Heilpern v Anasco

[2010] NSWSC 317

CITATION:	Heilpern v Anasco [2010] NSWSC 317
HEARING DATE(S):	15 December 2009
JUDGMENT DATE :	22 April 2010
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
DECISION:	Non est factum not established. The contract was not unjust. Decree for specific performance granted.
CATCHWORDS:	DEEDS – non est factum – EQUITY – unconscionable and unjust transactions – statutory remedies under (NSW) Contracts Review Act 1980, s 7 – whether substantive injustice – whether procedural injustice – discretionary considerations
LEGISLATION CITED:	(NSW) Contracts Review Act 1980, s 7, s 9 (NSW) Legal Profession Act 2004 (NSW) Property, Stock and Business Agents Act 2002, s 64(2)
CATEGORY:	Principal judgment
CASES CITED:	Antonovic v Volker (1986) 7 NSWLR 151 Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 Nguyen v Taylor (1992) 27 NSWLR 48 Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41 Petelin v Cullen (1975) 132 CLR 355 St Clair v Petricevic (1988) ASC 55-688 St George Bank Ltd v Trimarchi [2004] NSWCA 120 West v AGC (Advances) Ltd (1986) 5 NSWLR 610
PARTIES:	Louise Heilpern (plaintiff) Elga Anasco (defendant)
FILE NUMBER(S):	SC 2009/290853
COUNSEL:	Mr R Tregenza (plaintiff) Mr G Curtin (defendant)
SOLICITORS:	Klimt & Associates (plaintiff) Boyd-Boland Law (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Thursday, 22 April 2010

2009/290853 Louise Heilpern v Elga Anasco

JUDGMENT

1 HIS HONOUR: The plaintiff Ms Louise Heilpern sues for specific performance of a contract for sale, made between herself as purchaser and the defendant Mrs Elga Anasco as vendor, of unit 9/226 Rainbow Street, Coogee. The vendor resists the claim on the grounds that the contract was not her deed (non est factum), or ought not be enforced (pursuant to (NSW) Contracts Review Act 1980, s 7).

2 Mrs Anasco, now a 69-year-old widow, was born in Chile in 1940 and migrated to Australia in 1970, following which she obtained employment as a nurses’ assistant. In 1978 she and her husband purchased the Rainbow Street unit. Her husband died on 15 March 2007.

3 In early 2009, Mrs Anasco spoke to a real estate agent, Mr David Abela of A.J. Duffy Real Estate, about selling her unit, and on 8 May 2009 she executed a Sales Inspection and Selling Agency Agreement, in which Mr Abela included an estimate of $560,000, although Mrs Anasco instructed that she wanted the property offered for sale at $609,000. Thereafter, the unit was advertised for sale; at least some of the advertisements sought offers over $575,000. At Mrs Anasco’s request, Mr Abela suggested, as a solicitor who might act for her without requiring up-front payment, Mr Vizzone of Vizzone Ruggero & Co. Mr Vizzone telephoned Mrs Anasco, to introduce himself and obtain instructions to prepare a contract. Mrs Anasco told him that she had her title deed available when required, and that she was leaving to go overseas – for what purpose she did not say. Mr Vizzone told her that the normal period from contract to completion was about six weeks and asked whether that was enough; she answered that it was. On 14 May 2009, Mr Vizzone wrote to Mrs Anasco confirming his instructions, and that he was forwarding a copy of the proposed Sale Contract to the agent.

4 On 27 June 2009, Mr Abela received an offer from Lukle Djokic for $570,000, which he conveyed to Mrs Anasco. His contemporaneous note provides the most reliable record of what ensued:

Vendor 1st said she would accept this figure
Then changed her story
I had to get $575,000
I asked Luke to pay $575,000 which she agreed
Then Elga put $price up again
I asked Luke to pay $578,000 – which I presented to vendor – which she rejected

5 In late June and early July 2009, Ms Heilpern was searching for a home unit. She saw an advertisement for the unit, which was open for inspection on Saturday 4 July 2009. Ms Heilpern arrived after the “open-for-inspection” had concluded, but was admitted by Mrs Anasco, to whom she expressed enthusiasm about purchasing the property and in a speedy settlement. She subsequently attended at Mr Abela’s office, where she obtained a draft contract. Having ascertained from an advertisement that the vendor was interested in offers over $575,000, she made an offer of $583,000.

