Duskwood Pty Ltd v Bellara Willows Pty Ltd - [2001] WASC 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DUSKWOOD PTY LTD -v- BELLARA WILLOWS PTY LTD & ORS [2001] WASC 26

CORAM: STEYTLER J

HEARD: 1-3, 6-7, 9-10 & 13 NOVEMBER 2000

DELIVERED : 2 FEBRUARY 2001

FILE NO/S: CIV 2310 of 1998

BETWEEN: DUSKWOOD PTY LTD
Plaintiff
AND
BELLARA WILLOWS PTY LTD
First Defendant
COLIN MADDEN
Second Defendant
GOH CHEE KHEN
Third Defendant

FILE NO/S :CIV 1601 of 1999

BETWEEN :DUSKWOOD PTY LTD
Plaintiff
AND
BELLARA WILLOWS PTY LTD
Defendant

Catchwords:

Contract - Contract for sale of land - Trade Practices Act 1974 s 52 - Whether misleading or deceptive conduct of defendant caused loss or damage to plaintiff - Turns on own facts

Contract - Construction and interpretation of contracts - Contract for sale of land - Intention to contract - Whether plaintiff a party to contract - Signature of party - Whether extrinsic evidence admissible in respect of capacity in which party signed - Admissibility of extrinsic evidence generally - Admissibility of pre and post-contractual negotiations - Whether ambiguity exists

Legislation:

Trade Practices Act 1974, s 52

Result:

Plaintiff's claim in each action dismissed

Representation:

CIV 2310 of 1998

Counsel:

Plaintiff:     Mr M H Zilko
First Defendant             :     Mr B R S Kendall QC & Mr B E S Lauri
Second Defendant         :     Mr B R S Kendall QC & Mr B E S Lauri
Third Defendant           :     Mr B R S Kendall QC & Mr B E S Lauri

Solicitors:

Plaintiff:     Shane Brennan
First Defendant             :     Pryles & Defteros
Second Defendant         :     Pryles & Defteros
Third Defendant           :     Pryles & Defteros

CIV 1601 of 1999

Counsel:

Plaintiff: Mr M H Zilko
Defendant: Mr B R S Kendall QC & Mr B E S Lauri

Solicitors:

Plaintiff: Shane Brennan
Defendant: Pryles & Defteros

Case(s) referred to in judgment(s):

Adelaide City Corporation v Altmann (1987) 46 SASR 186
Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101; [2000] WASCA 27
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Bank of New Zealand v Simpson [1900] AC 182
Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647
Barroora Pty Ltd v Provincial Insurance (Aust) Ltd (1992) 26 NSWLR 170
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Danziger v Thompson [1944] KB 654
Dillon v Nash [1950] VLR 293
Drughorn (Fred) Ltd v Rederiaktiebolaget Trans‑Atlantic [1919] AC 203
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Epps v Rothnie [1945] KB 562
Formby Bros v Formby (1910) 102 LT 116
Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) 7 BPR 14,551
Humble v Hunter [1848] 12 QB 310
Macdonald v Longbottom [1859] 1 El & L 977; 120 ER 1177
Meehan v Jones (1982) 149 CLR 571
Protean (Holdings) Ltd (receivers and managers appointed) v American Home Assurance Co (1986) 4 ANZ Insurance Cases 60‑683
Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310
Sir William Gordon‑Cumming v Houldsworth [1910] AC 537
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130
Tern Minerals NL v Kalbara Mining NL (1990) 3 WAR 486
Trustees Executors and Agency Co Ltd v Peters (1960) 102 CLR 537
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429
Wilson v Hart (1817) 7 Taunt 295

Case(s) also cited:

Airways Corp of New Zealand Ltd v Gieyserland Airways Ltd [1996] 1 NZLR 116
Australian Energy Ltd v Lennard Oil NL [1986] 2 QdR 216
B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147
Beckett v Nurse [1948] 1 All ER 81
Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130
Clifton v Palumbo [1944] 2 All ER 497
Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84
Coogee Esplanade Surf Motel Pty Ltd v Commonwealth (1983) 50 ALR 363
Farmer v Honan (1919) 26 CLR 183
Fitzgerald v Masters (1956) 95 CLR 420
Godecke v Kirwan (1973) 129 CLR 629
Gregory v MAB Pty Ltd (1989) 1 WAR 1
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83
Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503
Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68
Marist Brothers Community Inc v Shire of Harvye (1994) 14 WAR 69
Masters v Cameron (1954) 91 CLR 353
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Port Sudan Cotton Co v Govindaswamy Chettiar & Sons [1977] 2 Loyd's Rep 5
Prenn v Simmonds [1971] 1 WLR 1381
Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989
Scammell & Nephew Ltd v Ouston [1941] AC 251
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Ting v Blanche (1993) 118 ALR 543
Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106
Winks v W H Heck & Sons Pty Ltd [1986] 1 QdR 226
York Air Conditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth (1949) 80 CLR 11

STEYTLER J: There are two actions which have been tried together. The first, CIV 2310 of 1998, is one for damages arising out of what was said to be misleading and deceptive conduct in breach of s 52 of the Trade Practices Act 1974. The second, CIV 1601 of 1999, is an action for damages arising out of the alleged repudiation of a contract.
In each case the plaintiff is a company, Duskwood Pty Ltd ("Duskwood"). Duskwood was at all material times the owner of land ("the Duskwood land") in the Frankland River region of Western Australia. That land comprised a number of separate but adjoining titles. Adjoining the Duskwood land was land owned by two related companies, Red Valley Pty Ltd ("Red Valley") and Spring Valley Pty Ltd ("Spring Valley"). Each of Duskwood, Red Valley and Spring Valley had common directors and common shareholders, one of these being Mr Warren Anderson. The land owned by each of Red Valley and Spring Valley (respectively "the Red Valley land" and "the Spring Valley land") comprised separate lots.
Both actions centre around events which took place on 16 January 1998, on which date Duskwood contends that a contract was made between it and Bellara Willows Pty Ltd ("Bellara Willows"), the first defendant in the first action and the only defendant in the second action.

The issues in the first action

Duskwood relies, in the first action, on what it says were a number of misrepresentations made to it by the second defendant, Mr Colin Madden, and the third defendant, Mr Goh Chee Khen, on behalf of Bellara Willows.
Mr Madden is a barrister and solicitor of the Supreme Court of Victoria. He practises as a solicitor with the firm of MacPherson & Kelly. He is a partner in that firm. He is also a director of a company known as RMBL Investments Ltd ("RMBL"). That company is the operator of a managed investment scheme and was previously the trustee of a contributory mortgage scheme. RMBL, as part of its business, received funds on behalf of investors and then, by way of contributory mortgage, advanced those funds to clients of MacPherson & Kelly or to persons introduced to that firm who wished to borrow funds.
Mr Goh, although not a director or shareholder of Bellara Willows (a company owned by his wife), customarily acted as its agent in business dealings.
Duskwood alleges that on 16 January 1998 Messrs Madden and Goh, on behalf of Bellara Willows, made three oral representations to Mr Anderson in his capacity as a director of Duskwood. These are said to have been made in a context in which each of Red Valley, Spring Valley and Duskwood had offered to sell to Bellara Willows the Red Valley land, the Spring Valley land and the Duskwood land respectively (together "the Rocky Gully land"). Their offers had been made upon terms such that the price payable for both the Red Valley land and the Spring Valley land was $15 million and that payable for the Duskwood land was $10 million. The three representations relied upon are pleaded (par 5 of the statement of claim) to have been that:
(a)Bellara Willows wished to buy the whole of the Rocky Gully land;
(b)it would suit Bellara Willows' financial arrangements to decrease the price for the Red Valley land and the Spring Valley land from $15 million to $14 million and to increase the price of the Duskwood land from $10 million to $11 million; and
(c)as Duskwood, Red Valley and Spring Valley would ultimately receive the same total consideration of $25 million for the three parcels of land if the prices were adjusted in the way described, Duskwood had nothing to lose by agreeing to the proposed price adjustments.
Duskwood has next pleaded (pars 6 and 7 of its statement of claim) that, induced by these representations and acting in reliance upon them, Mr Anderson, acting on behalf of Duskwood, Red Valley and Spring Valley, orally agreed to adjust the price in the way sought by Bellara Willows and, later on 16 January 1998, Red Valley, Spring Valley, Duskwood and Bellara Willows executed a written agreement accordingly.
Duskwood has then pleaded that the representations were false "in that although ... [Bellara Willows] has purchased the Red Valley land and the Spring Valley land for $14,000,000 and settlement of the sale thereof has been completed, ... [Bellara Willows] has failed and refused to complete the sale of the Duskwood land for $11,000,000 or at all". It alleges (pars 9 and 10) that the representations were made in trade and commerce and amounted to misleading or deceptive conduct in breach of s 52 of the Trade Practices Act. It contends (par 11) that, insofar as the representations were made with respect to future matters, Bellara Willows had no reasonable grounds for making them. It relies, in this respect, upon s 51A of the Act. Each of Mr Madden and Mr Goh is said to have aided and abetted, or to have been knowingly concerned in, Bellara Willows' contravention of s 52 of the Act, in breach of s 75B of the Trade Practices Act.
Finally, in par 13 of the statement of claim, Duskwood has pleaded that it has suffered loss and damage. Its loss and damage is particularised as follows:
"The plaintiff has lost the difference between the amount for which the Red Valley land and the Spring Valley land could have been sold prior to the representations and the amount for which they were sold as a consequence of the representations, namely, $1 million."
The defendants in the first action admit that on 16 January 1998 Mr Madden and Mr Goh, on behalf of Bellara Willows, orally represented to Mr Anderson that Bellara Willows wished to buy the Rocky Gully land. However they say that it was made plain by them that this was provided that terms for the purchases of those properties acceptable to Bellara Willows could be agreed. They deny that the other alleged representations were made. They admit that Bellara Willows has completed the purchase of the Red Valley land and the Spring Valley land for a total sum of $14 million. They also admit that it has not purchased the Duskwood land but they deny that it has entered into any contract to do so. They also deny, in any event, that Duskwood has suffered any loss as a consequence of the matters alleged.

