Koutsoukos v Blaikie - [2024] SADC 44

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
KOUTSOUKOS v BLAIKIE
[2024] SADC 44
Judgment of his Honour Judge Slattery
5 April 2024

REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - FORM AND CONTENT OF CAVEAT - NATURE OF ESTATE OR INTEREST CLAIMED
The applicant claims for orders for specific performance of a contract in writing signed by the respondent for the sale and purchase of land described in Certificate of Title Register Book Volume 6254, Folio 577 which is situated adjacent to the Northern Expressway.
In 2015, the land was rezoned so that, with the necessary consents and permissions, it could be subdivided for domestic housing. In the period between 2008 and 2014, the applicant assisted the respondent as an agent in the process of rezoning of the land.
In the period from 2014 until November 2023, the respondent received and considered offers from a range of potential purchasers for the land. In 2014, the respondent accepted an offer of $2.25 million for the land but a contract did not eventuate. The respondent negotiated with offerors about each of the offers received for the land including one received in November 2023.
On 29 August 2023, a creditor of the respondent obtained an order from the Supreme Court for payment by the respondent of the sum of $900,000 plus costs of the action. The judgment creditor moved the Court for a warrant of sale of the property. At that time, there were other creditors secured upon the property who were owed approximately $600,000. In total, the land was now bound to creditors in the amount of about $1.6 million.
The respondent sought to treat with the applicant and then executed a contract of sale to the applicant of the land for a purchase price of $3.5 million dollars subject to due diligence conditions.
The contract between the parties is dated 18 September 2023. The essential terms of the contract were: sale price of $3.5 million dollars; settlement date of 17 July 2025 subject to completion of due diligence within 180 days; upon completion of due diligence and the confirmation of the contract or upon confirmation of a contract separately by failure of the applicant to notify the completion of due diligence within the 180-day period, a deposit of $5,000 was payable. The contract was otherwise subject to the standard Real Estate Institute of South Australia terms and conditions.
Following the execution of the contract and by letter dated 28 December 2023, the applicant gave notice in writing to the respondent of the satisfactory completion by him of his due diligence, that the contract was unconditional and that settlement would take place on 17 July 2025. He proffered the amount of deposit for payment to the respondent.
The respondent refused to accept the deposit, rejected the applicant’s contention that the contract subsisted, that he would settle on 17 July 2025 or that it cast any obligations upon him. Alternatively, the respondent contends that: if he executed the contract, his signature was procured in circumstances of unconscionability and that his judgment was overborne by the applicant; that the applicant was the respondent’s agent and the procuring of his signature upon the contract was an occasion of breach of fiduciary duty as an agent; that the execution of the contract by the respondent was procured by the misleading conduct of the applicant; that the alleged contract was rescinded following an act of repudiation by the applicant.
Held:
1.      The contract of 18 September 2023 is a valid and enforceable contract executed by the parties thereto as persons at arm’s length having agreed upon its terms.
2.      The respondent did not execute the contract in circumstances of unconscionability where his judgment was overborne. At the time of execution, the respondent was of sound mind and was able to exercise his own commercial judgment freely and voluntarily. Although he was 75 years of age, he was commercially very astute and experienced and during his life, he had been involved in multiple transactions for the sale, purchase, subdivision and letting of real property.
3.      As at 18 September 2023, the applicant was not the agent of the respondent and owed no fiduciary duties to him. Since 2014 and up until the date of the contract, the respondent had to the exclusion of the applicant, separately been fielding and negotiating offers from a range of offerors for the purchase of the property. There was no fiduciary duty owed to the respondent that was breached.
4.      There was no misleading conduct on the part of the applicant towards the respondent. The applicant did not represent to the respondent that the contract was merely a holding exercise to defeat the warrant for sale of the land of a judgment creditor.
5.      On 28 December 2023, the applicant informed the respondent of the successful completion of his due diligence. The applicant proffered to the respondent the amount of $5,000 for the deposit in accordance with the terms of the contract. The respondent refused to accept the deposit. The applicant has not thereby committed any form of repudiatory action upon which the respondent may rely.
6.      The letter of rescission of the respondent of 15 December 2023 was not effective and was of no legal consequence. It mistakenly referred to the wrong contract and was factually erroneous in that the applicant had not committed any repudiatory act upon which the respondent may rely to treat the contract as rescinded.
7.      The applicant has satisfied all of the terms and conditions of the contract. Orders that the contract be specifically enforced. Declarations and orders accordingly.
8.      The Court will hear the parties further in relation to costs, and ancillary and consequential orders.
Real Property Act 1886 (SA), referred to.
Baumgartner v Baumgartner (1987) 164 CLR 137; Muschinski v Dodds (1985) 160 CLR 583; Blomley v Ryan (1956) 99 CLR 362; Commercial Bank of Australia Ltd v Amadio and Anor (1983) 151 CLR 446; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303 at 314 ; Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 ; Hely – Hutchinson v Brayhead Ltd [1968] 1 QB 549; Cadd v Cadd (1909) 9 CLR 171; Meehan v Jones (1982) 149 CLR 571, considered.

KOUTSOUKOS v BLAIKIE
[2024] SADC 44
Introduction

In this action the applicant, Mr John Koutsoukos (the applicant), sues the respondent, Mr Jonathan Grant Blaikie (the respondent), for orders for specific performance and ancillary relief connected with a claim for a declaration of the validity of a contract dated 18 September 2023 (Tender Book Exhibit P2, from page 1) (the contract) for the sale and purchase of land at Riverbank Road, Angle Vale. The applicant seeks orders for specific performance of that contract. The contract discloses an earlier date of 17 July 2023; that date is significant as it is the date from when the settlement date of the contract is to be calculated and nothing turns on the difference between those two dates. The land comprises about 35,000 m² in an area that was formerly disposed as a chicken farming business (in multiple sheds). It has now been rezoned and is available for redevelopment with permission. It was formerly zoned ‘rural’.