6 On 6 July, Ms Heilpern’s solicitor, Mr Klimt of Klimt & Associates, forwarded to the agent, in escrow pending receipt of a strata inspection report, a contract executed by Ms Heilpern and stating the price as $583,000. On the same date, Ms Heilpern paid a deposit to the agent of $58,300. Subsequently, on 7 or 8 July, Mr Klimt notified the agent that his client wished to proceed to exchange.

7 Mrs Anasco, having been told that Ms Heilpern was prepared to pay $583,000, instructed the agent that she wanted $586,000. Mr Abela reverted to Ms Heilpern, who agreed to pay the higher price. When told of this, Mrs Anasco told the agent that she now wanted $587,000. Mr Abela relayed this to Ms Heilpern, who (on or about 8 July) again accepted the increased price.

8 Mrs Anasco signed the contract as vendor, in the presence of Mr Abela; the precise circumstances in which this took place are controversial and will have to be revisited. Mr Abela then informed Mr Klimt that the vendor had signed the contract. On 8 July, Mr Abela delivered both counterparts of the contract, one executed by Ms Heilpern and the other by Mrs Anasco, to Mr Vizzone, under cover of the following note (Mr Abela’s use of capitalization is rather random and ought not be construed as indicating emphasis):

JOE
Purchaser has agreed to new PRICE OF $587,000 (FIVE HUNDRED + Eighty SEVEN THOUSAND) + will bring ANOTHER cheque to “TOP UP” THE DIFF IN DEPOSIT.
I had MRS ANASCO sign here in the OFFICE IN FRONT OF ME, I WITNESSED SAME.
Please exchange ASAP.
DAVID

9 Mr Abela made an entry in his diary for 9 July:

9/226 Rainbow St will accept 587,000

10 According to Mr Vizzone, having received the executed contracts, he telephoned Mrs Anasco and they had a conversation to the following effect:

VIZZONE: I have a contract here for your property which has a signature on it. Did you sign that contract?

ANASCO: Yes, I did.

VIZZONE: The price on this contract is for the payment of $587,000, is that correct?

ANASCO: Yes, that’s correct. I accepted that amount.

VIZZONE: Well, okay, I will go ahead with it.

ANASCO: Yes, go ahead, finish it. I want to leave.

11 Mr Vizzone made a file note:

T/A Anasco 8 July. Signed C/S contracts. She’s happy with the price.

12 On or about 9 July, Ms Heilpern topped up the deposit to $58,700 by paying a further $400 to Mr Abela, and Mr Vizzone wrote to Mr Klimt, confirming that exchange had been effected and enclosing the counterpart signed by the vendor.

13 On Saturday 11 July, according to a file note of that date made by Mr Abela:

Vendor rang to ask if she’d signed at $585,000.
I told her NO she’d signed the Contract at $587,000
She said good, thank you + relief .. sorry. DA

14 In due course, Mr Klimt submitted a draft transfer for execution. Mr Vizzone then had his staff endeavour to contact Mrs Anasco to obtain her signature. Eventually, Mr Vizzone spoke to her; she said that she was not happy with the sale, and he asked her to come in and see him, which she did the following day. Then, she said that she had been looking for properties in the market and had been unable to find anything she liked in the price range, and spoke of the possibility of renting. She also said that she was not happy with the agent, and Mr Vizzone formed the view that she felt that she had not obtained an adequate price and had been pushed into it by the agent. However, she still wanted to move out of the unit because she could not get on with the other owners; she wanted to buy elsewhere, but was prepared to rent if necessary. Mr Vizzone pointed out that, if she did not complete, the purchaser may sue for specific performance, and the agent may claim commission. He said to her:

Well, look, if you want a bit more time we will speak to the other side about getting you some more time. But, if you don’t want to rent something you may want to settle early. So we could ask for a 21-day extension but the way the rental market is at the present time, if you found something to rent you may need to snap that up straight away. So I will just hold off and we will see how you go over the next few days looking for a property.

15 The following day, Mrs Anasco telephoned and said: “Look, can you ask for that extension”. As a consequence, on 5 August, Mr Vizzone wrote to Mr Klimt, by facsimile:

We have been instructed to request 21 days extension to the settlement period and our client will endeavour to vacate the property and settle the matter as soon as possible.