The issues in the second action

In the second action Duskwood pleads (par 2 of its statement of claim) that, by the written agreement made on 16 January 1998 between it and Bellara Willows, it was agreed that Duskwood would sell and Bellara Willows would buy the Duskwood land.
It pleads (par 3 of the statement of claim) that the following were express terms of the agreement:
"(i)In the event that a prior sale of the [Duskwood] land to one, Ton Lauwers, did not proceed, ... [Bellara Willows] would enter into a separate contract to purchase the land;
(ii)The purchase price would be $11,000,000 with $2,000,000 payable 30 days after executing the contract and the balance payable on 15 November 1998;
(iii)... [Duskwood] would give vacant possession of the land to ... [Bellara Willows] on settlement."
Duskwood next pleads (par 4 of the statement of claim) that it was an implied term of the written agreement that in order to "complete the contract referred to in paragraph 3(i) above, a registrable transfer would be executed by the parties or their duly authorised representatives within a reasonable time prior to 15 November 1998". It alleges (pars 5, 6, 7 and 8 of the statement of claim) that the "prior sale" of the Duskwood land did not proceed and that Bellara Willows was notified accordingly on 18 February 1998 and again on 10 November 1998. However it says that, despite this, and despite various written requests made on behalf of Duskwood, Bellara Willows refused to take any step towards the completion of the purchase of the Duskwood land and instead denied that any agreement for the purchase of that land existed. This, Duskwood contends, amounted to a repudiation of the agreement which it accepted by letter dated 7 May 1999.
Duskwood claims to have suffered loss and damage accordingly. It pleads, in this respect, that it has since sold part of the Duskwood land to a company known as Australian Plantation Timber Limited for $8,400,000 and that the balance of the Duskwood land is worth only $800,000 with the consequence that it has suffered a total loss of $1,800,000 and interest (par 11 of the statement of claim).
Bellara Willows denies that any agreement was made on 16 January 1998. It says that, while a document was prepared and signed on that day, that document was "merely a framework for the negotiation of contracts" (par 2 of the defence). It pleads in the alternative that, if the document did comprise an agreement, Duskwood was not a party to it and that the agreement was made only between Bellara Willows, on the one hand, and Spring Valley and Red Valley on the other.
It also pleads (pars 3.4 and 3.5 of the defence) that, if there was an agreement by which it agreed to purchase the Duskwood land, that agreement contained implied conditions precedent to the effect that the obligation to purchase that land took effect only if the prior sale of that land to Mr Lauwers should fall away at a reasonable time prior to 16 October 1998 (settlement under the agreement having been fixed for 15 November 1998) and if Bellara Willows should be notified accordingly at a reasonable time prior to 16 October 1998. Bellara Willows pleads that it first received notification that the sale of the land to Mr Lauwers was no longer proceeding on 10 November 1998. It consequently denies that there has been any repudiation on its part and that Duskwood is entitled to any damages.

Events leading up to 16 January 1998

Before turning to consider what took place on 16 January 1998 I should say something about events which occurred prior to that date.
The evidence led at the trial established that Mr Anderson, in his capacity as a director and shareholder of each of Red Valley, Spring Valley and Duskwood, was under pressure to sell the land owned by each of those companies in order to repay debts, secured by the Rocky Gully land, owed to a company known as Regal Investments Pty Ltd ("Regal Investments"). He had consequently approached a real estate agent, Mr Colin King, to find a buyer or buyers for the land.
Mr King had in turn approached a former client of his, Mr Antonius (or "Ton") Lauwers. Mr Lauwers was a director of a company known as Hillsfield Pty Ltd ("Hillsfield"). Hillsfield was interested in acquiring the Rocky Gully land. On 12 October 1997 Hillsfield presented to Mr Anderson, on behalf of the intending vendors of that land, offers to purchase it for a total consideration of $29,400,000, albeit that consideration comprised, in part, properties owned by Hillsfield at York and Toodyay in Western Australia. The offers were made conditional upon Hillsfield's ability to secure finance in respect of the balance of the purchase price.
In fact Hillsfield was unable to raise the necessary finance and Mr King looked for another buyer. In or about early January 1998 he approached Mr Goh, who was also a client of his, in respect of the Rocky Gully land. Mr Goh expressed interest in acquiring that land and was consequently provided with material in respect of it by Mr King. That material, which was sent to Mr Goh on about 11 or 12 January 1998, disclosed that Mr Anderson, on behalf of the intending vendors of the Rocky Gully land, sought to achieve a total purchase price of $25 million, comprising $7,500,000 for the Red Valley land, $7,500,000 for the Spring Valley land and $10 million for the Duskwood land. It also described the proposed sale of the Red Valley and Spring Valley land as "Transaction one" and that of the Duskwood land as "Transaction two". The material also appeared to contemplate that "Transaction two" involved a sale to Hillsfield because it showed that part of the $10 million consideration was to comprise "Toodyay Property", being a reference to property owned by Hillsfield.
Then, at about the same time, Mr King telephoned Mr Lauwers (whose evidence I accept in this respect) and told him that Mr Goh (who had formerly been a partner of Mr Lauwers in a business conducted in Malaysia) was interested in purchasing the whole of the Rocky Gully land for $25 million. However, Mr Lauwers said, and I accept, that Mr King told him that Hillsfield could still make an offer to buy the Duskwood land for a price of $10 million on condition that Duskwood accepted, as part of the consideration, the land owned by Hillsfield at Toodyay and York. Mr King told him that Mr Goh might, in that event, be interested in purchasing the Spring Valley and the Red Valley land for $15 million, thereby giving to the vendor companies the total consideration of $25 million required by Mr Anderson. Hillsfield consequently executed an offer in writing accordingly on 14 January 1998. The offer recorded that the "contract" was "to be settled simultaneously with the Spring Valley and Red Valley Contract for [$]15m". The offer was accepted by Duskwood on the same day.
On 12 January 1998, before Hillsfield had executed this offer in writing and notwithstanding that Mr Goh had by then done no more, on behalf of Bellara Willows, than express interest in acquiring the Rocky Gully land, or at least that part of it comprising the Spring Valley and Red Valley land (and he had said that he would travel to Western Australia to inspect it), Mr King wrote to Mr Anderson saying that he had "two purchasers arriving on Wednesday 14th January, 1998" and that he had "an agreement in principle for the purchase of the whole property under the following terms and conditions". He then set out the two transactions in the same way as he had done in the materials which he had sent to Mr Goh.
Shortly after speaking to Mr King about the possible acquisition of the Rocky Gully properties Mr Goh submitted what was described as a "loan proposal" to RMBL. By that document Bellara Willows sought to acquire a loan from RMBL in order to fund the possible acquisition of the Red Valley and Spring Valley land. The first page of the document referred to each of those properties and set out, inter alia, the values thereof as stated by "T J Hooker [sic]", the price offered by Mr Lauwers and the "Final Price Offered by Dato' Jerry Goh", said to be $7 million for each of the two properties. The amount of the loan sought by Bellara Willows was $8.5 million.
Page 2 of that document records that Mr Lauwers had been "unable to raise the necessary loan to transact the whole deal but is still interested to purchase any one of the ... [Red Valley, Spring Valley and Duskwood] properties". It also records that:
"Dato' Jerry Goh came into the picture because [he and] Mr Ton Lauwers were business partners in Malaysia. The deal is packaged as a whole but to be split into two blocks of properties i.e. (i) Ton Lauwers (ii) Dato' Jerry Goh.
Of the three properties, Dato' Jerry Goh chose (i) Red Valley, (ii) Spring Valley and renegotiate [sic] the price down from AUD 17.0 Million to AUD 14.0 Million."

There is a further page of that document which sets out proposed conditions for the purchase of the Red Valley and Spring Valley land. These include a proposed condition as follows:
"The above Offer & Acceptance is subject to Mr Ton Lauwers buying ... [the Duskwood land] for AUD 11.0 Million ...
The option to Ton Lauwers is valid for 1 month until 16th February, 1998. Should Ton be unable to take up [sic], then Dato' Jerry is to take it up and sign a new agreement for Dustwood [sic]."
Mr Goh said that he believed that this page may have been prepared later and not included within the original "loan proposal" document sent to RMBL. This seems probable as Hillsfield had not then made any offer to purchase the Duskwood land for $11 million and, indeed, it is not apparent from the evidence that Hillsfield had, at the date of first preparation of the "loan proposal", made any offer at all to purchase that land only or, if he had, that Mr Goh was aware of this.
On the evening of 14 January 1998 Mr Goh, accompanied by Mr Madden (who, Mr Goh said, accompanied him in his capacity as solicitor for Bellara Willows and also in his capacity as a director of RMBL) and Mr Surinder Gurdial, a solicitor employed by MacPherson & Kelly and one of RMBL's managers, travelled to Perth.
On the following day, 15 January 1998, Mr King took Messrs Goh, Madden and Gurdial to inspect the Spring Valley land and the Red Valley land. There was some conflict in the evidence as to whether or not an inspection was made, also, of the Duskwood land. However the evidence disclosed that Mr King took the three men to a homestead on the Duskwood land, occupied by Mr Anderson's sister, where they were given lunch. The evidence also established that, in order for Mr King to take the three men to the homestead and to show them the Red Valley and the Spring Valley land, it was necessary for him to drive along roads which enabled his passengers to see some 60 per cent of the Duskwood land.