There were a number of special conditions attached to the contract. One of them is a due diligence condition allowing a maximum of 180 days, during which the applicant could satisfy himself about the suitability of the land for development. At that time, the land was largely in a broad acre form with some improvements.
Under the contract, upon notification of the completion of the due diligence or upon the expiry of 180 days from the date of the contract and where the purchaser has not notified the respondent in writing that the due diligence is not satisfied, the contract became unconditional and a deposit of $5,000 was due and payable. Settlement was required to take place within two years of the date of the signing of the contract; in this instance, two years from 17 July 2023 even though the contract is otherwise dated 18 September 2023.
The applicant lodged a caveat to protect the contract in the usual course as a purchaser. The caveat was warned by the respondent. An application for extension of time to remove the caveat was heard before Chief Judge Evans in this Court on and from 5 January 2024, and there was an extension of time granted for the removal of the caveat. An order was made for an urgent trial of this action.
At that hearing before the Chief Judge, the respondent informed the Chief Judge that a refinance proposal in the amount of $2 million was pending and that the presence of the applicant's caveat put that arrangement in jeopardy. It was alleged that this refinance proposal was connected with an intention of the respondent to develop the land personally.
I have had regard to the whole of the evidence in this matter. I have also had regard to the whole of the evidence before the Chief Judge and to the oral evidence given by the respondent before me. I am satisfied and I find that this submission could not be sustained on any basis. I am satisfied that at no time was there a refinance proposal in the amount of $2 million on foot for the benefit of the respondent at that time. I am also satisfied that this submission put to the Chief Judge was unsustainable and was without any credibility.
The identified urgency of the need for the trial surrounded a debt owed to a judgment creditor, Mr Charles Chelliah. Mr Chelliah had obtained a judgment against the respondent personally of almost $900,000, inclusive of interest plus costs, given by Judge Bochner on 29 August 2023. The hearing of the application in respect of that judgment before her Honour had occurred in April and May of 2023.
The respondent lodged an appeal against that judgment. Doyle J in the Supreme Court made an order for security for costs on that appeal. This order for security was not complied with and the appeal lapsed. The urgency now is that Mr Chelliah intends to execute upon the judgment that he has obtained. It is estimated that costs may be in the amount of up to $100,000 or more. The principal debt to Mr Chelliah has been outstanding for a very long time.
This trial was heard over a two-day period on 20 and 21 February 2024. The parties relied for their evidence-in-chief substantially upon the affidavit evidence that had been filed in Court since December 2023. I made orders for the filing of Points of Claim and Points of Defence. I am satisfied that these pleadings properly identify the causes of action and the defences upon which the parties rely. The evidence at trial comprised the affidavit material, as well as viva voce evidence.
Exhibit P2 is the parties' tender book. It includes a number of the exhibits to the affidavits of the applicant, such as Exhibits JK11, JK12, JK14, JK15, JK16 and JK17 to the affidavit of the applicant sworn 19 January 2024 (Exhibit P2, document 6). Exhibit P4 is the affidavit of the applicant of 28 December 2023 filed in support of the application for extension of time for the removal of the caveat. Exhibit P5 is a further affidavit of the applicant of 19 January 2024 tendered in evidence. Exhibit P6 is a further affidavit of the applicant of 8 February 2024, tendered in evidence. These documents were admitted to evidence without objection.
Exhibit D8 is an affidavit of the respondent of 5 February 2024; Exhibit D9 is an affidavit of the respondent of 18 February 2024; Exhibit P10 is an email from Mr Adam Squires to the respondent of 25 February 2022. In evidence there are a number of other emails passing between the respondent, the applicant and other persons, which comprise Exhibits P11, P12 and P13. Exhibit P14 is a warrant of sale of the subject property in favour of Charles Rajaratnam Chelliah dated 6 October 2023. These documents were also tendered in evidence without objection.
The applicant seeks an order for declarations that the contract executed on 18 September 2023 bearing a commencement date of 17 July 2023 is a valid and enforceable contract, and that orders for specific performance of it should be made. The contention of the respondent is that the contract is not valid; that it was executed in circumstances of unconscionable conduct or breach of fiduciary duty; that it has been terminated; and he seeks orders for the removal of the caveat.
Result
For reasons that follow, I am satisfied that none of the defences raised by the respondent are established. I am satisfied that there has been no breach of fiduciary duty as pleaded and I am satisfied that there is no evidence of any unconscionable conduct on the part of the applicant. I am satisfied and I find that the respondent is a highly experienced person in matters of real estate transactions; he understood the transaction he was entering on 18 September 2023; he was a willing participant in the transaction; and he understood he was conveying to the applicant his beneficial interest in the land by the contract. The completion of the contract was dependent upon the fulfillment of a due diligence special condition for the benefit of the applicant. I find that the alleged termination has not occurred. The alleged letter of termination referred to the wrong contract and was ineffective. I find that there was no ground available to the respondent to terminate the contract.
I have reviewed all of the evidence that has been led in the trial. I have taken into account the whole of the evidence, including the documentary evidence, the viva voce evidence, and the other exhibits. I have made my assessments of the witnesses without necessarily delving into each aspect of the evidence given by them. In any event, I have taken into account the whole of the evidence before me in reaching my conclusion.
Based upon the affidavit and other evidence (which is not challenged) the applicant seeks the following orders :-
The Applicant Claims:-
28.1A declaration that the Applicant has a valid contract over the land comprised in Certificate of Title Registered Book Volume 6254 folio 577 for the purchase of the land.
28.2Consequential orders to give effect to such declaration including an order for specific performance of the contract.
28.3 Orders providing for costs.
The applicant contends that there exists between the parties an enforceable contract for the benefit of the applicant for the purchase of the property. I find, for the reasons set out hereunder, that the applicant is entitled to these orders.
