George v Secure West Investments Pty Ltd t/as Urban Concepts - [2006] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: GEORGE -v- SECURE WEST INVESTMENTS PTY LTD t/as URBAN CONCEPTS & ANOR [2006] WADC 31

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 31 OCTOBER, 29 NOVEMBER 2005 & 27 JANUARY 2006

DELIVERED : 13 MARCH 2006

FILE NO/S: CIV 2902 of 2004

BETWEEN: KATE LOUISE GEORGE
Plaintiff
AND
SECURE WEST INVESTMENTS PTY LTD t/as URBAN CONCEPTS
First Defendant
HENRY GERALD BETLEHAM
Second Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to set aside default judgment

Legislation:

Crimes Act 1914
Income Tax Assessment Act 1997
Trade Practices Act 1974

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr M N Blandford
First Defendant             :     No appearance
Second Defendant         :     Mr K J Morgan

Solicitors:

Plaintiff:     Bowen Buchbinder Vilensky
First Defendant             :     Not applicable
Second Defendant         :     Murfett & Co

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

Ferragamo v Duffy [1991] SASC 2886
Hamilton v Whitehead (1988) 166 CLR 121
Mallan v Lee (1949) 80 CLR 198
Yorke v Lucas (1995) 158 CLR 661

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: Upon the failure of the defendants to file a defence, on 23 February 2005 judgment was entered for the plaintiff for unspecified damages. The defence was filed on the following day. The application before me, made by the second defendant on 31 August 2005 is to set aside judgment against him.
Although the evidence reveals that until late May 2005 at least the plaintiff considered that the judgement was somehow compromised, whatever founded that appreciation did not translate into any submission on behalf of the applicant that judgment was irregular. Indeed he conceded the point. Accordingly the applicant carried the onus to demonstrate that it ought be set aside upon the exercise of discretion. In determining such an application it is appropriate to consider the circumstances in which judgment was entered, what has transpired since it was entered and the issues that the applicant contends ought be determined at trial. The last consideration is significant, in the absence of good reason to do so the court would not set aside the result established by the judgment.
The combination of circumstances that gave rise to the judgment was unremarkable. I would only observe that a deadline imposed by the plaintiff accommodated the defendants' prior commitment to a date upon which a defence would be filed.
By any measure the lapse of time between the date of judgment and the date of the application is significant. The plaintiff's communication of judgment was prompt. I accept that the message communicated may be portrayed as having been ambiguous however it was a feature of that process that the defendants' solicitor was provided with a copy of the judgment. There is no evidence as to the applicant's appreciation of his position upon receipt of the judgment. While that lack of evidence provides scope to infer that the applicant laboured under some misapprehension as to his position there are other inferences open.
There is little evidence as to whether anything of significance occurred subsequent to late May 2005. I accept that prior to the filing of his affidavit in support of the application in late August 2005 the applicant was interstate. I cannot determine the extent of the period of his absence or its significance for the purposes of bringing the application. The applicant refers to difficulty in obtaining access to documentation held by his former solicitors subsequent to 17 June 2005. He does not provide any detail upon which the dimensions of that difficulty could be constructed and its impact evaluated. I appreciate that on the evidence of what transpired subsequent to the date of judgment the defendant would have me draw an inference which would either somehow be to his advantage or benign. In my opinion in a case where an applicant volunteers to make an application upon which he carries the onus and there is no basis to conclude that failure to attend to its discharge results from any difficulty, the only appropriate conclusion to draw would to some degree be adverse. Accordingly, I consider that at least there is insufficient evidence to explain the delay in making the application.
The significant consideration in any application to set aside judgment is whether the applicant can demonstrate that there is sufficient reason to do so. The plaintiff's claim was for damages for loss arising as a consequence of misleading and deceptive conduct said to have founded her decision to enter into a contractual relationship with the first defendant whereby she purchased a unit in a real estate development. In pleading that claim she contended that at no material time had the unit been lawfully approved for residential use and that it was not capable of being lawfully used for residential purposes. She alleged that in written advertising the first defendant had described the unit as an office or one bed studio and that the second defendant had told the plaintiff that the unit could be used as a residence or office. Those last allegations are characterised as representations that the unit would be able to be lawfully used for residential purposes when construction was completed and the title to the unit issued.