Events on 16 January 1998

On 16 January 1998 Mr King met with Messrs Goh, Madden and Gurdial at his home at The Vines, a suburb of Perth. There is some dispute as to the manner in which the three men got to his home and as to the time at which they arrived there. However nothing much seems to me to turn upon this.
At some time during the day Mr Anderson joined the others at Mr King's home. He says that he did so at about noon on 16 January and that he remained there until about 4.30 pm when he took Mr Madden to the airport. He is supported in this by Mr King. However each of Messrs Goh, Madden and Gurdial said that Mr Anderson only arrived there, or made his presence known to them, in the late afternoon, a relatively short time before he took Mr Madden to the airport. Insofar as this difference has any significance it relates to the extent to which Mr Anderson participated in negotiations for the sale of the properties to which I have referred. He said, in effect, that he was heavily involved in those negotiations. However Messrs Goh, Madden and Gurdial said that he arrived only after agreement in principle had been reached and that he was present for only some 30 minutes or so.
Whatever may have been the extent of Mr Anderson's participation (I will return to this below), the evidence established that relatively lengthy negotiations (spanning some hours) took place on 16 January between the representatives of Bellara Willows, on the one hand, and Mr King on behalf of Duskwood, on the other.
The evidence also established that, in the course of these negotiations, Mr Madden prepared a handwritten document summarising the points upon which Bellara Willows sought agreement. This document was shown to Mr King, as he acknowledged in evidence. The document was later on that day substantially reproduced in a typewritten form (although Mr King could not recall seeing the typewritten document) before being further amended so as to give it the form of the two page document relied upon by Duskwood as being the agreement made on 16 January 1998.
Because of the importance of this two page document I should set out its terms in full. It reads as follows:
"16^th January 1998
1)Agreed purchase price of $14,000,000.00 for
(a)Red Valley
(b)Spring Valley
2)Purchaser is Bellara Willows Pty Ltd ACN 081 255 110
3)Purchase price payable as follows:
(a)Deposit of $2,000,000.00 payable in 14 days from signing of contracts
(b)Settlement date 1^st March 1998
(c)At settlement purchaser takes a transfer of land of both properties
And:
1)pays the Vendor $3,000,000.00 (total of $5,000,000.00)
2)transfer to Vendor two properties at York (value $3,900,000.00)
3)grants to vendor 2^nd mortgage for the balance owing secured over Red Valley and Spring Valley. Interest on the second mortgage will be 9% per annum payable on final settlement.
(d)A 1^st mortgage of $6,500,000.00, maximum, will be granted by Purchaser over Red Valley and Spring Valley.
(e)Purchaser needs 14 days to obtain finance approval (note finance is approved but draw‑down is conditional upon acceptance of sworn valuation. Purchase financier needs 14 days to obtain written sworn valuation for the two properties for the mortgage),
(f)Separate contracts for each of the individual titles for Red Valley and Spring Valley.
(g)In the event that Duskwood sale to Ton Lauwers does not proceed Purchaser will enter into a separate contract to purchase this property. Purchase price of $11,000,000.00, with $2,000,000.00 payable on thirty days after signing and balance payable in [sic] November 15^th, 1998, with vacant possession on settlement.
(h)Any sales prior to final settlement shall be apportioned 55% to 1^st Mortgagee and 45% to Second Mortgagee.
(i)In the event of subject property being revalued upwards prior to settlement, that enables the 1^st mortgagee to maintain a 55% lending ratio shall entitle the 2^nd mortgagee to receive the full proceeds of any sales up to the ratio of 55% lending.
...........................................  .............................................
COLIN MADDEN  WARREN ANDERSON
MACHERSON [SIC] & KELLEY               AUTHORISED EPRESENTATIVE [SIC]
SOLICITOR FOR THE PURCHASER         FOR AND ON BEHALF OF
  SPRING VALLEY PTY LTD
  RED VALLEY PTY LTD"
Each of Mr Madden and Mr Anderson signed the document where indicated.
There is a good deal of dispute as regards what was said and done in the course of the negotiations leading up to the signing of that document.
Mr Anderson, who is supported in this respect by Mr King, said that he was telephoned by Mr King on the morning of 16 January 1998 and that he was asked to drive to the latter's home office at The Vines where the prospective purchasers were waiting to propose a deal to him.
He says that he arrived there at about noon and that, after a brief exchange of pleasantries, he explained to Messrs Goh and Madden (and he took Mr Madden to be a financier but was unaware that he was also a solicitor) that he wished to sell the Rocky Gully land for a total of $25 million but that he had already signed a contract with Mr Lauwers to sell him the Duskwood land for $10 million conditional upon the Spring Valley and Red Valley land being sold for a total of $15 million.
Mr Anderson said that Mr Madden said words to the effect that Bellara Willows was interested in all three locations but was prepared to offer $14 million in total for the Spring Valley and Red Valley land. He said that he responded by saying that this would leave him $1 million short on the total purchase price that he required. Mr Anderson said that Mr Madden then said words to the effect that Mr Lauwers could increase his price to $11 million and that, if he did not do so, Bellara Willows would buy the Duskwood land for that sum.
Mr Anderson said that there was then some discussion in this respect between him and Mr King and that he thereafter turned to Mr Goh and told him that if the deal with Mr Lauwers did not settle at $11 million Mr Goh would "have to buy ... [the Duskwood land] at that price and commit now". Mr Anderson said that he was uneasy at the time because Mr Madden had at no time explained why the purchase price for the Spring Valley and Red Valley land should be decreased and that for the Duskwood land increased. He said that Mr Madden said only that this would "suit ... [Mr Goh's] company arrangements" and that this would mean that Mr Anderson would still get his $25 million for the land and consequently had nothing to lose by the deal.
Mr Anderson said that there were various other discussions in relation to land proposed by Bellara Willows to be used as part of the purchase consideration and in respect of other ancillary matters. Agreement was ultimately reached, he said, and Mr King offered to write up that agreement on a standard form contract document but Mr Madden replied that there was insufficient time for this (he had to catch a flight to Melbourne) and that he would prefer that he and Mr Gurdial use Mr King's word processor to prepare the agreement. Mr Anderson said that Mr Gurdial then typed up the document in accordance with Mr Madden's dictation, that he and Mr Goh read the typewritten document and agreed that it reflected what they wanted and that he and Mr Madden then signed it.
Mr King's evidence was broadly in accord with that of Mr Anderson.
However the evidence of Messrs Goh, Madden and Gurdial was to very different effect. Each of them said that all negotiations leading up to the preparation of the typewritten document ultimately signed by Mr Madden and Mr Anderson took place between them and Mr King. They said also that Mr King disappeared, from time to time, into his office where he apparently made telephone calls to one or both of Mr Anderson and Mr Umberto Gianotti, a practising solicitor who was also a director of Duskwood. They contend that it was always made plain by them to Mr King, in the course of the negotiations, that Bellara Willows, while interested in purchasing the Duskwood property, could not immediately commit to doing so as it was unable to finance the acquisition of the Duskwood land by any means other than the sale of part of the Red Valley and Spring Valley land which it proposed to acquire.
They say that they pointed out that RMBL was to provide finance to Bellara Willows against the security of a mortgage over the Red Valley and Spring Valley land and was unwilling to lend more than about $6,500,000 to Bellara Willows to finance its acquisition of those two properties, having regard for RMBL's policy that it would not lend, in the case of vacant land or unimproved rural properties, a sum greater than 50 per cent of the value of that land and, in the case of improved rural properties with housing, shedding and yards, a sum greater than 55 per cent of the value of that land. They also said that there was some discussion about the fact that the land proposed to make up part of the purchase consideration for the Spring Valley and Red Valley land was owned by a company, of which Mr Goh's wife was a director and in which she was a shareholder, called Sky High Corporation. Mr Goh was authorised to represent Sky High Corporation.
The three men also said that they were told by Mr King that Duskwood had been sold to Mr Lauwers for a sum of $11 million and that that sale was very likely to proceed although it was conditional on Mr Lauwers being able to obtain finance.
Each of Mr Goh, Mr Madden and Mr Gurdial also said that negotiations had been commenced, on 16 January, at a figure of $13,500,000 as the price which Bellara Willows was prepared to pay for the purchase of the Red Valley and Spring Valley land and that at no time did Mr Goh, or anyone else on behalf of Bellara Willows, ever offer to pay $15 million for that land. Rather, each said, Mr Goh only ever indicated a preparedness on the part of Bellara Willows to go to a maximum amount of $14 million.
Each of the three men also said, as I have earlier foreshadowed, that Mr Anderson only arrived at Mr King's home, or made his presence there known, at about 4.00 pm, by which time the typewritten draft had taken its final form and agreement in principle had been reached by those who had had the conduct of the negotiations. They said that they were told by Mr King that the typewritten draft (or "summary" as they chose to call it) had been faxed to Messrs Anderson and Gianotti and that there had been extensive discussions between Mr King, Mr Anderson and Mr Gianotti in respect of what had there been set out.
They said that when Mr Anderson appeared he had a private discussion with Mr King and then expressed a desire, conveyed to them by Mr King, that he wished to vary the summary. When they refused to do so Mr Anderson agreed to sign the document and it was subsequently executed.
I prefer the evidence of Messrs Goh, Madden and Gurdial as regards the time of Mr Anderson's arrival, or perhaps that at which he made his presence known to the three men, and as regards the limited role which he played in discussions on 16 January 1998, to that of Messrs Anderson and King. Each of Messrs Goh, Madden and Gurdial was quite certain of his recollection in this respect. Importantly, their recollection is supported by the fact that Mr Anderson, in his evidence, spoke only of seeing the document which was ultimately signed by him and Mr Madden. I have already mentioned that he said in evidence that, when agreement was reached, Mr King offered to write it up on a standard form contract document but that Mr Madden preferred to have the document typed up on Mr King's word processor and that it was then typed up by Mr Gurdial in accordance with Mr Madden's dictation.
However there is no doubt that that document was preceded by the handwritten draft spoken of by Messrs Goh, Madden and Gurdial and produced in evidence. I have said above that Mr King acknowledged having seen that document in the course of negotiations. I accept also that that document was thereafter typed up in the form of a second draft before the document was ultimately amended to give it its present form. If, as he said, Mr Anderson was involved in lengthy negotiations then it seems very probable that he would have seen at least the second draft. However he said nothing of this and his evidence that he saw Mr Madden dictate, apparently for the first time, a document typed up by Mr Gurdial does not rest easily with the existence of the second draft of that document.
It is, I think, also instructive to compare the three documents.
The handwritten draft records that the "full purchase price" for Red Valley and Spring Valley is to be $13,500,000 and then sets out, in sub‑paragraphs (a) to (f), various proposed terms which bear upon the sale of the Red Valley and Spring Valley land. Sub‑paragraph (g) then reads:
"In the event that Dustwood [sic] sale to Ton Lauwers does not proceed will enter into a separate contract to purchase this property. Purchase Price $11m, with 10% payable on signing + balance on December 15, 1998, vacant possession with settlement."
The second draft, unlike the first, bears the date 16 January 1998 and contains a provision for signing by each of the parties. That for the purchaser reads:
"COLIN MADDEN
MACPHERSON & KELLEY
SOLICITOR FOR THE PURCHASER"
That for the vendor reads:
"WARREN ANDERSON
VENDOR"
The second draft records that there is an "Agreed purchase price of $13,500,000.00" for the Red Valley and Spring Valley land and, by a new cl 2, that the purchaser is to be Bellara Willows. The document is otherwise in similar terms to the handwritten draft save that the second draft records, which the handwritten draft does not, that "drawdown" of finance to be obtained by the purchaser "is conditional upon acceptance of sworn valuation".
The second draft has on it a number of handwritten notes. There is written, adjacent to the statement of the agreed purchase price of $13,500,000, the figure "$14m". Against the notation that the settlement date in respect of the purchase of the Red Valley and Spring Valley land is to be 1 March 1998 there appears a handwritten date "15/2/98". Where the document records that interest is to be payable on a second mortgage at the rate of 8 per cent per annum there is a handwritten notation "9%". Adjacent to sub‑par (d), which records that a first mortgage of $7,500,000 maximum will be granted by the purchaser over the Red Valley and the Spring Valley land, there is the notation "wants $5m". Adjacent to sub‑par (e), which refers to the need, inter alia, for a sworn valuation, there appears the figure "$11m" and the words "may value". Finally, in sub‑par (g), there is a line leading to the phrase "10%" at the other end of which appears the figure "$2m". Also, the word "December" is crossed out and substituted by the handwritten word "November".
The changes which have been made to the final document, as compared with the second draft, are that:
(a)The purchase price for the Red Valley and Spring Valley land is, as I have earlier mentioned, $14 million rather than the figure of $13.5 million.
(b)Interest on the second mortgage is expressed to be 9 per cent per annum rather than 8 per cent per annum.
(c)The first mortgage is expressed to be one "of $6,500,000.00, maximum" rather than the figure of $7.5 million earlier mentioned.
(d)Sub‑paragraph (g) has been amended by the deletion of the reference to "10% payable on signing" and the substitution therefor of the phrase "$2,000,000.00 payable on thirty days after signing" and also by the substitution of the month "November" for "December".
(e)New paragraphs (h) and (i) have been added as is apparent from the full terms of the document which I have earlier quoted.
(f)Finally, the signature clauses have been amended to take the form shown in the document which I have earlier quoted.
There are some other changes which do not alter the effect of the document as, for example, the change from a somewhat informal reference to "Warren", in par 3(c) of the second draft, to the more formal, and correct, reference to "the Vendor" in the final version.
It will be apparent from this comparison that, by the time of the preparation of the second draft, much of what was there set out had already been agreed but that there were ongoing negotiations about the price payable for the Red Valley and Spring Valley land, the settlement date, the amount of interest payable on the second mortgage, the maximum amount of the first mortgage, the amount of the deposit payable in respect of the purchase of the Duskwood land and the date upon which the balance of the purchase price payable in respect of that land was to be paid. There appears also to have been some discussion, after the preparation of the second draft of the document, as to the manner in which sales of parts of the land prior to final settlement would be dealt with and what would happen if the property was to be "revalued upwards" prior to settlement. Finally, there was obviously a decision to change the signature clauses in the manner to which I have referred above. I am prepared, in this respect, to find that this was one of a number of changes suggested either by Mr King who must, I think, have seen the prior typewritten draft, albeit he remembered only seeing the handwritten version, or by Mr Anderson. While recollections differed, as I have said, as regards the time of Mr Anderson's arrival, and whether he did or did not play any part in negotiating the final form of the 16 January document, it seems to me to be very probable, on the whole of the evidence (and there was no real suggestion to the contrary), that the changes between the first typewritten draft of that document and the final version thereof were made at the request of either Mr King or Mr Anderson. The change to the signature clauses was, as I have also said, one of these.