Preliminary findings of fact
I make the following preliminary findings of fact. As a result of the development along the Northern Expressway corridor, a significant portion of land has now become available to be rezoned. It was once rural land; it was in general broadacre land used for primary production. Following rezoning, it may now become available for potential redevelopment as domestic housing with the advantage of the adjacent expressway.
The land is heavily encumbered as follows:-
The land
5.     The land is subject to:
5.1    mortgage 10539249 in favour of AMP Bank limited in respect of a debt.
5.2    mortgage 11968077 in favour of Sue Marshall.
5.3    caveat number 12029220 in favour of Charles Chelliah in respect of an unregistered mortgage.
5.4    order of Court 12837545 in favour of PMG Geological Services Pty Ltd.
5.5    caveat 13418462 in favour of Commission of State Taxation.
5.6    caveat 14166368 in favour of the Applicant in respect of his claim pursuant to the contract.
5.7    caveat 14179309 in favour of Renewable Industries Group Pty Ltd.
The final caveat lodged by Renewable Industries Group Pty Ltd (RIM) claims an interest as caveator or as a party which allegedly has contributed to the maintenance and improvement of this property. This appears to claim an interest in equity akin to that recognised in the decisions of the High Court in Baumgartner v Baumgartner [1] and Muschinski v Dodds.[2] In such a claim, the moving party must be able to prove the expenditure of capital, effort or both to an asset with the expectation (ordinarily arising out of an agreement or understanding) of benefit usually following a promise made in a fiduciary or equitable setting, and which would be an occasion of unconscionability for the promisor to depart from such a promise. Although I am not asked to express any view upon this caveat, I consider that it is unsustainable. I disclose my reasons for forming that view later in this judgment.
[1] (1987) 164 CLR 137.
[2] (1985) 160 CLR 583.
A background to the development of the land
It is not in contest between the parties that from 2007, the State Government of South Australia undertook a review of the planning of the land adjacent to the township of Angle Vale as part of an initiative to provide more residential land along the Northern Expressway corridor. It had the potential to significantly increase the value of the land for the benefit of the respondent. It is also not in contest that between 2008 and 2012, the applicant assisted the respondent, at his request, to promote the rezoning of the land; the applicant attended more than 200 meetings with the respondent, with council, at public fora, and with other local landowner groups. He also prepared written submissions on behalf of the respondent to help achieve the rezoning of the land. Ultimately the land was rezoned in 2015.
In that background I accept, and it is not put seriously in contention, that the applicant has known the respondent for a very long period of time. I accept that he has assisted the respondent deal with local and State government authorities about the rezoning of the land, the compulsory acquisition of a portion of the land, and with issues arising from time to time about the land, including at least 200 meetings connected with the rezoning.
He has, through his own corporate entities and personally, also made offers to the respondent to purchase the land. This occurred during 2023. He has had a long history of involvement with the respondent and in connection with the land.
In cross-examination, the applicant said that all of the assistance given by him to the respondent was based upon (my words) altruistic intentions. And he did not expect any benefit. I am unable to accept that evidence and I am satisfied that the intention of the applicant was to place himself in the best position to purchase the property if it became available. He did this by giving many years of assistance to the respondent and, as I have said, before August 2023 he made offers to the respondent to purchase the property. These were rejected. In 2023, he was not in a relationship of principal and agent or in any other form of fiduciary relationship with the respondent. He and the respondent were at ‘arm’s length’ as a potential vendor and purchaser. The respondent rejected the first offer of the applicant and maintained that he would develop the land. Nothing said or done by the applicant in any way adversely affected that situation. The respondent fielded and entered negotiations about other offers from third parties without input from the applicant. No duty of honesty or disclosure arose between them.
An assessment of the evidence of the applicant and the respondent
Although I have not accepted this aspect of the applicant's evidence, that finding does not affect my assessment of the overall credibility of his evidence, which I accept. In contrast, I am unable to accept any of the evidence of the respondent unless it was corroborated by other independent evidence which is objectively verifiable and proved. In the course of cross-examination, a series of propositions were put to the respondent that he had deliberately lied in his evidence. This was appropriate in light of the earlier cross-examination of the respondent and the obvious inconsistencies with his evidence and other objectively proven facts. The respondent denied that he had lied.

It is not necessary for me to make any findings specifically about whether the respondent was deliberately and consciously lying. It is sufficient for me to say that the evidence of the respondent was not credible, it simply cannot be believed, and at times, in my opinion, appeared to be contrived to suit the then current purpose and attitude of the respondent.
The offers connected with the land
Paragraph 10 of the Points of Claim (FDN 23) provides:-
‘On 17 July 2023 the Applicant met with the Respondent and put an offer in writing to purchase the land for a price of $3.5 million upon the terms and conditions set out in the contract.’
It is not in contention that this offer was made by the applicant and was refused. Paragraph 11 of the Points of Claim (FDN 23) provides:-
‘The Respondent declined to sell the land to the Applicant upon the terms set out in the contract saying words to the effect that he had offers coming in from other parties and wished to consider those offers before committing himself.’
None of these matters are in dispute. Separate from any dealing with the applicant, the respondent actively sought out purchasers for the property and defended the claim of Mr Chelliah. He had legal advice through the whole of this time. He was never in an inferior bargaining position, for the reasons that are developed later in these reasons. The applicant did not owe him any form of fiduciary duty.
I am satisfied that on the evidence, there were other interested parties who were said to be interested in purchasing the land. For example, a Gabriel Haidar made an offer in the following form:-[3]
‘12.1A written expression of interest at a price of $2.8 million with a due diligence period of 18 months from a potential purchaser Gabriel Haidar.’
[3] Applicant’s Points of Claim (FDN 23), [12.1].