16 According to Mr Vizzone, Mrs Anasco telephoned him again, a few days later, and they had a conversation to the following effect:

ANASCO: I have been told by people in the building that I did not sign a contract.

VIZZONE: Yes, you did sign the contract. I checked with you before we exchanged contracts. You told me that you had signed the contract.

ANASCO: No, I have been told that I didn’t sign the contract and I don’t have to settle.

VIZZONE: No, that is not right Mrs Anasco.

ANASCO: Oh well, I want to come and get my papers.

VIZZONE: Well, you can come in and collect your papers. I will prepare a bill for you.

17 Subsequently, Mrs Anasco collected her papers from Mr Vizzone’s office.

18 The purchaser served a notice to complete on 24 August 2009, requiring completion on 10 September 2009. On 9 September 2009, new solicitors for Mrs Anasco, Boyd-Boland, wrote to Mr Klimt that Mrs Anasco did not propose to settle on 10 September 2009. These proceedings were commenced by summons filed on 13 October 2009.

Non est factum

19 The availability of the defence of non est factum is not limited to those who are unable to read the relevant instrument due to blindness or illiteracy, but extends to those who, without fault on their part, are unable to understand the purport of the instrument. However, a party invoking the defence bears a heavy onus of showing (1) that he or she signed the document in the belief that it was of a nature radically different from its true nature; and (2) as against innocent persons, that this was not due to carelessness (in the sense of a failure to take reasonable precautions) on his or her own part [see Petelin v Cullen (1975) 132 CLR 355, 360].

20 Mrs Anasco’s case is that she placed her signature on the contract on 6 or 7 July, in her kitchen, believing it to be no more than a list of inclusions, under pressure from Mr Abela to do so, in circumstances where the contract was partially obscured and was represented, implicitly if not explicitly, to be no more than instructions concerning the inclusions, at a time when she had changed her mind and no longer wanted to sell the unit.

21 While Mrs Anasco’s evidence was that Mr Abela visited the unit on 6 or 7 July, and that she signed the document then, Mr Abela denied that that was the case, and maintained that Mrs Anasco signed the contract in his office on Wednesday 8 July. It is correct, as Mr Curtin for Mrs Anasco points out, that in his affidavit Mr Abela did not deny execution on 6 or 7 July, nor maintain – as he subsequently came to do – that execution had taken place on 8 July, but he did deny that execution had taken place in Mrs Anasco’s kitchen and maintained that it had been in his office, and the absence of express denial of the date in those circumstances does not convey admission of execution on 6 or 7 July. Mr Abela’s evidence that execution occurred in his office is consistent with his contemporaneous note and more convincing and plausible than that of Mrs Anasco. Mr Abela said that on about 7 or 8 July Mr Klimt telephoned him to say that Ms Heilpern wished to proceed with the contract. If (as Mr Abela says) Mrs Anasco traveled by bus from her home at Coogee to see Mr Abela in Gardiners Road, Rosebery then that is likely to have happened that or the following day.

22 Mr Vizzone has a file note which attributes to 8 July his conversation with Mrs Anasco in which she confirmed that she had signed the contract and that she agreed with the price of $587,000. While Mr Abela’s diary note of the acceptance of $587,000 appears on 9 July, it could have been prompted by what transpired the previous day, or by subsequent confirmation from Mr Vizzone that she had accepted the price.

23 By far the best fit of the evidence is with signature by Mrs Anasco on 8 July, consistent with Mr Abela’s evidence. I also accept Mr Abela’s evidence, consistent as it is with his file note, that the contract was signed in his office. I find that Mrs Anasco signed the contract in Mr Abela’s presence, in his office, on Wednesday 8 July.

24 Dr Leon’s evidence establishes that Mrs Anasco was at the relevant time likely to have had increased anxiety, and “a degree of impaired recollection of the detail of events”, and greatly reduced ability to concentrate, remain calm or resist pressure. However, that falls well short of establishing that she was unable to understand the nature and effect of the contract for sale (although it may be relevant to her Contracts Review Act case). No difficulty was apparent in her reading and understanding, in the witness box, of the letter from Messrs Vizzone Ruggero & Associates dated 14 May 2009, which referred to the forwarding of a copy of the proposed sale contract to the agent.