One approach to the task set by the application adopted by the applicant was to focus upon features of the plaintiff's pleading and draw upon the proposition that as the pleading could not have founded judgment it could not sustain the judgment. It is implicit from the result portrayed in Ferragamo v Duffy [1991] SASC 2886 that the court had followed that approach in determining such an application. In that case the court found that the defendant had a complete defence in law to any claim brought in relation to the relevant debt. It seems to me that the fundamental consideration that emerges from that case is that in every case it is for the applicant to found whatever submission that it choses to make. In my opinion the utility of the approach urged by the applicant depends upon the existence of a degree of certainty that would emerge from the context in which the application is made.
The particular parts of the claim that the applicant sought to put under scrutiny were pars 4, 14 and 15. At par 4 the plaintiff pleaded that at all material times the applicant acted as the first defendant's agent in all relevant communications with the plaintiff. At par 14 the plaintiff pleaded that the first defendant engaged in misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974, and at par 15 that the second defendant was involved in that contravention contrary to s 75B (1) of the Trade Practices Act.
In the context of the case, I appreciate that the impact of par 4 would speak firstly to the issue of the authority of the applicant to bind the first defendant and secondly to establish part of the context within which the applicant's involvement in the first defendant's dealings with the plaintiff would be considered.
In seeking to fault the pleading the applicant drew upon Mallan v Lee (1949) 80 CLR 198, in which at p 216 Dixon J stated:
"It would be an inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts."
That observation was made in a context where his Honour was considering the prospect that a corporation's officer would be convicted as an accessory under the Crimes Act 1914 to an offence by the corporation under the Income Tax Assessment Act 1997. The matter had come before the court on a single complaint brought by the Deputy Commissioner against both the corporation and the officer. Upon that complaint the relevant act of the officer had been characterised as the act of the corporation. Whilst Dixon J's observation was no doubt valid, it was directed to the concept manifested in the provision in the Crimes Act. It does not preclude the prospect that the conduct of a natural person may tell both against a corporation and that person. Indeed it is my appreciation that if for present purposes any useful result was revealed by that case, it was to that effect. It was the unanimous view of the court that there was sufficient in the complaint to allow for recourse to the provision of the Income Tax Assessment Act against the officer.
It is coincidental that the same "accessorial elements" expressed in the provision of the Crimes Act considered in Mallan are replicated in s 75B (1) (a) and (c) of the Trade Practices Act, the very provisions that would seem to me to be enlivened by the context provided by the plaintiff's pleading. Other than making that observation, in my opinion Mallan v Lee has nothing to say in relation to any issue in the case before me. As the applicant canvassed case law that suggested that Dixon J's observation may have some impact in the present context, I would emphasise that in Hamilton v Whitehead (1988) 166 CLR 121 Mason CJ Wilson and Toohey JJ rejected the prospect that the reservation expressed in Yorke v Lucas (1995) 158 CLR 661 was necessary. The plea of agency would not preclude the prospect that the applicant was involved in the first defendant's breach, the terms by which s 75B(1) of the Trade Practices Act is expressed. It follows that there is no certain conclusion that would emerge upon consideration of the content of par 4 of the statement of claim that would justify setting the judgment aside.
As to par 14, I took the applicant's case to be more a matter of whether the fact that judgment had been entered against the first defendant by default would admit a finding of breach of s 52. Regardless of whether that submission is well founded, its import should be considered in the context in which it is made, one in which the court has discretion to set aside judgment.
