must result from the defect, I respectfully accept the trial Judge’s approach as follows:[48]
[48] Cheshire v Jennings [2019] SADC 79, [92]-[106].
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. 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.
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, the Full Court of the Supreme Court of South Australia observed:
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.
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 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.
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.
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.
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.
(Citations omitted)
There must be a causal connection between the defect identified in the Form 1 and the prejudice suffered by the purchasers. The trial Judge accepted on the evidence before him that Ms Richards would not have purchased the house had she known about the environmental assessment concerning feared PFAS contamination in an area which included the Property. The plaintiffs were contractually committed at auction, without an ability to cool-off when, had they known the true facts, they would not have entered a bid at all. There is no discretionary reason why the plaintiffs should be precluded from avoiding the contract or recovering their deposit.
Disposition of appeal
I would make the following orders:
1.The Notice of Alternative Contention is dismissed.
2.The appeal is allowed.
3.The contract between the defendants and the plaintiffs for the sale and purchase of the residential property at 15 Wyatt Road, Direk, South Australia is avoided.
4.The defendants must pay the deposit, together with any entitlement to interest, to the plaintiffs.
I would hear the parties about these and any other consequential orders, including as to costs.