25 Mrs Anasco maintained that by 4 July she had changed her mind and no longer wished to sell. It is true that Mr Abela did not deny Mrs Anasco’s assertion that, at some stage in or about June, she had told him that she no longer wished to sell; but on Mrs Anasco’s own version they continued to have contact, and he continued to act. Most obviously, the unit was open for inspection, with Mrs Anasco’s co-operation, on 4 July. Ms Heilpern’s evidence that she was admitted by Mrs Anasco to the unit, and discussed with Mrs Anasco her desire to purchase it, and what items were to be included in the sale, on Saturday 4 July, is inconsistent with Mrs Anasco’s case that she told Ms Heilpern that she did not want to sell, and also with her contention that she did not have an understanding of the nature of the transaction. It is hardly conceivable that Ms Heilpern would have proceeded to obtain a contract, instruct a solicitor and pay a deposit, had Mrs Anasco said anything to the effect that she was not interested in selling, even if only in the short term (given Ms Heilpern’s anxiety to find accommodation). It is also very difficult to reconcile Mrs Anasco’s version with the objective facts that she admitted Ms Heilpern to the unit and discussed sale of it with her. Ms Heilpern’s is the far more probable version. Mrs Anasco did not revoke Mr Abela’s instructions or authority; she may have had some second thoughts, but she had not decided to withdraw the unit from sale.

26 Although she had not said so in her affidavit, Mrs Anasco asserted in the course of her cross-examination that she did not (at the time of signing the document) understand the meaning of the word ‘contract’. This is inconsistent with her affidavit, where she deposed: I knew that to sell my property I would have to sign a Contract. It is also difficult to reconcile with her apparent unquestioning receipt and acceptance of Mr Vizzone’s 14 May 2009 letter, in which he referred to forwarding a draft contract to the agent. Moreover, even if accepted, evidence that she did not understand the word ‘contract’ would be insufficient of itself to establish non est factum, in the absence of proof that she was mistaken as to the nature of the document that she signed. The document contained ample indications that it was an instrument of sale – and not merely (as she claimed she believed to be the case) a mere list of inclusions in the event that the property sold – including references to price and deposit: even on what she said was the form of the contract that was presented to her by Mr Abela, she placed her initials adjacent to the word ‘Price:’; on what was more likely signed by her, she initialed adjacent to ‘Price: $587,000’.

27 On Mrs Anasco’s version, she placed her signature on the document, believing it to be instructions about inclusions, on 6 or 7 July. But this was after she claims to have decided not to sell, and to want nothing further to do with Mr Abela. Why in those circumstances she would sign a document at his request, even if she believed it to be limited to inclusions, is incomprehensible. Her protestations that while she saw references to various inclusions, she did not see the word “Purchaser”, and she initialed beside blank provisions for “Price”, “Deposit” and “Balance”, are highly improbable; it is much more likely that those blanks had been completed, with references to the price.

28 There are a number of uncontroversial, undisputed or indisputable facts that together are strong indicia that Mrs Anasco did understand that the document she signed was a contract for the sale of her unit. First, she had instructed a real estate agent and signed a Selling Agency Agreement with him on 8 May 2009; this necessarily contemplated a sale of the unit. Secondly, the unit had been open for inspection on 4 July, when Ms Heilpern had expressed to her enthusiasm to purchase it, and to do so swiftly. Thirdly, Mr Vizzone had written to her on 14 May, confirming his instructions. Fourthly, she had immediately beforehand discussed price with Mr Abela, and repeatedly increased her asking price as offers matured; this only makes sense if she was contemplating a sale. Fifthly, she placed her initials on the document, at least adjacent to a reference to “Price:”, and probably adjacent to a reference to “Price: $587,000”.

29 In addition, there are matters of which, although not accepted by Mrs Anasco, I am comfortably satisfied. First, prior to exchange of contracts, Mr Vizzone confirmed with her that she had signed the contract and accepted the price of $587,000. Mr Vizzone’s evidence in this respect was not significantly challenged, was corroborated by his contemporaneous note, and was consistent with usual conveyancing practice. Secondly, soon after 9 July 2009, Mrs Anasco mentioned to Mr Abela that there was to be a meeting of the Owners Corporation and that it would be a good idea for the purchaser to attend; Mr Abela suggested this to Ms Heilpern, who said that she did not intend to go to the meeting. Thirdly, the conversation with Mrs Anasco recorded by Mr Abela in his file note of 11 July establishes that Mrs Anasco was then aware that she had signed a contract. Fourthly, Mrs Anasco instructed Mr Vizzone to write to Ms Heilpern’s solicitor on 5 August 2009 requesting a 21-day extension to the settlement period and saying that Mrs Anasco would endeavour to vacate the property and settle as soon as possible; such instructions are inconsistent with her not understanding that she had made a contract. Finally, Mr Vizzone’s evidence of the circumstances in which Mrs Anasco protested that she had not signed the contract – because she had been told as much by others in the building – provides some explanation of her apparent change of position.