Events subsequent to the signing of the 16 January document

Before dealing with the issues which arise in the two actions in regard to events on 16 January 1998 I should say something about events which occurred after that day as these are said by each of the parties to shed light on the question of whether there was, on 16 January, any intention to enter into a binding contract.
The first of these is that, on 18 January 1998, Mr Goh signed and dated an authority, in favour of Mr King, to sell the Red Valley, Spring Valley and Duskwood land. Mr King had given him two typewritten documents. The first contained proposed sale prices for each of the lots comprising the Red Valley, Spring Valley and Duskwood land. The top of the page bears the handwritten notation "As a whole". The second comprises a schedule of "Reselling Prices Proposed by ... " Mr Goh. The top of that page bears the notation "Piecemeal". In each case there appears, at the foot of the page, the following notation, which was signed and dated by Mr Goh:
"I GOH CHEE KHEN authorise Colin King to sell the above properties once the offer becomes unconditional."
The second event is that in January 1998 a licensed valuer, Mr Ron O'Connor, was commissioned by Mr Tom Degnan, a solicitor in the employ of MacPherson & Kelley, to prepare, on behalf of Bellara Willows, a valuation of each of the Spring Valley, Red Valley and Duskwood land. While Mr Degnan and, for that matter, Mr Madden and Mr Goh, denied that Mr O'Connor had ever been instructed to value the Duskwood land on behalf of Bellara Willows I am unable to accept their evidence in that respect. Mr O'Connor said in evidence that he was asked by Mr Degnan to value all three properties. It is common cause that Mr O'Connor in fact provided MacPherson & Kelley with valuations of all three properties. He had said, in a letter dated 29 January 1998 addressed to Mr Degnan, that a report on the Duskwood land was then being completed. No attempt was thereafter made to stop the completion of that report. In his letter dated 30 January 1998, by which he enclosed the valuations, Mr O'Connor thanked Mr Degnan for his instructions to undertake a valuation of each of the three properties. Moreover the invoice which was enclosed by that letter specifically recorded that it was rendered in respect of all three valuations. While Mr Degnan said that he made no objection to this because the sum of $5,000 invoiced was that which he had originally been quoted in respect only of the Red Valley and Spring Valley land, and while Mr Madden said that he was content with that state of affairs because the Duskwood valuation comprised "information that was very useful", I am unable, in the light of all of the other evidence, including the oral evidence of Mr O'Connor, to accept their evidence in that regard.
The third event is that on 3 February 1998 Duskwood, by Mr King, submitted to MacPherson & Kelley, on behalf of Bellara Willows, a form of offer and acceptance relating to the Duskwood land. This specified a purchase price of $11 million with a deposit of $2 million being payable within 28 days of the satisfaction of "condition 4", being a condition to the effect that the land should not be "sold to a third party by the 1st March, 1998". The settlement date, too, was said to be within 28 days of satisfaction of "condition 4". By cl 5 the vendor agreed to grant to the purchaser a first mortgage securing the sum of $9 million "interest free from settlement until 15th Nov[ember], 1998". Vacant possession was, by cl 6, to be given "on the later of settlement date or the payment of the $9,000,000". This document was never executed by Bellara Willows.
Next, on 17 February 1998, Bellara Willows, Red Valley and Spring Valley executed a formal offer and acceptance in respect of the sale of the Red Valley and Spring Valley land to Bellara Willows for a price of $14 million, providing for a deposit of $1,890,000 payable on signing, payment of $3,110,000 on the settlement date (2 March 1998), $3,900,000 to be paid by way of properties to be transferred to Red Valley and Spring Valley by Bellara Willows and $5,100,000 to be financed by the vendors, subject to the provision of a second mortgage providing for interest at the rate of 9 per cent per annum, which sum was to be repaid on 15 November 1998.
Then, on the following day, an exchange took place between Mr Lauwers, on behalf of Hillsfield, and Mr Goh, on behalf of Bellara Willows, following up on what Mr Lauwers said (and I accept his evidence in this respect) was a proposal by Mr Goh for Bellara Willows to acquire a percentage interest in Hillsfield which still then proposed to buy the Duskwood land. Nothing came of this.
It later became apparent to Mr Lauwers that Hillsfield was unable to raise the finance necessary for it to acquire the Duskwood land. He informed Mr King of this on 23 March 1998. Mr King in turn informed Mr Madden of this on, or shortly after, that date. On about the same day Mr Gianotti faxed to Mr Madden's home a form of offer and acceptance relating to the Duskwood land which Mr Gianotti had drawn up. That document referred to a purchase price of $11 million with a deposit of $2 million being payable on 6 April 1998, the proposed settlement date. Special condition 4 thereof provided that:
"The Vendor agrees to grant the Purchaser a first mortgage for the sum of $9,000,000 (the sum) upon the following terms:
(i)Interest at 9% per annum calculated on monthly rests and payable by one payment on 15th November 1998.
(ii)The Purchaser will execute a first mortgage as prepared by the Vendor's Solicitors. All costs, including stamp duty payable by the Purchaser.
(iii)The first mortgage will be registered at settlement date.
(iv)The sum will be repaid on 15th November 1998.
(v)The first mortgage will have terms including the right to make full or partial reductions without penalty prior to the 15th November 1998."
The document also recorded that vacant possession would be granted to Bellara Willows on 15 November 1998.
On the following day, on 24 March 1998, Mr Madden sent to Mr Gianotti a fax complaining about the fact that Red Valley and Spring Valley had not then settled the purchase, by Bellara Willows, of the Red Valley and Spring Valley land. The fax went on to say:
"We formally confirm that our client is ready, willing and able to settle the matter this day. We further confirm that we have instructions to attend on you on Monday, March 30 1998 for the purpose of negotiating the terms of any purchase by our client of the farm known as Duskwood. The terms of that purchase have not yet been settled.
These transactions are unrelated. More particularly there is no reference to the purchase of Duskwood in the Contract of Sale for the purchase of Spring Valley and Red Valley.
Notwithstanding this our client is prepared by virtue of a meeting on Monday of next week to attempt to resolve any outstanding issues concerning the terms of Contract for the purchase of Duskwood including whether that purchase would be by way of a joint venture or simply by our client. These are matters yet to be resolved."
This fax was written in circumstances in which, it seems, Mr Anderson had refused to settle the Red Valley and Spring Valley transactions unless a formal contract was entered into for the sale of the Duskwood land to Bellara Willows.
Further exchanges took place between Mr Lauwers and Mr Goh in April 1998. These reflect that Bellara Willows and Hillsfield were contemplating the possible joint acquisition of the Duskwood land. However, once again, nothing came of this. In this case, too, Mr Lauwers said (and I accept) that the proposal for the joint purchase originated with Mr Goh.
In April 1998 exchanges took place between Mr King, on the one hand, and Messrs Goh and Madden on behalf of Bellara Willows, on the other, in respect of the possible sale of the Duskwood land to a Mr Dominic Casella. I am satisfied, although neither Mr Goh nor Mr Madden was prepared unequivocally to accept this, that these occurred upon the basis that, if a sale of the Duskwood land to Mr Casella was to eventuate, it would be one by Bellara Willows. Indeed, Bellara Willows had gone so far as to procure a valuation of land owned by Mr Casella which was to form part of the purchase consideration. However, once again, nothing came of this.
Then, on 6 May 1998, Mr Goh, who had, as I have earlier mentioned, been provided with suggested selling prices in respect of the Red Valley, Spring Valley and Duskwood land, sent to Mr King a fax in which he said that he had adjusted the selling prices of the Red Valley and Spring Valley land so as to make them consistent with those in respect of the Duskwood land and asked Mr King to ensure that Mr King's sales representatives were told of this.
I should add that Mr King said in evidence (and I accept his evidence in this respect) that, during 1988 (but after 16 January), he had about six telephone conversations with Mr Madden, on behalf of Bellara Willows, in the course of which Mr Madden encouraged him to sell allotments of the Duskwood land. He said (and I accept) that he asked Mr Madden, "Who's going to accept any offers?" and that Mr Madden said, in response, "Get them first and then we'll see who's going to accept the offers."
Next, there was evidence from Mr Gianotti of conversations which he had with Mr Madden after 18 January 1998 in the course of some of which, at least, Mr Madden said words which appeared to assume that Bellara Willows would proceed to buy the Duskwood land and in the course of one of which Mr Madden said that Bellara Willows was "signing now". While there was a dispute as to what was said in the course of these conversations (and Mr Madden denied that he ever said that Bellara Willows was "signing now"), the contemporaneous file notes prepared by Mr Gianotti support his contentions, and I am prepared to find that Mr Madden spoke, on some occasions at least, as if Bellara Willows unequivocally intended to proceed with the acquisition of the Duskwood land. I should say that I am prepared to accept Mr Gianotti's evidence in this respect ahead of that of Mr Madden notwithstanding that Mr Gianotti appeared to place considerable reliance upon his contemporaneous notes.
Finally, as regards events subsequent to 16 January 1998, I should mention that on 11 May 1998 Bellara Willows submitted an offer to Duskwood to purchase the Duskwood land for a price of $11 million on terms providing for the payment of a deposit of $1 million payable on the sale of parts of the Spring Valley and Red Valley land, with settlement to occur on or before 15 November 1998 save that, in the event that Bellara Willows had not "entered into sufficient sales and settlement of Duskwood to enable the balance of the purchase price to be paid by this date", then Duskwood would grant an extension to 15 June 1999. The offer also provided for part of the purchase price to be made up of "a trade of property" to a value not exceeding $3 million.

The first action

That brings me back to a consideration of the first action.
It seems to me that Duskwood's case is entirely without substance. So much is apparent merely from an examination of its pleading.
If it be assumed that the three representations relied upon by Duskwood were made, and were false, it is difficult to see how Duskwood itself could have suffered the pleaded loss by reliance thereon. The loss which it has particularised in its statement of claim is said to be the difference between the amount for which the Red Valley and the Spring Valley land could have been sold prior to the representations ($15 million) and the amount for which that land was sold as a consequence of the representations ($14 million), namely $1 million. However Duskwood owned no part of the Red Valley and Spring Valley land. That land was owned by Red Valley and Spring Valley. Neither Red Valley nor Spring Valley is a plaintiff. The only plaintiff is Duskwood. It has lost nothing as a consequence of the change in purchase price in respect of the Red Valley and Spring Valley land.
That is enough to dispose of the action. However I should add that I am not, in any event, prepared to find that anyone on behalf of Bellara Willows ever expressed any willingness to purchase the Red Valley and the Spring Valley land for an amount of $15 million. Certainly the evidence established that this amount was proposed to Mr Goh by Mr King but it was never agreed to by Mr Goh, or anyone else, on behalf of Bellara Willows. While Mr Anderson said, in his evidence, that Bellara Willows had, through Mr Goh and/or Mr Madden, indicated a preparedness to pay $15 million for the Red Valley and Spring Valley land, but asked for it to be reduced to $14 million, this seems to me to be against the weight of the evidence generally and I prefer the evidence of Messrs Goh, Madden and Gurdial in that respect.
It seems plain, from the handwritten draft which was written up by Mr Madden in respect of the terms sought by Bellara Willows, that Bellara Willows sought, on 16 January 1998, to pay only $13,500,000 for the Red Valley and Spring Valley land but later increased its offer to $14 million (a figure which had previously been mentioned by Mr Goh to Mr King in the course of a telephone conversation). This is consistent with the terms of the loan application, referred to above, which Bellara Willows made to RMBL prior to 16 January 1998 and in which the "final price" said to be offered for each of the Red Valley and Spring Valley properties was $7 million. Moreover, this accorded with the oral evidence, at least, of Mr King. I am consequently satisfied that Bellara Willows was at no time on 16 January 1998 (or, for that matter, on any other day) prepared to pay any greater sum in respect of the Red Valley and Spring Valley land than $14 million.
It follows that Duskwood's claims in Action 2310 of 1998 should be dismissed.