It is appropriate to assess the content of this offer which is set out in full in JK11 of Exhibit P5 (pages 12-13). At page 15 of JK11 there is a letter from Scammell & Co Solicitors addressed to the respondent, dated 28 April 2023. After introducing the firm of solicitors as acting for Mr Haidar, the solicitors inform the respondent that they wish to advise that their client anticipates that he would be agreeable to sale terms, including the following:-[4]
[4] JK11 of Exhibit P5.
The proffered purchase price is $2.8 million. Settlement will not occur until after the satisfaction of the special conditions, including a due diligence period of 18 months. In the interim, access must be provided to the property. The agreement is subject to the relevant approvals as a condition precedent. There is a reference in this offer to loose materials and debris upon the property. It is not in contest on the evidence that the respondent has stored at the property a significant number of cars (about 100), many car bodies and an amount of other debris. It is implicit on the evidence that it would take substantial effort and time to remove this material.
In the context of the case at bar, important points of reference in this letter are the periods in which steps are proposed to be taken. They are very long; for example, the due diligence period is 18 months. This gives some illustration of the commercial requirements for contracts of this nature and is an example of the form of commercial terms that may be proffered by parties connected with undertaking a development of this nature.
Of equal and perhaps greater importance was the offer by an entity called ‘Accord’, which is a fund managing business. In a letter of 17 May 2023 addressed to the respondent, Accord provides a term sheet. It introduces itself and informs the respondent that it operates as a fund management and property development business. It is pleased to present its key term sheet for the purchase of the property. It is attached and is in the following terms:- [5]
[5] JK-12 of Exhibit P5.
This key term sheet is set out at page 17 of the exhibit and it identifies: the developer; the proposed purchase price of $3 million; and the deposit of $30,000 payable 14 days from all parties signing a land sale contract. The deposit is to be refunded if there is no settlement. The completion of the contract, which is determinative of the payment of the purchase price and which is also connected to the terms of the contract and the deposit, is conditional upon the following: due diligence which requires the purchaser to be satisfied in its absolute discretion with its due diligence, investigations within 60 days of the date of the contract, and special conditions being satisfied or waived within 12 months of the due diligence condition being satisfied. These include: first, the purchaser obtaining planning approval on terms and conditions acceptable to the purchaser in his absolute discretion for the proposed development of the property; second, the purchaser entering into an agreement to lease the property on terms acceptable to the purchaser; third, the purchaser conducting environmental investigations to satisfy itself that the property is suitable for the intended use; and fourth, the purchaser will have the option to extend the call option period for an additional two months. The offer is in the form of a negotiation for the grant by the respondent of what is commonly called a put and call option.
Settlement is defined in the term sheet as occurring within 60 days from the date the purchaser notifies the vendor in writing that the last of the special conditions have been satisfied or waived. There are other terms which do not require discussion.
Similar to the offer of Mr Haidar, it is apparent that when this offer for this type of asset is reviewed preparatory to the formation of a commercial contract, it is customary for there to be very long lead-up periods from the time of the execution of a binding contract to the time of settlement, during which the parties are to make their own investigations about their decision and proceed (or not) as the case may be. These are part and parcel of the commercial context in which these issues are required to be considered.
In relation to the term sheet, there is a clause entitled 'Binding Terms', it provides that whilst Accord is intending upon conducting bona fide negotiations, it will not be taken to have entered into a legally binding commitment in respect of the purchase of the property unless and until a contract has been duly executed by all parties. The parties do not intend to be bound by the term sheet apart from exceptional matters of exclusivity and confidentiality. This term sheet was never signed by the respondent.
The case of the applicant
The applicant's case is that on or about 31 August 2023, the respondent informed the applicant that he was negotiating with potential purchasers in the range of $3-3.5 million. The respondent denies this assertion, but in evidence the respondent did not strenuously maintain this denial. I think the allegation is correct, although I have seen no evidence of any (other) offer of $3.5 million.
At the end of August 2023, very dramatic changes in the circumstances affecting the respondent occurred. I am satisfied that between August and September 2023, a number of quite deleterious ‘seismic’ shifts happened to the fortunes of the respondent.
I have earlier mentioned Mr Charles Chelliah. On 29 August 2023, Mr Chelliah obtained a judgment from Judge Bochner in the Supreme Court on his claim in debt against the respondent in the amount of $570,000 plus $300,000 of interest plus costs. The trial of that action occurred in April and May of 2023. On the evidence there has been no assessment of the costs, and the appeal against the decision has lapsed for the reasons that I earlier identified (the decision by Doyle J to order security for costs,[6] and the respondent failed to provide the security). Mr Chelliah has proceeded to pursue his rights as a judgment creditor of the respondent, and upon his pursuit of the land to discharge the debt. Taking into account the costs payable by the respondent in that action, Mr Chelliah now likely seeks repayment of between $900,000 and $1,000,000 which I am satisfied the respondent is unable to pay.
[6] Blaikie v Chelliah [2023] SASCA 143.
The effect of this judgment against the respondent became the genesis of a very high level of activity on the part of the respondent in around September 2023.
I accept the evidence of the applicant that the respondent had been under considerable pressure to discharge the Chelliah debt since at least June 2023. After the completion of the hearing before Judge Bochner, I am satisfied that despite their earlier more cordial relationship, Mr Chelliah was pressing the respondent very rigorously for payment of a very large amount owed to him. By this time, the respondent owed but had failed to pay the Chelliah debt over a period of about ten or so years. This explains the very high level of interest within the judgment of Judge Bochner.
The respondent spoke to the applicant about the Chelliah judgment in about June 2023 and the respondent informed the applicant that he wanted to keep fighting against it. He was concerned about the imminence of the judgment, the amount of debt that he could not pay, and the severe commercial consequences of such developments. At that time, the applicant warned the respondent that Mr Chelliah would seek a warrant of sale over the Angle Vale property and sell it if the respondent continued to keep (unsuccessfully) fighting the debt claim. The respondent told the applicant that he wanted to find a funder to pay out his mortgages and judgment debts and that he might be able to procure first mortgage funding but it would be conditional upon a funder being satisfied that the loan could be paid back within a certain time frame. The applicant informed the respondent that no bank or financial institution will lend to a 75-year-old man with no income and a bad credit rating.