30 Further, Mrs Anasco’s claims sit uncomfortably with what otherwise has all the appearances of a routine conveyancing transaction, in which Mrs Anasco retained a real estate agent to sell her unit, who then took the usual steps to obtain a Selling Agency Agreement and to list the property; Mr Vizzone was engaged by Mrs Anasco (through the agent), and wrote to her confirming that he was instructed; the unit was listed and opened for inspection; Ms Heilpern inspected the unit in Mrs Anasco’s presence, expressed interest in purchasing it and obtained a copy of the contract from the agent; Ms Heilpern and Mrs Anasco negotiated the price, through the agent, with Ms Heilpern several times increasing the price once she had an interested purchaser, and Ms Heilpern meeting the several increases demanded by Mrs Anasco; exchange of signed counterparts was effected at the office of Mrs Anasco’s solicitor, after he had confirmed with Mrs Anasco her execution and agreement to the price. Mrs Anasco’s claims effectively impugn the propriety of the two professional persons, agent and solicitor, whom she retained. As her emerged, they involved, first, that the top of the document was covered (by Mr Abela) so as to obscure its true nature; secondly, that she did not understand the meaning of the word ‘contract’; thirdly, that she felt intimidated (by Mr Abela); and fourthly, that she changed her mind because the selling price was not high enough (despite knowing of the agent’s original lower estimate) and that she had nowhere to go (despite nothing have changed in this respect from when she first placed the unit on the market).

31 Dr Leon reports that Mrs Anasco has impaired recollection, which may afford at least a partial explanation, for her (incorrect) current recollection – having changed her mind about selling the unit or selling it at the price agreed – of events, which she now remembers in the way she may now have convinced herself that they happened, rather than in the way in which they actually occurred.

32 I therefore conclude that Mrs Anasco signed the contract in Mr Abela’s office on Wednesday 8 July 2009, understanding that she was signing a contract for sale of her unit at a price of $587,000, and thereafter instructed Mr Vizzone to proceed with the sale in the knowledge that she had done so. The defence of non est factum therefore fails. In light of those conclusions, it is unnecessary to consider Ms Heilpern’s arguments, advanced in the alternative to a contract arising from actual agreement, that there was a contract made through the ostensible agency of Mrs Anasco’s solicitor, or a conventional estoppel to the same effect.

Contracts Review Act

33 In the alternative to her defence of non est factum, Mrs Anasco invokes the Contracts Review Act to claim relief from the obligations of the contract.

34 Consideration of an application for relief under Contracts Review Act, s 7, involve two steps. The first is whether the contract was unjust in the circumstances in which it was made, having regard to the factors referred to in s 9. This is a conclusion of fact, albeit one of ultimate fact involving a broadly based value judgment [Antonovic v Volker (1986) 7 NSWLR 151, 154-155 (Samuels JA, Kirby P agreeing); Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256, 270 (Samuels JA); Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41, [34]-[40] (Spigelman CJ), [106]-[111] (Basten JA)]. The second, which arises only if the first is resolved in the affirmative, is whether any and if so what relief should be granted; this involves the exercise of a judicial discretion [Khoshaba, [34]-[36] (Spigelman CJ), [109] (Basten JA)].