The second action

That brings me to the second action.
It will be apparent from what I have said above as regards the issues in this action that the first three questions which arise are those of whether there was, on the part of the parties to the 16 January document, an intention to contract, whether, if there was that intention, it was effectively carried through in the 16 January document (in the sense that the contract proposed thereby to be made was not so incomplete or uncertain as to be void) and whether, if that document does amount to a valid contract (and Duskwood relies exclusively upon that document as comprising the contract contended for by it), Duskwood was a party to it. If the answer to any of those questions is "No" then Duskwood's action, as pleaded by it, fails.
I should, before considering what might be the answer to any of these questions, set out the applicable legal principles.
The first two questions are related but distinct. In Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Gleeson CJ said (at 548):
"It is to be noted that the question in a case such as the present is expressed in terms of the intention of the parties to make a concluded bargain: see, eg, Masters v Cameron (1954) 91 CLR 353 at 360. That is not the same as, although in a given case it may be closely related to, the question whether the parties have reached agreement upon such terms as are, in the circumstances, legally necessary to constitute a contract. To say that parties to negotiations have agreed upon sufficient matters to produce the consequence that, perhaps by reference to implied terms or by resort to considerations of reasonableness, a court will treat their consensus as sufficiently comprehensive to be legally binding, is not the same thing as to say that a court will decide that they intended to make a concluded bargain."
(See also Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101 at 131 ‑ 132; [2000] WASCA 27 at [117] and Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) 7 BPR 14,551 at 14,552.)
The first question, that of whether the parties intended to create legal relations, is to be determined objectively. In the Australian Broadcasting Corporation case, above, at 549, Gleeson CJ said:
"Where ... the communications which the parties have exchanged are in writing, the question of their 'intention' is, prima facie, to be resolved objectively, and as a matter of construction of the relevant documents."
(See also Anaconda Nickel, above at 111).
That said, it is settled that extrinsic evidence is admissible for this purpose, including as regards the conduct of the parties both prior to and subsequent to the making of the alleged agreement. (See, for example, Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309; the Australian Broadcasting Corporation case, above, at 547 ‑ 548; Geebung Investments Pty Ltd, above, at 14,562 ‑ 14,563; and Anaconda Nickel, above, at 111 and 134.) However, direct expressions of intent, made after the contract was arrived at, are not admissible (see Anaconda Nickel, above, at 111).
In determining whether there was or was not the requisite intention the court will have regard to the number and importance of any terms left by the parties for later agreement. (See Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 at 666; Geebung Investments Pty Ltd, above, at 14,569 ‑ 14,570 and Anaconda Nickel, above, at 136.)
Reference was made by counsel for Duskwood to a number of authorities in which it has been said that the courts will strive to uphold a bargain arrived at despite the omission of terms or lack of clarity. (See, for example, Trustees Executors and Agency Co Ltd v Peters (1960) 102 CLR 537; Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 and Meehan v Jones (1982) 149 CLR 571.) However, as Anderson J pointed out in Anaconda Nickel, above, at 133:
" ... [T]he principle that courts should be the upholders and not the destroyers of bargains ... is not applicable where the issue to be decided is whether the parties intended to form a concluded bargain. In determining that issue, the court is not being asked to enforce a contract, but to decide whether or not the parties intended to make one. That inquiry need not be approached with any predisposition in favour of upholding anything. The question is whether there is anything to uphold."
That said, the position remains, as Gleeson CJ has said in the Australian Broadcasting Corporation case, above, at 548, that:
"[I]n the ordinary case, as a matter of fact and common sense, other things being equal, the more numerous and significant the areas in respect of which the parties have failed to reach agreement, the slower a court will be to conclude that they had the requisite contractual intention."
As to the second question, being that which raises issues of incompleteness and uncertainty, it is convenient to quote what has recently been said by Ipp J (with the concurrence of Pidgeon J) in Anaconda Nickel, above, at 111 ‑ 113, as follows:
"Once the court has determined that the requisite intention is present, it is then necessary to go on to consider whether the contract is so incomplete or uncertain as to be void. The following statement by Sugerman J, approved by Menzies J in Thorby v Goldberg (1964) 112 CLR 597 at 607 is often cited in this connection:
'It is a first principle of the law of contracts that there can be no binding and enforceable obligation unless the terms of the bargain, or at least its essential and critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by future agreement of the parties. Again, there is no binding contract where the language used is so obscure and incapable of any precise or definite meaning that the court is unable to attribute to the parties any particular contractual intentions.'
As Barwick CJ stated in Upper Hunter County District Council v Australian Chilling & Freezing CoLtd (1968) 118 CLR 429 at 436 ‑ 437, 'a contract is affected by uncertainty only if its essential terms are uncertain or lacking.'
It does not follow that any omission will make a contract incomplete or uncertain in the sense of rendering it invalid. It is only the omission of an essential term that will have that effect. As to the meaning of 'essential' in this context, the following words of Lloyd LJ (with whom the other members of the Court of Appeal agreed) in Pagnan SpA v Feed Products Ltd [1987] 2 Lloyds Rep 601 at 619 are helpful:
'It is sometimes said that the parties must agree on the essential terms and that it is only matters of detail which can be left over. This may be misleading, since the word "essential" in that context is ambiguous. If by "essential" one means a term without which the contract cannot be enforced then the statement is true: the law cannot enforce an incomplete contract. If by "essential" one means a term which the parties have agreed to be essential for the formation of a binding contract, then the statement is tautologous. If by "essential" one means only a term which the court regards as important as opposed to a term which the court regards as less important or a matter of detail, the statement is untrue. It is for the parties to decide whether they wish to be bound and, if so, by what terms, whether they are important or unimportant. It is the parties who are, in the memorable phrase coined by the judge, "the masters of their contractual fate". Of course, the more important the term is the less likely it is that the parties will have left it for future decision. But there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. It happens every day when parties enter into so‑called "heads of agreement".'
In determining whether essential terms are uncertain, it is important to bear in mind that ambiguity does not mean uncertainty: see McDermott v Black (1940) 63 CLR 161 at 175. The approach to be adopted was expressed by Barwick CJ in Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (at 436):
'But a contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not therefore void for uncertainty. As long as it is capable of a meaning, it will ultimately bear that meaning which the courts, or in an appropriate case, an arbitrator, decides is its proper construction: and the court or arbitrator will decide its application. The question becomes one of construction, of ascertaining the intention of the parties, and of applying it. … So long as the language employed by the parties, to use Lord Wright's words in G Scammell & Nephew Ltd v Ouston [1941] AC 251 is not "so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention", the contract cannot be held to be void or uncertain or meaningless. In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved.'
In Meehan v Jones (1982) 149 CLR 571 Gibbs CJ pointed out that the fact that opinions may differ as to which of two possible meanings is to be given to the words of a clause in a contract does not mean that the clause is uncertain. 'It is only if the court is unable to put any definite meaning on the contract that it can be said to be uncertain.'
In this regard, it is to be emphasised that the number of arguments that may be raised on both sides when a point of construction is raised are usually irrelevant to whether the clause is certain. A good example of this is again Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd, a case involving a contract to build a bridge at cost. Barwick CJ pointed out (at 436) that the arguments, for and against, as to whether or not some item of expenditure is a cost may be 'endless' but, generally speaking 'the concept of a cost of doing something is certain in the sense that it provides a criterion by reference to which the rights of the parties may ultimately and logically be worked out, if not by the parties then by the courts'. For a contract to be uncertain, the language must be 'so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention'."