A feature of the context in which the application was made included the terms of the defence. It is appropriate to consider that it represented the position that the defendants sought to adopt in the litigation on the date upon which it was filed. Thereby the first defendant admitted its incorporation, that it made the representations, that prior to entering into the contract with the plaintiff, that it knew of the plaintiff's intention to reside in the unit and that it had subsequently communicated to the plaintiff that it had not been possible to obtain approval for residential use of the unit. In accordance with the assessment of the pleading of its engagement in trade and commerce and that the unit purchased by the plaintiff had never been approved for residential use that I will canvass when dealing with par 15, it is appropriate to consider that those allegations are also admitted.
Contravention of s 52 by the first defendant would not depend upon a finding that it had intended to mislead or deceive. Even though it may have acted honestly and reasonably a corporation may none the less engage in conduct that is misleading or deceptive. It is of no significance that the representations may be characterised as having been predictions.
In my opinion I ought not be troubled by the prospect that it may be considered that there was no finding against the first defendant.
It is then a matter of considering whether by the pleading at par 15 the plaintiff brought a sufficient case against the applicant. At that point she pleaded that the second defendant was involved in the first defendant's contravention of s 52 of the Trade Practices Act contrary to s 75B(1) of the Trade Practices Act.
Section 75B(1) is as follows:
"A reference in this Part to a person involved in a contravention of a provision of Part IV, IVA, IVB, V or VC, or of section 75AU or 75AYA, shall be read as a reference to a person who –
(a)has aided, abetted, counselled or procured the contravention;
(b)has induced, whether by threats or promises or otherwise, the contravention;
(c)has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d)has conspired with others to effect the contravention."
I appreciated that the force of the defendant's submission in relation to the content of that plea was that it did not reveal how it was justified. Were I assessing its sufficiency as a pleading, the result may have been that the case ought to have been better articulated. Although the defendant has presently sought to strike that paragraph and has utilised submissions relating to the application to set aside the judgment to that end, in my opinion in the particular context the focus properly remains upon the application to set aside the judgment. On that application he carries the onus.
In my opinion it is not simply a matter of objectively considering the sufficiency of par 15. The defendant has not provided any basis upon which it is possible to discern that in bringing the application he had any difficulty in appreciating the case against him. I might add that it would be appropriate to consider that in the period up until late May 2005 the applicant had been engaged in the process of getting the case up for trial and had evidently encountered no difficulty in doing so. Upon an assessment of the pleadings and the applicant's evidence the court should not be overly concerned as to the prospect that the particular plea had failed to inform. In coming to that conclusion I would add that there would be sufficient in the statement of claim to support the proposition that s 75B(1)(c) would provide a route to a finding against the applicant.
Accordingly, at that point too I am not satisfied that there is any certainty that emerges from the pleading sufficient to justify the conclusion that it would be appropriate to set aside the judgment.
Absent the prospect of success in the application on the basis contended for by the applicant, the applicant would satisfy the standard by establishing a defence on the merits of the application. Whether the applicant would be considered to have discharged that onus is properly determined within a context that includes the content of the pleadings. There is nothing to indicate that the applicant would resile from the admissions expressed in the defence.
The defendants' response to the allegation that the corporate defendant was engaged in trade or commerce as defined by the Trade Practices Act was silence. They expressly admitted one particular of that allegation and on my reading, have qualified part of the other by adding that the first defendant held the land the subject of the development on trust. It is appropriate to consider the purpose served by pleadings within the context of litigation. The context being fundamentally adversarial, their purpose is to ascertain the issues to be tried. For the same reason that judgment was entered, the defendants' silence in response to the allegation of material fact is properly considered to be an admission. In the context provided by the application I would add that if consideration was given to the flavour of the applicant's evidence it would be irresistible that the first defendant had been so engaged.
At par 5 of the statement of claim the plaintiff alleged:
"The unit has never been lawfully approved for residential use and was at all material times not capable of being lawfully used for residential purposes."
Although she purported to provide particulars of those allegations, in my opinion some of those particulars were allegations of material fact. Perhaps the defendants arrived at a similar conclusion as they pleaded to them. In following that course they admitted that an application was made for what I take from the applicant's evidence to have been planning approval to the Subiaco Redevelopment Authority for the proposed property development of which the unit would be a part; that a plan that accompanied that application depicted the unit as an office; that in response to that application the Authority gave conditional approval for the development; again on the basis of the applicant's evidence, that on or about 13 January 2004 the first defendant applied to the Authority for a change of use for the unit from office to residential; and that that application was unsuccessful.
Four issues would emerge from consideration of the defendants' response to the particulars. The first is whether prior to 27 July 2002 the first defendant had been informed by the Authority that unspecified plans submitted to it after the date of conditional approval did not conform with that approval because inter alia the unit was represented on those plans as having a laundry facility. The second, whether in January 2001 the first defendant had submitted revised drawings to the Authority that had laundry facilities removed so as to present the unit as an office. The third, whether in or about November 2003 the Authority had informed the first defendant that it was aware that wardrobes had been constructed in units approved for commercial use and that it was aware that laundries were about to be built in those units. In addition to those issues, each of which emerges upon express denials, the defendants pleaded that the plans to which conditional approval was granted were amended on 28 August 2000, that the building constructed was built in accordance with unspecified approved plans and that the unit was similarly so constructed.
It is appropriate to consider what is properly drawn from the pleading process. The defendants' response to the plaintiff's allegations that the unit had not been approved for residential use and was not capable of being lawfully used for residential purposes was silence. For the same reason that I have provided for the conclusion as to the applicability of the Act, it is appropriate to conclude that those allegations are admitted. For what it is worth I observe that the applicant's evidence would not suggest that any other conclusion would be appropriately drawn.
As to the significance of what is revealed by the contested particulars, the defendants' response and their positive assertions, in my opinion there is something to be said for an analysis founded upon the broad overview of all that is before me, in particular the admission at par 6. It is that two years after the date of the plaintiff's purchase of the unit the applicant informed the plaintiff that it had not been possible to obtain approval for its lawful residential use. Within the period subsequent to purchase the defendants had taken the Authority's refusal to grant such approval on appeal. There is nothing in either the defendants' pleading or the applicant's evidence to suggest that any feature of either the process of application or appeal had engaged with any vacillation on the critical issue by the Authority. Otherwise I consider that the prospect that any more definitive assessment may be made is hampered by the plaintiff's failure to adhere to both consistent terminology and chronology. I would hasten to add that I do not thereby criticise the plaintiff but simply portray the context in which the applicant took up the onus. That uncertainty is compounded by the terms of the defence. That said, I would observe that the contested particulars appear to go to the defendants' knowledge rather than to lawful usage. Further, that on the basis of the evidence or rather lack of evidence, I am able to conclude that the positive assertions at pars 5(c) and (e) of the defence that the building and unit were built to plan insufficiently relate to the plaintiff's allegations. I would observe that at par 5(e) the defendants deny that in or about November 2003 the Authority informed the first defendant that it was aware that built-in wardrobes had been constructed in units approved for commercial use and that it was also aware that laundries were about to be built in those units. That contested particular has some resonances with par 24 of the applicant's affidavit. It is as follows:
"On 19 November 2003 the SRA notified me that it would not remove its caveat to allow the sale of the strata units until an issue was resolved in relation to the Studio Units having had laundry facilities and built in wardrobes constructed in them for residential rather than 'office' use".