The applicant then informed the respondent that only private funders would consider refinancing and that construction and development finance would be much more difficult to obtain for the respondent because conditions would need to be met. The applicant informed the respondent that he could only achieve this by partnering with a land developer with a proven track record of obtaining access to funding. As an example, Accord is such an entity. Mr Haidar is not known to fall into that category.
The respondent asked the applicant to help refinance his debts and judgments with a private non-bank lender so that he can continue to stay on the Angle Vale property. He said that he wished to remain at Angle Vale, where he was living, for at least two years whilst the development progressed. It was at that time that the applicant offered to develop the Angle Vale property and accommodate the respondent's desire to remain there. That would only occur if a contract was signed on similar or better terms than the Accord contract and allow the applicant to perform his due diligence to determine the best outcome.
The respondent then told the applicant that he would give consideration to this and discuss it further. There was a number of further conversations at the end of June 2023 between the parties. The applicant told the respondent that he needed a six-month due diligence period with a two-year settlement period and he was prepared to pay $3.5 million. I am satisfied that in or about mid July 2023, the applicant prepared a standard Real Estate Institute of South Australia commercial contract for sale and purchase of the property. The contract was taken to the respondent at the Angle Vale property late in the afternoon of 17 July 2023. The respondent refused to sign that contract and stated that he had offers coming in for the sale of the property from other parties and he wanted to see what those offers would be. I have earlier canvassed some of those offers.
I am satisfied that the respondent said to the applicant that he expected to sign another contract and was likely to do so. Then in August 2023, the respondent told the applicant that he had received further offers to buy the Angle Vale property from a number of entities, namely, Harcourts Real Estate through an agent Simon De Wit for $3 million, from an Indian backed consortium for $3.5 million with conditions and, from Bruce MacDonald Real Estate, an agent from G & Q Real Estate, which had Chinese clients ready and willing to offer between $3 million and $3.5 million.
In discussions between the applicant and the respondent from June 2023, it became apparent that the Chelliah proceedings had become a matter of considerable concern to the respondent, who was by then pursuing the possibility of selling the land.
At that time, the respondent was living in a house on the property and he had stored there a quantity of equipment in various stages of disuse. There were about 100 cars and car bodies on the property. The respondent was 75 years of age and he was not in receipt of any regular income. His credit rating was impacted by the Chelliah litigation and there were significant challenges in securing funding from anyone but a third tier lender at a very high interest rate. Also, the respondent understood that finding an alternative block to move to under the threat of forced sale under the Supreme Court warrant was a significant risk for him.
I am also satisfied, in the background of these facts, that the respondent had previously investigated selling the land in the period between 2004 and 2017. For example, at the end of 2013, the applicant became aware that the respondent had not yet repaid the Chelliah loan and, on 1 November 2013, Mr Chelliah had lodged a caveat over the land in respect of an unregistered mortgage to which I have earlier made reference. I am also satisfied that the respondent then engaged Smallacombe Burnside as selling agents for the land on 29 March 2014.
On or about 1 September 2014, Assured Lanser Communities offered to purchase the land for $300,000 plus 12.5% of the value of gross sales. This offer therefore required a rezoning of the land and the acceptance of a proposed Land Management Agreement. On 14 November 2017, ATEK offered to purchase the land for $2.25 million on particular conditions. The respondent replied to the offer of ATEK through his conveyancer, Carrington Conveyancers, on 16 November 2017. He said then that he was prepared to sell the land for $2.25 million but wished to negotiate the conditions.
Of importance here is that the respondent agreed to sell the land. A copy of the Carrington Conveyancers response to ATEK is in evidence in Exhibit JK17. I am also satisfied that in 2017, the respondent discussed the ATEK investment offer with the applicant and asked the applicant if he was interested in purchasing the property at the same price but with a longer settlement. At the time, and because of other more pressing commitments and commercial deals, the applicant could not proceed with that purchase and did not take up that opportunity.
The Chelliah proceeding
It follows the applicant knew at least from that time, between 2004 to 2017, the respondent had an intention and was willing to sell the property, and he was prepared to sell the property to the applicant rather than another purchaser. In evidence, an assertion was made by the respondent that the Chelliah proceeding was a matter of discussion between the parties, including whether or not a contract of sale would impact upon the Chelliah proceedings. The approach allegedly discussed was that if a ‘faux’ contract was prepared in the name of the applicant then it could somehow delay or circumscribe the effect and impact of the Chelliah proceedings. I do not accept that evidence. It was not strongly put in the case before me and I reject it.
I am satisfied on the evidence that the purpose of the applicant and the understanding of the respondent when the applicant proffered the contract for sale and purchase of the land in September 2023, was that the applicant bound himself to an offer to purchase the land for $3.5 million.
I am also satisfied that the applicant and the respondent had a meeting with Mr Chelliah and his adviser, Mr Joe Assisi, in the morning of 15 September 2023.
At that meeting, Mr Chelliah informed the respondent that he was now serious about selling up the respondent and that legal steps would be taken immediately to enforce the judgment debt against the property. At that meeting Mr Chelliah and his adviser gave all the parties present to understand and they left the respondent in absolutely no doubt of their view of the respondent’s very poor legal, financial and personal position. Mr Chelliah and his adviser took a very aggressive approach at that meeting. Patience with the respondent had ended. The parties were informed that the respondent had exhausted the patience of Mr Chelliah.