The third question, that of whether Duskwood was a party to the contract, is one of construction (see Protean (Holdings) Ltd (receivers and managers appointed) v American Home Assurance Co (1986) 4 ANZ Insurance Cases 60‑683 at 74,055 ‑ 74,056 and Barroora Pty Ltd v Provincial Insurance (Aust) Ltd (1992) 26 NSWLR 170 at 174). It is, for present purposes, enough to refer in this respect to the trite proposition that the court may, in the course of an exercise of that kind, where appropriate take into account the objective background, or factual matrix, genesis and aim of the contract and the common assumptions of the parties (see DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 429; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352; Adelaide City Corporation v Altmann (1987) 46 SASR 186 and TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130) but that it will exclude evidence which infringes the parol evidence rule. Mason J (as his Honour then was) has said in this respect, in Codelfa Construction, above, at 347, that:
"The broad purpose of the parol evidence rule is to exclude extrinsic evidence (except as to surrounding circumstances), including direct statements of intention (except in cases of latent ambiguity) and antecedent negotiations, to subtract from, add to, vary or contradict the language of a written instrument ... ".
His Honour also said (at 352):
"The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification."
It has been held, on a number of occasions, that extrinsic evidence can be led in order to show what was the capacity in which a particular person signed a document. As Cross on Evidence, 6th Aust ed, points out (par 39190), extrinsic evidence of agency has been received in the case of such forms of signature as "charterer" (Drughorn (Fred) Ltd v Rederiaktiebolaget Trans‑Atlantic [1919] AC 203), "tenant" (Danziger v Thompson [1944] KB 654), "landlord" (Epps v Rothnie [1945] KB 562) and "vendor" (Dillon v Nash [1950] VLR 293). As long ago as 1817 Park J said, in Wilson v Hart (1817) 7 Taunt 295 at 304; 129 ER 118 at 122, that it "is the constant course to show by parol evidence, whether a contracting party is agent or principal". Greig and Davis, The Law of Contract, suggest, at 450, that this aspect of the parol evidence rule is particularly relevant to the so‑called doctrine of the undisclosed principal.
I will come back to the law in this respect below, but propose first to return to the first two questions.
As to the first of them it seems to me that there was, on the part of the parties to the 16 January document, an intention to contract.
This can, firstly, be gleaned from the four corners of the document itself. It was executed on behalf of Bellara Willows, Red Valley and Spring Valley. In the case of Bellara Willows the document records that Mr Madden signed it on Bellara Willows' behalf in his capacity as its solicitor. In the case of Red Valley and Spring Valley the document records that Mr Anderson is the authorised representative of each of those companies and that he signed it in that capacity. It is difficult to understand why the parties to that document should have gone to the trouble of spelling these things out if there was no intention to enter into a binding contract. It would, in such a case, not matter very much whether those who signed the document did or did not have the requisite authority.
While the document is very much briefer than might ordinarily be expected in contracts of this magnitude, it seems plain that the parties intended later to enter into a further contract or contracts containing additional terms that would facilitate and clarify their initial contract. It is well accepted that a binding contract of this kind can be made. So, for example, in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 McLelland J, at 628, referred to a "fourth class of case additional to the three mentioned in Masters v Cameron [(1954) 91 CLR 353]" which had been recognised by Knox CJ, Rich and Dixon JJ in Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310 at 317 as being one in which:
" ... the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms."
In Anaconda Nickel, above, at 110, Ipp J said:
"It is well recognised that parties may enter into a valid contract containing a limited number of terms comprising those terms essential to the bargain that they wish to conclude, in the expectation that at a later date a further contract will be arrived at containing additional terms that would facilitate and clarify the initial contract. That is to say, a binding contract may be arrived at even though it leaves unresolved many matters which might arise in future. As Kennedy J said in Terrex Resources NL v Magnet Petroleum Pty Ltd (1988) 1 WAR 144 at 159:
'An agreement does not have to be worked out in meticulous detail. A bargain can be made containing certain terms, regarded as essentials, whilst the parties recognise that a formal document will eventually be drawn up in the full expectation that a number of additional terms will, by consent, be included in that document.'
See also the remarks of Lord Loreburn in Love & Stewart Ltd v S Instone & Co Ltd (1917) 33 TLR 475 at 476 and Ravinder Rahini Pty Ltd v Kriziac (1991) 30 FCR 300 at 310."
(See also Tern Minerals NL v Kalbara Mining NL (1990) 3 WAR 486 at 494 ‑ 495.)
In this case, it seems to me, all of the essential elements of the contract, insofar as it related to the purchase of the Red Valley and Spring Valley land, were agreed. The price was fixed by cl 3 as was the amount of the deposit, the date upon which the deposit should be paid, the manner of payment and the settlement date. Provision was also made, in cl 3(c)(3) for the grant by the vendor of a second mortgage, the amount of which was readily calculable, and the interest rate on that mortgage was fixed at 9 per cent. The maximum amount of the first mortgage was specified in cl 3(d). The time for obtaining finance was fixed by cl 3(e). Moreover, the agreement obviously contemplated that there might be sales of individual lots prior to settlement and cl 3(h) and (i) made provision as regards what should be done in respect of sales of those lots.
It is true that the agreement does not identify the "two properties at York" having a value of $3,900,000 which are to be transferred to the vendor but there is no difficulty in identifying these by resort to extrinsic circumstances, the two properties having been identified in the course of the prior negotiations. It is well settled that resort to extrinsic evidence is justified in such cases upon the basis that the court does not use that evidence to vary or contradict the contract but rather to apply the contract to the facts which the parties had in their minds and were negotiating about at the time the contract was concluded. (See, in this respect, King, "The Admissibility of Extrinsic Evidence as an Aid to Contract Interpretation: Pushing Objectivity to Absurd Limits" (1993) 6 Corp and Bus LJ 187 at 202; Bank of New Zealand v Simpson [1900] AC 182 at 187; Macdonald v Longbottom [1859] 1 El & L 977; 120 ER 1177 (in which a dispute over the meaning of the phrase "your will" in a contract of sale was resolved by reference to a prior conversation between the parties) and Sir William Gordon‑Cumming v James Hamilton Houldsworth [1910] AC 537 (in which evidence of a plan tendered during negotiations was admitted to identify the subject matter of a land sale).
Also, while it is true that the "two properties at York" were owned by a company other than Bellara Willows, and that this company was not a party to the contract, this does not, in my opinion, mean that there was no intention to contract on the part of Bellara Willows. There is no impediment to a particular company contracting to procure the transfer of two properties owned by another company.
While it is also true that the terms of the "Duskwood sale to Ton Lauwers" are not set out and that the contract does not identify any date by which it was to be determined whether or not that sale was to proceed, it seems to me not to have been essential for Bellara Willows to have known what those terms of sale were and it is possible to imply a term to the effect that Bellara Willows must be notified of the failure of that sale to proceed within a reasonable time. I should say, in any event, that I have reached the conclusion, to which I shall return below, that Duskwood was not a party to the contract and that cl 3(g) thereof was nothing more than a statement of intention on the part of Bellara Willows.
My conclusion as regards the existence of an intention on the part of Bellara Willows to contract for the purchase of the Red Valley and Spring Valley land is supported by the fact that cl 3(g) provides that if "the sale to Ton Lauwers" does not proceed then Bellara Willows "will enter into a separate contract to purchase" the Duskwood land (my italics). I take the italicised words to refer to a contract separate to that constituted by the 16 January document, unlike the reference, in cl 3(f), to "Separate contracts for each of the individual titles for Red Valley and Spring Valley" which seems to contemplate that, when the time comes to give effect, in a more formal way, to the 16 January contract, then each of the individual titles of the land referred to is to be made the subject of a separate formal contract.