35 In West v AGC (Advances) Ltd (1986) 5 NSWLR 610, McHugh JA (as he then was) explained that circumstances productive of “unjustness” in a contract may be substantive or procedural: substantive unfairness pertaining to the harshness of the terms imposed, and procedural unfairness pertaining to the manner in which the contract was negotiated and formed. His Honour explained (at 620-622):

Under s 7(1) a contract may be unjust in the circumstances existing when it was made because of the way it operates in relation to the claimant or because of the way in which it was made or both. Thus a contractual provision may be unjust simply because it imposes an unreasonable burden on the claimant when it was not reasonably necessary for the protection of the legitimate interests of the party seeking to enforce the provision: cf s 9(2)(d). In other cases the contract may not be unjust per se but may be unjust because in the circumstances the claimant did not have the capacity or opportunity to make an informed or real choice as to whether he should enter into the contract: cf s 9(2)(a), 9(2)(e), 9(2)(f), 9(2)(g), 9(2)(i), 9(2)(j). More often, it will be a combination of the operation of the contract and the manner in which it was made that renders the contract or one of its provisions unjust in the circumstances. Thus a contract may be unjust under the Act because its terms, consequences or effects are unjust. This is substantive injustice. Or a contract may be unjust because of the unfairness of the methods used to make it. This is procedural injustice. Most unjust contracts will be the product of both procedural and substantive injustice.

… If a contract or one of its relevant provisions is neither unfair nor unreasonable so far as the applicant is concerned, it is difficult to see how the existence of inequality in bargaining power or lack of independent advice, for example, can render the contract or a provision of the contract unjust.

…

If a defendant has not been engaged in conduct depriving the claimant of a real or informed choice to enter into a contract and the terms of the contract are reasonable as between the parties, I do not see how that contract can be considered unjust simply because it was not in the interest of the claimant to make the contract or because she had no independent advice.

36 Accordingly, an unjust contract is usually a product of the combination of substantive and procedural unfairness. However, as Spigelman CJ has observed in Khoshaba (at [64]-[92]), each case must depend on its facts; West is now 20 years old and community standards may have changed from those applied in 1986 in West. I am prepared to accept that procedural unfairness alone may suffice to make a contract unjust, even though its terms are objectively not unreasonable, where the party claiming relief would not have entered into the contract if properly advised or informed of its legal and practical effect, consequences and risks.

37 It is impossible to identify any substantive injustice in the terms of the subject contract. The contract and its terms are not harsh or unjust. Its terms were the standard conditions for a contract for sale of land. There is no reason for supposing that the price of $587,000 was other than an appropriate one. Indeed, Mr Abela had, in the Selling Agency Agreement, provided an estimate of $560,000; he had told Mrs Anasco that the $620,000 she initially sought was too high. Mrs Anasco asserts that she had wanted to buy another unit but needed a good price for her unit to afford what she wanted, but she was aware of the estimated selling price of $560,000, and the contract price of $587,000 that Ms Heilpern agreed to pay was significantly above that estimate. The contract reflected what Mrs Anasco sought to achieve when she first instructed the real estate agent, and on better terms that she was then told could reasonably be expected. Although Mrs Anasco says that she wished to withdraw the property from sake because she had nowhere else to live, her circumstances in that respect were no different from those that pertained when she listed the property for sale.

38 As to procedural injustice, Mrs Anasco invoked her limited capacity with the English language, and the conduct of Mr Abela in procuring her signature of the contract.

39 True it is that English was not Mrs Anasco’s native tongue, and her English was lacked some fluency. However, in the witness box she rarely needed the assistance of the interpreter, and she was able to read aloud in the witness box Mr Vizzone’s 14 May letter, in English. Whatever her limitations in English might have been, they did not prevent her from understanding that she was signing a contract for sale of her unit at $587,000, and in those circumstances, any limitation on her English was not of practical significance.

40 As to Mr Abela’s conduct, it is said that Mrs Anasco did not consent to the transaction and that her signature on the contract was the result of a trick, or at least pressure, by her own agent, Mr Abela, in respect of which she was not reasonably able to protect her own interests.

41 First, my conclusions in respect of non est factum also dispose of this argument. I do not accept that Mrs Anasco was pressured, let alone tricked, into this contract. The most powerful evidence of this is her subsequent confirmation to Mr Vizzone that she had signed the contract, at a price of $587,000, and her instructions to him to proceed. Irrespective of anything that Mr Abela may have done, those instructions demonstrate that she was a free and voluntary vendor. Moreover, although Mrs Anasco says that she felt afraid and intimidated by Mr Abela immediately prior to signing the document, it is difficult to see what she could have felt intimidated about, if she thought (as she claims) that it was merely a list of inclusions – a document of little consequence on its own.