Following that meeting, which took place over lunch at a restaurant near the InterContinental Hotel in North Terrace, the applicant and the respondent went to the office of the solicitor, Mr Jelbert, in Compton Street, Adelaide. At that meeting there was a discussion about the prospects of dealing with Mr Chelliah's claim. In the course of that meeting the applicant made known to Mr Jelbert that Mr Chelliah was serious about selling up the land and something had to be done urgently. The respondent reportedly talked about his desire to develop the property for a profit. He wrongly assumed the unlimited forbearance of Mr Chelliah, which was not a probability.
In the course of that meeting, Mr Jelbert introduced the prospect of a Mr De Angelis as a developer who might be able to help. Following that meeting, the applicant sent to Mr Jelbert a text message at about 3.30 p.m. asking him for the contact details for Mr De Angelis. At that time, the applicant was aware of Mr De Angelis. They had met many years prior to that time and his belief was that Mr De Angelis would not be in a position to assist the respondent. The applicant subsequently ascertained from a search of the Bankruptcy Register that Mr De Angelis had been bankrupt on four occasions and was last discharged from bankruptcy on 17 October 2023, after the date of the discussion with Mr Jelbert who introduced him to the respondent.
There was also concern at the time that the respondent would be in a position where the property might be sold on a forced sale under a warrant of sale in support of the judgment and that he would then have to leave the property in a much shorter timeframe than previously discussed. I am satisfied that, as a result of the occurrence of all of these matters, the applicant quite hurriedly prepared a form of contract, which is document 1 in Exhibit P2. He drew the contract in the background that the respondent was aware that: a forced sale would be the worst case scenario financially and would minimise any return he got from the property; the best case for him was to enter into a private contract of sale with the highest bidder on the best terms to ensure he maximised his return from the property; there was no real prospect of the respondent being involved as a proprietor in any redevelopment of the land because of his state of penury; and Mr Chelliah was no longer prepared to indulge him as he wanted his money.
In those circumstances, the applicant decided he would put again to the respondent a contract in the same amount and largely in the same terms as had been offered in July 2023, about 8 weeks earlier. Once prepared, he then made arrangements to attend upon the respondent to see if he would consider it and if he agreed to sign it.
I am satisfied that the applicant made this decision and took these steps for a number of reasons. First, if the execution upon the judgment had proceeded, he knew the respondent would be put off the property in short order and he would lose the time and opportunity needed to manage and arrange his affairs to leave in an orderly fashion. Second, the process under a warrant of sale requires a Court official to sell or arrange for the sale of the property and the respondent loses control of the process of sale. Third, although the process of sale used may be by public auction, the only interest of Mr Chelliah was to achieve a sale price sufficient after the discharge of the secured creditors to discharge the debt of Mr Chelliah. Fourth and as a consequence of the first three matters, the sale of the property without the Land Management Agreement (LMA) may not achieve the optimum value for the land compared to the position if an LMA exists and it risks the prospect of a shortfall. This would lead to further claims against the respondent from unsatisfied creditors in the event of such a shortfall. Finally, such a scenario leaves the respondent with nothing from his many years of property investments and sales.
The execution of the contract

I am, therefore, satisfied of the following matters: on 18 September 2023 at about 2 p.m, the applicant met with a Mr Geoff Stamoulis at 340 Diment Road, Burton. The purpose of the meeting was to discuss various business matters and at that meeting, the applicant showed Mr Stamoulis a copy of the unsigned contract of 17 July 2023. He said to Mr Stamoulis that he was going to see the respondent at Angle Vale to get the contract signed. He arrived at the Angle Vale property at about 4.30 p.m. He had a meeting with the respondent outside the front of his house. It was in the vicinity of his vehicle. At that meeting, the contract was presented by the applicant to the respondent. Together, they read through the terms of the contract. Particular reference was made to the due diligence provision recorded there by the applicant. In the course of that meeting the applicant explained that it was largely the same contract that they had previously discussed on 17 July 2023.
I am satisfied on the evidence that at that meeting the respondent read over the document. I am satisfied that he was then very familiar with such documents derived from his very long history of involvement in property transactions of a very broad range of property assets. He had also seen a form of offer like this before from the applicant. I am also satisfied that in executing this contract the applicant personally bound himself, and he intended to bind himself to the contract.
After the discussion between the applicant and the respondent, the respondent indicated his willingness to sign the document. The parties went through each page of the document. On each page the parties put their initials. The respondent initialled each page of the contract, using the pen supplied to him by the applicant before signing the execution page. As the parties went through the document, the applicant turned the pages for initialling and therefore, it took some time for this process to be completed, as it was a 15-page document.
I am also satisfied that all of these events occurred at the property on 18 September 2023. I find that the applicant signed and initialled the contract on the corner of an open wooden pallet crate, which was an uneven surface. The respondent then arranged for the execution of the contract to be witnessed and for each of the documents to be initialled by the witnesses. The applicant told the respondent that he would take the contract with him and hold on to it and get a copy to him later. The applicant told the respondent that he would immediately commence spending time and money as part of his due diligence process. He then returned to the office of Mr Stamoulis who executed the contract as a witness.
I accept the evidence of the applicant that his state of mind, as at 18 September 2023 and following, was that the respondent was satisfied that the contract was his best option, particularly in regard to the risks inherent in the Chelliah claim, the Chelliah judgment and the appeal. He was aware of the immediacy of the threat presented by this claim of Mr Chelliah. I am also satisfied that the commercial terms of the contract constituted significant benefits to the respondent. The purchase price of $3.5 million was in addition to the compensation for the section of land payable to him and which had already been compulsorily acquired. The applicant considered that to be of a value in the order of $1.5 million; the respondent thought it was of a value of $2 million. I am satisfied, for the reasons already set out, that the offer of $3.5 million was well in excess of the best offer from Accord which was in the amount of $3 million but on much less advantageous terms as I have set out. It was not a settled contractual offer and was subject to a number of conditions that needed to be satisfied before Accord would enter into a contractually binding obligation. The contract executed with the applicant was much more straightforward and so the commercial risks accepted by the applicant were far greater. I am also satisfied that this arrangement was suitable to the respondent because he then had time to remove his collection of cars and other materials in an orderly fashion.