In my opinion those resonances are sufficiently compelling such that in my opinion, in giving the evidence it was incumbent him to make some commitment as to whether he was speaking to that particular.
In summary I take the allegations as to lawful use as being admitted and that consistent with the denial of par 7(a) of the statement of claim there is a dispute as to the issue of the applicant's knowledge of the use to which the unit could lawfully be put. Had the case against the applicant proceeded to trial, the plaintiff would have been required to establish his knowing contravention of the Act. In order to succeed in the application it is for the applicant on the merits of the application to establish a sufficient case to the contrary. I understood that he accepted that in the context of the Authority approving the application for planning approval it would determine the use to which the unit purchased by the plaintiff could lawfully be put. That understanding was founded upon the fact that neither case put by the plaintiff canvassed any other prospect; that the defendants did not plead any different case; and in taking up the onus in the application the applicant did not present any other prospect.
The applicant admitted that he was the first defendant's director and secretary. At par 7(b) of the defence he admitted that: -
"At all material times the second defendant acted on behalf of the first defendant, instructed architects and liaised with architects on behalf of the first defendant, prepared and submitted applications of behalf of the first defendant, communicated with the SRA on behalf of the first defendant and otherwise acted on behalf of the first defendant."
That material has the tendency to implicate the applicant in rather than to distance him from the process by which the lawful use of the unit would be determined.
At par 10 and following of his affidavit he deposes:
"On or about 19 July 2000 Urban Concepts lodged with the SRA an application for planning approval to develop the Land ('the Application')
11.This was the first occasion in which I or Urban Concepts had been involved in a development in Subi Centro. In the course of preparing the application and later obtaining a building licence, it became apparent to me that the Subi Centro redevelopment area is peculiar as compared to other property development areas with which I was familiar, because planning approvals and building licences are granted by two separate authorities, namely the SRA and the City of Subiaco respectively, and in considering planning applications the SRA invites submissions from both the City of Subiaco and the Town of Cambridge.
12.The Application included plans showing the proposed development on the Land of a 3 storey building, comprising a commercial use ground floor, a first floor of 4 commercial offices (units 5 to 8 facing Monteath Road) and 4 residential units, and a residential use second floor ('the Proposed Development'). Annexed hereto and marked "HGB-1" is a copy of those plans dated 28 August 2000 and stamped as having been approved by the SRA on 4 December 2000('the Development Application Plans').
13.On 1 December 2000 the application was approved by the SRA ('the SRA Approval'). In processing the application, planning staff at the SRA made extensive efforts not to alter the design of the first and second floor units as proposed in the development application plans, so as to allow those units to retain layouts for residential living even if this meant designating some parts of the units (such as a bedroom) as theoretically being for office use. It appeared that the SRA was not so much concerned with whether these office designated portions of the units were actually used for office rather than residential purposes once the Proposed Development was built. Rather, the SRA appeared more concerned to find ways to allow the Proposed Development to receive its approval. I understood from my dealings with the SRA that the Proposed Development was well suited to the mixed use ambitions that the SRA had for Subi Centro and the SRA was keen to see it built even if this meant bending SRA guidelines and policies during the approval process. This led me to believe that, once built, there would be no problem in using for residential purposes any of the office designated areas on the first and second floors of the Proposed Development, and if need be that the SRA would at that stage approve amendments to approved plans to allow this to occur."
14.From my experience in the property development industry, I was aware that before commencing construction of the proposed development a building licence would first need to be obtained from the City of Subiaco, and that this would necessitate the lodgement and approval of working drawings which would be much more detailed than the Development Application Plans. In my experience, the working drawings for developments of a size and nature similar to the Proposed Development would often make numerous and significant changes to the approved development plans, and if a change required the development approval to be amended then this amendment was a mere formality that could be left to later subject to the change having been already approved in the working drawings.
15.Feedback from the first defendants preliminary marketing to sell strata units in the Proposed Development indicated that as compared to the demand for units that were purely offices and shared a first floor with units that were purely residential, there was a stronger demand for single bedroom "studio units" in which occupants could both live and work. Although I was at that stage aware that SRA guidelines encouraged any development of the Land to comprise no more than 50 % residential use, I nevertheless also (sic) aware of the SRA policy that developments have ground floor commercial uses and residential upper floors. Moreover, I had by that stage seen the SRA get around the 50 per cent residential use requirement by simply redesignating bedrooms as offices even though there was little likelihood that the redesignated areas would actually be used for office purposes once built.
16.After discussing this feedback with Derek Watt of the first defendant's architects, Colin Moore Architects, working drawings for the proposed development were prepared to show the 4 commercial offices on the first floor ('the Studio Units') as including laundry facilities, and these drawings lodged with the SRA for approval.
17.In January 2001 the SRA gave its approval to working drawings for the proposed development and notified Colin Moore Architects of this approval. Although I am now aware that this approval was only given by the SRA after the drawings had been amended to remove all laundry facilities from the studio units, and it had notified the City of Subiaco to only approve working drawings for the studio units with laundry facilities removed, I do not recollect being aware of this at the time.