42 Secondly, Mr Abela was Mrs Anasco’s own agent. Parties to a contract may be held responsible for the conduct of those who act on their behalf: thus s 9(2) lists amongst the relevant considerations:

(j) whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act:
(i) by any other party to the contract,
(ii) by any person acting or appearing or purporting to act for or on behalf of any other party to the contract, or
(iii) by any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract, …

43 There is no suggestion that any unfair tactics were used by or on behalf of or to the knowledge of Ms Heilpern. That is not to say that a contract cannot be unjust even though the vitiating circumstance is not known to the other party; there are plainly cases in which a contract may be unjust, even though the other party is unaware of the relevant circumstance [St Clair v Petricevic (1988) ASC ¶55-688, 58,207 (Hope JA); Beneficial Finance v Karavas, 277 (Meagher JA); St George Bank Ltd v Trimarchi [2004] NSWCA 120, [36]; Khoshaba, [117]-[119]. Nonetheless, characterisation of a contract as unjust requires adoption of a more objective view than the subjective perspective of one party to the contract. As McHugh JA said in West (at 622):

… a contract will not be unjust against a party unless the contract or one of its provisions is the product of unfair conduct on his part either in the terms which he has imposed or in the means which he has employed to make the contract.

44 An overall evaluation of injustice therefore requires that the court have regard to the position of all the contracting parties. In this case, even if Mr Abela had been somewhat overbearing towards his client, bearing in mind her subsequent confirmation to Mr Vizzone that she had signed the contract and agreed the price, and the absence of any suggestion that Ms Heilpern was in any way implicated, I would not have found this contract to be an unjust one.

45 In that light, the second step – namely the exercise of discretion to grant relief – does not strictly arise, but lest I be in error on the question whether the contract was unjust, I will address it, on the assumption that, instead of my above conclusions, I had decided that the contract was unjust by reason of pressure applied by Mr Abela, but for which Mrs Anasco would not otherwise have entered into it.

46 First, on the question whether as a matter of discretion relief should be granted, the knowledge of the other party (here, Ms Heilpern) is highly relevant, although absence of knowledge of the circumstances of injustice is not necessarily decisive against a claim for relief [Khoshaba, [77], [119]; Beneficial Finance v Karavas, 277 (Meagher JA); Nguyen v Taylor (1992) 27 NSWLR 48 (Sheller JA)]. The conduct alleged to have been productive of injustice here was not conduct of Ms Heilpern or her agents, but of Mrs Anasco’s own agent. Ms Heilpern is entirely innocent of anything alleged against Mr Abela (or Mr Vizzone).

47 Secondly, Ms Heilpern would be prejudiced by avoidance of the contract, in reliance on which she not only paid a substantial deposit, but also called off her search for a unit to house her young family. While terms might remediate any prejudice in respect of the deposit, the further delay in finding accommodation could not be ameliorated.

48 Thirdly, the Court must consider, inter alia, the public interest. There is a public interest in purchasers being entitled to rely on contracts into which they enter being upheld, in the absence of any vitiating circumstance in which the purchaser or his or her agent is implicated. Against that, however, there is a public interest in permitting vendors who are tricked, deceived or pressured into contracts into which they would not otherwise have entered being relieved from the consequences; hence I do not see public interest as decisive in this case.

49 Fourthly, as already recorded, the contract was not substantively unjust, and this bears, though by no means decisively, on the discretionary question – because it means that no substantive injustice would be occasioned to Mrs Anasco by upholding and enforcing the contract.

50 Thus, had I concluded that the contract was unjust by reason of pressure applied by Mr Abela and that Mrs Anasco would not otherwise have entered into it, I would nonetheless as a matter of discretion, having regard to Ms Heilpern’s innocence, the prejudice to her if relief were granted, and the absence of substantive injustice, have declined relief.

Other matters

51 A number of issues were raised, ostensibly as to credit, which ultimately have not proved influential on credit or otherwise relevant; I shall therefore touch on them but lightly.

52 The amount of the deposit shown on the contract – $58,300 – was obviously calculated when the purchase price was believed to be $583,000; it was not altered when the price was increased to $587,000, even though Ms Heilpern “topped up” the deposit with a further $400. That the balance purchase price was not changed to $528,700, given the ultimate intention of the parties that the price be $587,000, says nothing about the credit of Mr Abela or Mr Vizzone. The balance to be paid upon completion (subject to the usual adjustments on settlement) is now $528,300.