The evidence satisfies me that after the execution of that contract, the applicant set about completing the due diligence process as quickly as possible. He correctly thought that it was in his commercial interests to do so. He knew that the inquiries in relation to land development were lengthy, time-consuming and very costly. The work he undertook included the following: he conferred with the Playford Council and its planning department; he conferred with the Department of Infrastructure and Transport; he conferred with the stormwater engineers; he conferred with SA Water and especially the major land projects team and received water and sewer location plans; he then retained and conferred with traffic engineering consultants; he retained and conferred with environmental consultants and engineers; he made inquiries with the Environmental Protection Agency; he retained and conferred with civil construction contractors, with civil earthworks and earthmoving contractors and with town planners; he had conferences with SA Power Networks in relation to the provision of power to the site; he retained and conferred with surveyors and with Lands Titles Office personnel; and he conferred with local real estate agents to determine the value of developing residential lands and he conferred with commercial real estate agents to determine the potential end value of commercial land use.
Separately, he retained and conferred with RSA Lawyers and Gary Taplin Valuers; he conferred with first and second mortgagees and other judgment creditors regarding the discharge of outstanding debts and liabilities; he conferred with banks and financial institutions and private lenders for project finance; and he conferred with licensed valuers in relation to information to be provided to the banks and other lenders.
The respondent’s attempts to sell the land
In his evidence, the respondent continuously reiterated that it was only his intention to develop the land himself and thus he would never sell the land. He continuously made reference to his desire to enter into a joint venture with another developer. Two in particular stand out. The first by a group called ATEK, however this was an offer made in 2017 in the following terms:-[7]
[7] Exhibit P6, Sixth Affidavit of John Koutsoukos made on 8 February 2024 (FDN 19), 24-25.
Another related deal was proposed by the Renewal Group controlled by Mr De Angelis. I am satisfied that Mr De Angelis was very recently discharged from his fourth bankruptcy. Exhibit P3 discloses that he had been bankrupt in 1977, 1997, 2007 and 2020. He was not discharged from his fourth bankruptcy until 17 October 2023. I have earlier said that I would discuss in detail the proposal associated with Mr De Angelis which is also called the ‘Rimel offer’. This proposal is connected with and is the foundation of the fourth caveat on the title of the land to which I have earlier made mention. Although the issue of the sustainability of that caveat is not a matter for my decision here, it is apparent on the evidence that there are a large number of peculiar features about this Rimel offer that require comment. It is appropriate that I set out those matters here before continuing to canvass the evidence which informs my decision.
A proposed joint venture between the respondent and Rimel SA Pty Ltd (Rimel) is Exhibit P1. The agreement is executed by the respondent and Rimel SA Pty Ltd on 22 November 2023. The Rimel contract discloses all of the work to date performed by the respondent and the project is described:-
AGREEMENT
1. TERM
This Agreement commences on the date it is fully executed and shall continue until, in the opinion of the Developer, the Project is completed unless determined earlier as set out herein.
(“the Term”)
The Project commences on the Commencement Date, which shall be the date on which the first draw-down of funding for the Project occurs and by either of the Landholder and/or the Developer.
2. THE PROJECT
This Agreement covers the development of the Property pursuant to the Preliminary Subdivision Plan or any subsequent amendment update variation to the Preliminary Plan of Subdivision as may be agreed in writing between the parties from time to time or as maybe required by any Government, semi-government, planning agency, authority or utilities entity during the course of the Project and the sale of each and all of the subsequent subdivided blocks of land.
(“the Project”)
2.1 Project Plant & Equipment
Plant and equipment purchased by any party hereto in relation to any Project shall become the property of the Developer.
2.2 Project Completion
The Project will be completed when the Developer advises the Landholder it is completed, but in any event not prior to:
the subdivided blocks of land being sold or otherwise allocated or,
the budget allocated for the Project being fully expended on the Project and the Developer notifying each of the parties that it no longer wishes to provide funds for that particular project,
Whichever first occurs.
Therefore, the project comprises the conditions for the development and the sale of the property. The developer owns all of the plant and equipment used within the development. The project will be completed under clause 2.2:
'When the developer advises the landholder -' (Mr Blaikie) that,
' it is completed, but in any event not prior to the subdivided blocks of land being sold or otherwise allocated or, the budget allocated for the project being fully expended on the project and the developer notifying each of the parties that it no longer wishes to provide funds for that particular project, whichever first occurs.'
There is no information as to what happens if the respondent is informed that the contracting party no longer wishes to provide funds.
Clause 5 of the agreement discloses that there is project planning and that matters are in train.
5. PROJECT PLANNING
The parties hereto shall forthwith develop a plan with a view to co-ordinating the commencement of the Project and facilitate the efficient, economic and successful conclusion of the Project:
(“Project Plan”)
5.1 Project Plan Preparation
The Project Plan shall be initially prepared by the Project Manager and shall include:
A commencement date for each aspect of the Project, details for:
Surveying,
Civil engineering,
Planning approvals
Road works
Utilities installation
Work that is to be carried out, including but not limited to:
An estimated time for each aspect of the Project
A budget for each aspect the Project
An estimate of the gross return from the sale of subsequent blocks of land monitor as the Project progresses,
Details of each contractor and subcontractor, the nature of their work, quotes obtained
The Project Plan may be amended from time to time pursuant to the procedures set out herein.
The Developer shall give notice in writing to the Landholder within fourteen (14) day of any amendment to the Project Plan which may affect the overall budget by more than $50,000.00.
Should the Landowner disagree with the amendment to the Project Plan he shall give notice in writing to the Developer within fourteen (14) day of receipt of the amended Project Plan setting out fully those parts of the Project Plan that he disagrees with where upon:
The Developer and the landowner shall meet with in a period of fourteen (14) days with a view to resolving the disagreement, which meeting may be way of telephone hookup, but if such meeting is to be face to face then it shall be held on the Property unless agreed by the parties.