There is nothing in the prior, or subsequent, conduct of the parties which makes me doubt the conclusion at which I have arrived.
As to the prior conduct, counsel for Bellara Willows pointed only to the fact that there had been no real inspection of the Duskwood land. I am prepared to find in this respect that, as was said by each of Messrs Goh, Madden and Gurdial, the principal purpose of the visit on 15 January 1998 was that of inspecting the Red Valley and Spring Valley land, Mr King then having been very confident that the Duskwood land would be sold to Hillsfield. However nothing much seems to me to turn on this in circumstances in which, as I have already said, Duskwood was not a party to the contract which was made on 16 January 1998 and cl 3(g) of that contract was only a statement of intention.
As to the subsequent conduct, counsel for Bellara Willows relied upon the fact that, after 16 January 1998, Duskwood submitted to Bellara Willows a contract for signature in relation to the sale of the Duskwood land which differed in significant respects from the terms proposed in cl 3(g) of the document of 16 January 1998. I have already mentioned that on 3 February 1998 Mr King, on Duskwood's behalf, submitted to Bellara Willows a form of offer and acceptance relating to the Duskwood land. The deposit of $2 million there referred to is expressed to be payable within 28 days of satisfaction of condition 4 thereof, being a condition to the effect that the property is "not ... sold to a third party by the 1st March, 1998". The 16 January document had said that the deposit of $2 million was payable "on thirty days after signing". Settlement was expressed, in the 3 February document, to be within 28 days of satisfaction of condition 4 whereas the 16 January document had recorded that the balance of the purchase price was to be payable on 15 November 1998. I have also mentioned that condition 5 of the 3 February document records that the vendor is to give to the purchaser "a first mortgage for the sum of $9,000,000‑00 ... interest free from settlement until 15th Nov, 1998" and that condition 6 thereof provides that "Vacant possession will be given on the later of settlement date or the payment of the $9,000,000‑00 referred to in condition 5". The 16 January document makes no provision as regards the giving of a mortgage and provides that vacant possession is to be given on settlement.
Counsel for Bellara Willows submits that these differences between the two documents are so significant that Duskwood could not sensibly have submitted the later document if it had considered itself to be bound by the earlier document. However this proposition is sufficiently answered by the fact that, as I have already concluded, cl 3(g) is no more than a statement of intention on the part of Bellara Willows, Duskwood not having been a party to the contract and any sale of the Duskwood land to Bellara Willows having been contingent on the failure of the company associated with Mr Lauwers to proceed with its purchase of that land. That being so, Duskwood was free to submit, if it chose, a suggested contract on different terms.
Counsel for Bellara Willows similarly relied upon later negotiations between Bellara Willows and Duskwood in respect of the acquisition of the Duskwood land, including the terms of the offer, referred to above, submitted by Duskwood to Bellara Willows on 23 March 1998 and that, also referred to above, submitted by Bellara Willows to Duskwood on 11 May 1998. However a similar answer can be given to his propositions in this respect.
That brings me to the second of the three questions. As to this, it seems to me that the contract contended for is not so incomplete or uncertain as to be void. I have already said, in answering the first question, that it seems to me that all essential matters have been dealt with and that there is no material uncertainty. I will not repeat what I have already said in that regard.
That leaves only the third question, that of whether Duskwood was a party to the contract.
I have already said that it seems to me that it was not. The contract was expressly signed by Mr Anderson "for and on behalf of" Spring Valley and Red Valley only. The signature clause (for want of a better description of the expressed capacities in which Mr Anderson signed the document) is plain and unambiguous. The only reference, in the contract, to Duskwood is that contained in cl 3(g) thereof. It will be apparent from what I have said above that that clause records that, in the event that the sale of the Duskwood land "to Ton Lauwers" (more correctly Hillsfield) does not proceed then Bellara Willows "will enter into a separate contract to purchase this property" on the terms there set out. Counsel for Duskwood contended that the existence of this clause is consistent only with an intention that Duskwood should be a party to the contract, making it plain that Duskwood's name was inadvertently omitted from the signature clause. However I am not persuaded that this is so. There is, on the face of the document, no reason why cl 3(g) should not be read as recording Bellara Willows' intention to purchase the Duskwood land, by means of a separate contract, should that land not be sold to the company associated with Mr Lauwers, but not as creating any immediate contractual relationship between Bellara Willows and Duskwood. That construction is entirely consistent with the plain and unambiguous language of the signature clause.
Counsel for Duskwood sought to bolster his argument in this respect by resort to extrinsic evidence. I have said above that there are cases in which it has been held that extrinsic evidence can be led in order to show what was the capacity in which a particular person signed a document and in which an undisclosed principal has been allowed to sue on a contract. One of these is that of Drughorn (Fred) Ltd v Rederiaktiebolaget Trans‑Atlantic, referred to above, in which the court was faced with an action brought by persons claiming to be the undisclosed principals of a party described in the contract as "charterer". Notwithstanding that objection was taken to the admission of evidence that the plaintiffs were in fact the charterers on the ground that such evidence would contradict the written contract, the House of Lords held that the evidence was admissible. However prior to this, in Humble v Hunter [1848] 12 QB 310, in which a person had signed a document as "owner", an undisclosed principal was not permitted to intervene. Also, in Formby Bros v Formby (1910) 102 LT 116 extrinsic evidence of agency was said to be inadmissible in circumstances in which a person had signed a document as "proprietor". In this case Vaughan Williams LJ said (at 117) that it was "perfectly plain upon the face of the contract" that it was intended that the person who had there signed the contract should be the sole contractor and there was consequently nothing in the contract to enable the court "to say that the terms of the contract are such that, without contradicting the written contract, evidence could be given to make an undisclosed principal liable in addition to the party who actually signed the contract". A similar view appears to have been taken by Farwell LJ and by Kennedy LJ. While Lord Shaw, in Drughorn (above at 209), said that the time may arise when "the principles of these two cases [Humble v Hunter and Formby Bros v Formby] may have to be reviewed" in the House of Lords and Scott LJ, in Epps v Rothnie (supra) at 565, expressed the opinion, relying to some extent on what had been said by Lord Shaw, that they could "no longer be regarded as good law", the two lines of cases can, as Treitel: The Law of Contract, 8th ed, points out at 631, be distinguished upon the basis that persons "in general own on their own behalf but often charter on behalf of others" and "it contradicts the contract to say that someone other than the person named (without qualification) as owner is owner, but not that someone other than the person named as charterer is charterer". Alternatively, the learned author says (at 632), "a person who is described as owner may contract that he is owner, while a person who is described as charterer does not make any promise that he alone is the charterer" (cf Cross on Evidence, 6th Aust ed, par 39190).
However, even if Humble v Hunter and Formby Bros v Formby are no longer to be regarded as good law I am unable to accept that this is a case in which resort to extrinsic evidence is justified. I have mentioned that the contract expressly and unambiguously records that Mr Anderson signed it only in the capacity of authorised representative of, and "for and on behalf of", Red Valley and Spring Valley. Evidence that he signed it also in some other capacity, or for and on behalf of some other person, in my opinion necessarily contradicts the document. The parties have contracted that Mr Anderson has signed only in the stated capacities. In Drughorn, above at 206, Viscount Haldane accepted the proposition that evidence of authority of an outside principal is not admissible if to give such evidence would be to contradict some term in the contract itself. Similarly, Lord Sumner, in that case, said at 209 that, "Unless this contract [the charterparty] is read as stipulating that ... [the signatory] charters for himself only, the appellants fail." (my italics).