53 It was suggested that by having Mrs Anasco sign the contract in his presence, Mr Abela committed a breach of (NSW) Property, Stock and Business Agents Act 2002, s 64(2), which prohibits an agent from participating in the “exchange or making of the contract”, unless the agent was authorized to so do by the party. Section 64(2) uses the term making of the contract after the reference to exchange to prohibit the agent participating in the making of a contract entered into by a means other than exchange. The term making of the contract does not include merely procuring and witnessing its signature, at least unless both parties are present at the time and sign the one document with the intent that they be immediately bound, or by some other means a contract immediately comes into existence upon signature. The signing of the contract by Mrs Anasco did not make the contract; the subsequent exchange by Mr Vizzone did so. There was no contravention of s 64(2). In any event, subsection 64(2) expressly provides that a breach of the section does not affect the validity of the contract.

54 Mr Vizzone apparently did not provide a costs disclosure to Mrs Anasco before accepting her instructions. While the (NSW) Legal Profession Act 2004 imposes a professional obligation on a solicitor to provide a costs disclosure, I do not regard the omission to do as detracting from the credibility of Mr Vizzone’s evidence.

Conclusion

55 For the foregoing reasons, I have reached the following conclusions.

56 Mrs Anasco signed the contract in Mr Abela’s office on Wednesday 8 July 2009, understanding that she was signing a contract for sale of her unit at a price of $587,000, and thereafter instructed Mr Vizzone to proceed with the sale in the knowledge that she had done so. The defence of non est factum therefore fails.

57 In light of those conclusions, it is unnecessary to consider Ms Heilpern’s arguments, advanced in the alternative to a contract arising as a result of actual agreement, that there was a contract made through the ostensible agency of Mrs Anasco’s solicitor, or a conventional estoppel to the same effect.

58 It is impossible to identify any substantive injustice in the terms of the subject contract. The contract and its terms are not harsh or unjust; they were the standard conditions for a contract for sale of land. There is no reason for supposing that the price of $587,000 was other than an appropriate one. Whatever her limitations in English might have been, they did not prevent Mrs Anasco from understanding that she was signing a contract for sale of her unit at $587,000, and in those circumstances, any limitation on her English was not of practical significance. I do not accept that Mrs Anasco was pressured, let alone tricked, into this contract. On an overall evaluation of injustice having regard to the position of both contracting parties, even if Mr Abela was somewhat overbearing towards his client, bearing in mind her subsequent confirmation to Mr Vizzone that she had signed the contract and agreed the price, and the absence of any suggestion that Ms Heilpern was in any way implicated, I would not have found this contract to be an unjust one. Had I concluded that the contract was unjust by reason of pressure applied by Mr Abela and that Mrs Anasco would not otherwise have entered into it, I would nonetheless as a matter of discretion, having regard to Ms Heilpern’s innocence, the prejudice to her if relief were granted, and the absence of substantive injustice, have declined relief. Accordingly, the Contracts Review Act case also fails

59 No other basis for declining specific enforcement was suggested.

60 Subject to any submissions that counsel may wish to make as to their form, my orders are:

(1) Declare that the contract dated 9 July 2009 between the defendant as vendor and the plaintiff as purchaser (“Contract”) of Unit 9, 226 Rainbow Street, Coogee, being the land comprised in folio identifier 9/SP3752 (“Property”), ought to be specifically performed and carried into execution.

(2) Order that the Contract be specifically performed and carried into execution.

(3) Order that within seven days the defendant furnish to the plaintiff’s solicitor written notice specifying a time (during ordinary business hours, not less than seven and not more than fourteen days from the date of such notice) and place (within the City of Sydney) for settlement, and directions as to payment of the balance purchase money.

(4) Order that upon tender by the plaintiff to the defendant of the balance purchase money according to the contract, the defendant:


a. deliver to the plaintiff a duly executed transfer of the Property in registrable form, the certificate of title for folio identifier 9/SP3752, and a duly executed discharge in registrable form of any mortgage or other encumbrance that may be registered on the title of the Property; and

b. give the plaintiff vacant possession of the Property.


(5) Reserve liberty to apply in the event of any difficulty arising in the implementation of these orders.

(6) Order that there be an inquiry as to the damages which the plaintiff has suffered by reason of the defendant’s breach of contract in failing to complete the Contract by 10 September 2009, such inquiry to proceed until further order before me.

(7) Order that the defendant pay the plaintiff’s costs.

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