18.Further working drawings dated 30 August 2001 were subsequently prepared and in granting a building licence for the proposed development, the City of Subiaco gave its approval to those further drawings on 2 September 2002 after having received them on 23 May 2002. ('the City of Subiaco Approved Working Drawings') Annexed hereto and marked 'HGB-2' is a copy of the City of Subiaco Approved Working Drawings for the first floor of the Proposed Development, showing laundry facilities in the studio units by use of the initials 'WM' and 'DR', the accepted architectural term for washing machine and dryer.
19.On 27 June 2002 the first defendant, as trustee for East Perth Power Station Trust entered into a contract with the plaintiff ('the Contract') to sell to the plaintiff unit 6 of the Proposed Development ('Unit 6'), being one of the Studio Apartments.
20.During the course of prior negotiations with the plaintiff, and when the contract was entered into, I held a genuine belief that Unit 6 would lawfully be able to be used by any occupants to both live and work by the time the proposed development was built and settlement was to occur on any contracts to sell the Studio Units, in particular upon settlement of the contract for Unit 6 ('My Belief'). In the absence of my belief I would not have had the first defendant enter into the contract under which the first defendant became contractually obliged to deliver an outcome that it could only achieve if My Belief did not eventually turn out to be correct.
21.My Belief arose from the circumstances outlined in paragraphs 13 to 18 above and in particular was based on grounds which included the following:
21.1On the City of Subiaco Approved Working Drawings, upon the basis of which the Proposed Development was to be built, the Studio Apartments were obviously designed as residential apartments with rooms that remained as initially designated as a living room, kitchen, bedroom and bathroom and with each of the Office Units continuing to contain a laundry.
21.2The SRA staff assisted in making the proposed development comply with the 50 percent residential requirement by designating portions of the first and second floors as office without any apparent concern that these portions would actually be used as offices when the Proposed Developments is (sic) built.
21.3The Proposed Development generally complied with the intent of the SRA's design guidelines and precinct policy relating to use, in that the ground floor was commercial and the upper floors were residential."
Before I consider the detail of the evidence, on an overview I would observe that it resonates with my assessment of the pleadings; it tends to implicate the applicant in rather than distance him from the process by which the lawful use of the unit would be determined. The application for planning approval that the applicant prepared and submitted to the Authority designated the unit as being for commercial use. The approval granted on 1 December 2000 determined the use to which the unit subsequently purchased by the plaintiff could lawfully be put. There is nothing to suggest that the applicant was unaware of that result. I would suggest that it would be a small step to take to apprehend that he was aware of that result at the time at which the determination was made.
If by par 11 the applicant intended to construct the prospect that the terms of a grant of planning approval would be revisited at the point of obtaining a building licence, as may be portrayed at par 14, I observe that it would emerge by inference in circumstances where evidence ought be provided. In an application in which the onus is upon the applicant and there is no reason to consider that he would have any difficulty in providing evidence, the most appealing inferences open are all adverse to the applicant. The significant consideration in making that observation is that in light of all of the material, the applicant is in the position where it is for him to portray his knowledge at the relevant time. There is no reason to conclude that at any particular time the applicant was not aware of the administrative landscape that he confronted as to the lawful usage of the unit.
On a different analysis of par 11, the significance of the period that the applicant constructs is that the date on which the building licence was granted would have been after the date of the representation. The applicant does not express what it was that emerged at the time of the building licence issued that contributed to his prior understanding of that part of the administrative landscape that relates to the determination of lawful usage. That determination was made a relatively short period of time after preparation of the application for planning approval and well before any engagement with the plaintiff. If the feature that emerged at the end of the period expressed at par 11 was no more than that City of Subiaco would be the entity to which application for a building licence would be made, it is of no consequence. If it is that City of Subiaco would determine that application after it may have availed itself of the opportunity to provide some input into the process of approval of the planning application it too is of not consequence.
Nothing appears to turn upon the peculiarity that par 11 articulates. Whilst I understand that the interactions between the applicant and City of Subiaco were part of the history associated with the development of the land, I do not comprehend what relevance they would have either for the purposes of the plaintiff's case or the application before me.
As to par 13, it suggests that the proposed layout of the internal space of the unit could be adapted for either office or residential use and that the processes at play in the context of planning approval led the applicant to believe that amendment to planning approval might follow upon actual usage. In accordance with par 2 the evidence that would found those prospects and the applicant's belief is given on the basis of the applicant's knowledge. In my opinion it is obviously hearsay. I appreciate that to present the case without it being so compromised may have presented the applicant with a significant task; conceivably one that he considered would be beyond the proper expectation of either the plaintiff or the court. What would amount to a special case in which hearsay may be accepted must take into account the fact that it is judgment that is sought to be set aside. In my opinion characterisation of a case as a special case depends upon the applicant having articulated some difficulty in presenting facts in any other manner. I conclude that it is only the first sentence of the paragraph upon which the applicant can rely. I would add that even if the evidence was not so flawed, it does not appear to me that the belief expressed at the conclusion of the paragraph is supported by the preceding text. The fundamental difficulty that I have with the proposition put on the evidence is that the applicant has failed to appreciate that the plaintiff's case is founded upon lawful use not actual use. Finally I would observe that rather than tending to support the proposition that the applicant did not know that the unit had not been approved for residential use, par 13 would accommodate the contrary conclusion. I would suggest that a significant observation in a context in which the deponent's knowledge is in issue.