In any event the extrinsic evidence which is relied upon by counsel for Duskwood is that to the effect that it was made known to each of the persons present at the time of the negotiations on 16 January that Mr Anderson would not agree to the sale of any of the Rocky Gully land unless all of it was sold for a total consideration of not less than $25 million. I very much doubt that this evidence is evidence of objective background of a kind which is admissible in the construction of an ambiguous contract. Rather, it seems to me to be evidence of Mr Anderson's actual intentions and expectations which were superseded by and merged in the contract itself. That being so, even if the contract was to be regarded as ambiguous I would not be prepared to make use of this evidence in its construction. I should add, in any event, that I am prepared to find, on the evidence of Messrs Goh and Madden, that Mr King expressed to them and, one might readily infer, to Mr Anderson, his full confidence that the sale of the Duskwood land to Hillsfield would proceed.
Counsel for Duskwood also referred to the evidence, to which I have referred above, which established that on 18 January 1998, after the contract dated 16 January was signed, Mr Goh, on behalf of Bellara Willows, gave to Mr King an authority to sell the Duskwood land "once the offer becomes unconditional", that Bellara Willows thereafter commissioned a valuation, inter alia, of the Duskwood land and that it later, in April 1998, engaged in negotiations, through the agency of Mr King, for the sale of that land to Mr Casella. He also referred to the exchanges, to which I have referred above, between Mr Lauwers and Mr Goh after 16 January 1998, to the telephone conversations between Mr Madden and Mr King, in the course of which Mr Madden encouraged Mr King to sell individual allotments of the Duskwood land, to the telephone conversations between Mr Madden and Mr Gianotti in the course of which Mr Madden appeared to assume that Bellara Willows would proceed to buy the Duskwood land and to the instructions given by Mr Goh to Mr King to adjust the selling prices of the Red Valley and Spring Valley land so as to make them consistent with those of the Duskwood land. However none of this evidence of subsequent conduct on the part of the parties is admissible in construing the contract. It is, as counsel for the plaintiff acknowledged, admissible only for the purpose of determining whether the parties to the 16 January document intended thereby to create legal relations. I have already found that they did but that Duskwood was not a party to the contract comprised by that document (and I have also said that the only contract relied upon by Duskwood is one comprised by that document).
I should say, in any event, that much of this subsequent conduct is as consistent with an intention, on the part of Bellara Willows, to acquire the Duskwood land if, and as soon as, it was able to raise the necessary funds, perhaps by the sale of the Red Valley and Spring Valley land, as it is with an already existing contractual commitment to acquire that land. There is also other evidence of subsequent conduct, referred to above, which is not consistent with an already existing contractual commitment on the part of Bellara Willows to acquire the Duskwood land or which is at least equivocal in that respect as, for example, the terms of the fax sent by Mr Madden to Mr Gianotti on 24 March 1998 and Mr Madden's somewhat equivocal response to Mr King's question as to who it was that would accept offers for the purchase of individual allotments of the Duskwood land. Finally, there is evidence of prior conduct, in the form of the preparation of the loan proposal document, which shows that finance was sought only in respect of the Red Valley and Spring Valley land, and in the evidence of Messrs Goh, Madden and Gurdial, to which I have referred above and which I accept in this respect, that it was always made plain by them to Mr King, in the course of the negotiations on 16 January, that Bellara Willows was unable to finance the acquisition of the Duskwood land by any means other than the sale of part of the Red Valley and Spring Valley land.
It is important that I should add that it does not assist Duskwood to describe the signature clause, as counsel for Duskwood did, as an oversight or mistake on Mr Anderson's part. I have already found that the change to this clause was suggested either by Mr King, as I consider to be most probable, or by Mr Anderson. More importantly, there is, in the statement of claim, no plea of any mistake of that kind and nor is there any claim for rectification. Indeed, the prospect of amendment of the statement of claim in this respect was raised by me during the course of the hearing but counsel for Duskwood declined to adopt that course. I should also add that, notwithstanding that I also raised, in the course of closing submissions, the prospect of an argument made in reliance upon s 11 of the Property Law Act 1969, counsel for the plaintiff did not pursue this avenue. There is consequently no need for me to consider it further although it would follow, if cl 3(g) is merely a statement of intention and not a contractual promise, that this avenue, too, would be closed to Duskwood.
Finally, I should mention that it does not assist Duskwood to point to the fact, as was done by its counsel, that the contract was not executed on behalf of Sky High Corporation, the owner of the York land therein referred to. This omission introduces no ambiguity as regards the capacities in which Mr Anderson executed the document. Nor, for that matter, as I have previously said, was it necessary for Sky High Corporation to be a party to the contract in order to render it efficacious.
It follows from what I have said that Duskwood's claim against Bellara Willows, founded as it is exclusively upon the proposition that Duskwood is, on the proper construction of the contract in writing comprised by the 16 January document, a party to that contract, must fail.
This conclusion makes it unnecessary for me to consider the further argument, advanced on behalf of Bellara Willows, that it was first notified on 10 November 1998 that the sale of the Duskwood land to Hillsfield was no longer proceeding. However I should say, in that respect, that the evidence disclosed that Bellara Willows was told of this as early as 23 March 1998, when Mr Gianotti faxed to Mr Madden the offer and acceptance relating to the Duskwood land to which I have referred above and by which date, Mr Madden acknowledged in his evidence, he had been told that Hillsfield had not been successful in obtaining finance. I should add that Duskwood has made no attempt to amend its pleading in this respect which, as I have earlier mentioned, relies exclusively on notices given on 18 February 1998 (on which date the contract with Hillsfield was still current, Hillsfield having, on 17 February 1998, been granted a 10 day extension of the time within which it could attempt to obtain finance for its proposed acquisition of the Duskwood land) and 10 November 1998.

Conclusions

It follows, from all of the aforegoing, that Duskwood's claim in each action should be dismissed.