The plaintiff's primary submission in relation to par 14 was that it is no more than the applicant's opinion expressed to be founded upon unspecified experience. Ultimately the issue to be considered was its value. In my opinion it is perhaps a more significant observation that there is no certainty that its content would speak to anything of significance either in the case or the application.
As to par 15, not only does the deponent fail to designate a time at which the evidence would have effect, it tends to suggest that the defendant may have something to say as to his state of knowledge at the time that the applicant would have the evidence take effect. The point of that observation is perhaps to underscore the omission of the deponent at any point other than in his defence to deny that he knew that the unit had not been approved for residential use. It is also another instance where the applicant reveals that either he does not appreciate that the plaintiff's case is about lawful use or does not appreciate the difference between lawful and actual use. The plaintiff's observation in relation to par 15 is that it lacks definition and thereby has no utility.
As to par 16, in my opinion the context and manner in which it is expressed suggest that the applicant then knew that the unit had not been approved for residential use.
Before I comment in relation to par 17, I should indicate that on the evidence that I have canvassed above it is not clear what role the applicant played in the process of obtaining planning approval. In light of his admission of par 7(b) of the statement of claim it is difficult to avoid the prospect that he had significant involvement in the application for planning approval and the process of obtaining that approval. He portrays that he has an understanding of the considerations that would relate to such approval. The evidence at pars 15 and 16 portray a level of interest in the issue of the actual use if not the lawful use to which the unit could be put. It is evident that the defendants' commercial interest lay in taking to the market the maximum number of units that would accommodate residential use. The conclusion that I reach is such that in order for the applicant to satisfy the onus that there is a defence on the merits of the application to par 7(a), of the statement of claim it was not enough for him to depose that does not recollect whether upon notification of that approval he was aware of the condition. It is one thing to appreciate that the applicant would find himself in a delicate position when addressing the onus in the application, the more significant consideration is that he had no alternative but to specify when it was that he became aware of the circumstances under which the approval was given.
Equally significant is the fact that the standard by which an application to set aside judgment is assessed reflects the status of what it is that is sought to be interfered with. A judgment founded upon deemed admissions is not qualitatively different to any other. Whilst the court may properly reflect upon evidence that would detract from the deemed admissions, the status of a judgment is such that the court would evaluate the utility of setting it aside. In this case the applicant proposes that it would do so in order to require the plaintiff to establish her case as to his knowledge and conceivably to enable him to give evidence consistent with par 17.
It is conceivable that upon receipt of the information expressed in par 17 the architects kept information relating to approval from the applicant and in the process of generating the "further working drawings dated 30 August 2001" expressed at par 18, continued to keep it from him. My observation is that the applicant does not either say as much or give some other explanation as to why it was that the laundry facilities described as being designated as such in the plans were incorporated in the application submitted to the Subiaco City Council.
Accordingly when it comes to par 20 there is considerable doubt in my mind as to whether the belief described either did exist or was genuinely held. As for the justification for that belief expressed at the conclusion of par 20, I accept that there is some attraction in logic to that justification however it transpires that since the contractual arrangements with the plaintiff have gone awry and I infer, after all of the units have been sold any contractual or statutory obligation of the first defendant has become unenforceable.
As to par 21.1, I return to the distinction between lawful and actual use. I have already observed that the applicant gave evidence at par 11 that he was aware of the peculiar feature of the development process. He has not reconciled that difference with his experience in other locations so as to support whatever it is that he seeks to draw from par 21.1. Absent such a connection it is difficult to determine what the applicant drew from par 21.1 The City of Subiaco would not be dealing with planning approval. Nowhere in his evidence does the applicant provide a useful connection between par 21.1 and the prospect of lawful residential usage.
As to pars 21.2 and 21.3 in my opinion they amount to inadmissible hearsay. Overlooking that fundamental issue as to the applicant's knowledge the content of par 21.2 is vague. I have already observed that there is nothing to suggest that the process of appeal canvassed any prevarication by the Authority on the critical issue.

The content of par 21.3 is also vague. It is put in support of a genuine belief that that by the time that settlement of the sale of the unit would occur it would lawfully be able to be used by any occupants to both live and work. In the absence of further material I have no way of determining whether the evidence is sufficient to justify the conclusion that the belief was founded. I could not justify sending the claim to trial simply to evaluate wether the ground for belief expressed at par 21.3 could be sustained.
In my opinion proper regard for the evidence reveals that the applicant has put an insufficient case to justify the result sought.