If the disagreement is not resolved within thirty (30) days of the date of the Landholder giving notice to the Developer then the Developer at its option may withdraw from the Project where upon the Landholder giving notice to the Developer then the Developer at its option may withdraw from the Project where upon the Landholder will refund to the Developer all money paid by the Developer in relation to the Project plus all sums that would have been due to the Developer had all subdivided blocks in the Project been sold at their asking price and the Landholder may at its option obtain finance from or enter into an agreement with any other party in relation to the Project.
The matters that are said to be ‘in train’ include: ‘surveying, civil engineering, planning approvals and roadworks as well as utilities installation.’ These include ‘[w]ork that is to be carried out, including but not limited to an estimate of time for each aspect of the project, a budget, an estimate of the gross return from the sale, details of each contractor and subcontractors and the nature of their works and quote obtained.’ Under this clause: the project plan may be amended from time to time pursuant to the procedures set out and the developer shall give notice in writing to the landholder (here the respondent) of any amendment to the project plan which may affect the overall budget by more than $50,000. If the landholder disagrees with the amendment to the project plan, he must give notice in writing to the developer within 14 days setting out those parts of the project plan that he disagrees with. In those circumstances, there shall be a meeting between the developer and the landholder with a view to resolving the disagreement, which may be held by telephone or any other meeting of the parties.
Under the same clause, if any disagreement is not resolved within 30 days of the date of the landholder giving notice to the developer, then the developer at its option, may withdraw from the project whereupon the landholder will refund to the developer all money paid by the developer in relation to the project plus all sums that would have been due to the developer had all subdivided blocks in the project been sold at their asking price, and the landholder may at its option, obtain finance from, or enter into any agreement with any other party in relation to the project.
Thus, if there is a disagreement between the developer and the respondent, the developer may withdraw and claim from the respondent the profit which it would otherwise have made if all of the subject subdivided blocks in the project had been sold at their asking price. There is no evidence of what the asking price may be. That is an extraordinarily onerous term. If it is implemented, the inevitable result is that the developer would seize the whole of the land and leave the respondent bereft. There is no evidence before me of anything done by the caveator that is connected to the claims under the caveat lodged. On balance, this is most likely to be the case because of the preliminary nature of this agreement and the other evidence before the Court.
Then in clause 6.2 of the agreement and following, the respondent undertakes to do the following:-
6.2    Supreme Court Action
The Landholder will do what is necessary and follow what legal advice may be given to him by his current retained solicitors and pay such moneys as may be necessary to limit any detrimental impact of the Supreme Court Action Project.
6.3    Contamination
The Landlord is solely responsible for the cost of removal, rehabilitation refurbishment or other necessary action to be taken in relation to any contaminated soil or other item on the Property. The Developer may assist in such remedial action but the cost of such will be separate and not a cost of the Project.
7.   UNDERTAKINGS OF THE DEVELOPER
7.1 Commencement of Works
The Developer shall commence the works on the Project pursuant to the Project Plan and shall carry out such works in a professional and competent manner, including but not limited to engaging, Surveyors, Civil marketers, builders, and such other trades people as may be require at the sole discretion to the Developer to undertake, carryout and complete the Project.
7.2 Provide Minutes of any Licensee
The Developer shall cause to be taken and provide to the Landholder within seven (7) days of the receipt or preparation of same by the Developer the minutes of all meetings it has with any third party in relation to any licence, other authorisations and permits for the Project or any matter incidental thereto.
7.3 Compliance with Laws
The Developer shall at all times ensure that the Landholder and the Developer comply with all laws and regulations which apply to the Project.
7.4 Notification of Progress
The Developer shall inform the Landholder and keep him updated as to the progress of the development of the Project at least on a monthly basis.
7.5 Standards to be Used
The Developer commits to implement all operations in strict accordance with normal professional practices and with all precautions required for the protection of the environment and respect of the ecology as part of the expense of the Project and in particular the Developer shall adhere to best current practice in relation to the Project.
7.6 Use of Funds
The Developer may at its sole discretion use the Project Funds as the Developer sees fit.
Referring to clause 7 and the content of the caveat, there is no evidence of the start of work and so the basis of the caveat is most likely unsustainable.
The Supreme Court action referred to in this agreement is the claim by Mr Chelliah. It has not been resolved. The detrimental impact has not been lessened. The respondent’s position is fraught. The respondent is plainly in breach of this clause. For the reasons earlier outlined, he suffered the judgment of Judge Bochner and his appeal has lapsed.
On any view, the Rimel contract is a very bad deal for the respondent, and I will develop other aspects of this deal as part of my decision later in these reasons. There is no evidence before me of anything done by the caveator sufficient to sustain this caveat. The evidence suggests that this caveat has been used as a form of device to avoid obligations to the applicant, however, I am not in a position where I may make any finding on that contention.
One of the terms of the proposed Rimel joint venture relates to finance. The term of the offer is subject to finance. An offer of finance has been made dated 16 October 2023 (Exhibit P7). The terms are:-
The amount of the proposed funding is $1,800,000. Interest at a rate of 15% per annum is charged and payable in advance. A higher rate of 30% is charged on default. Personal guarantees and indemnities by all directors are required. The borrower is required to pay the cost of the preparation of loan documentation, professional fees and other expenses in the amount of $5,500 and also to pay an establishment fee to Bellevue Finance in the amount of $33,000. These fees plus 12 month’s interest in advance and management payments totalling $269,000 are to be deducted from the loan amount. This leaves a loan amount of $1.571 million. The offer is then subject to Bellevue Finance's credit assessment and it is subject to other terms and conditions such as: the total combined mortgages not exceeding 65% of value, a satisfactory outcome evaluation; an agreement that as Bellevue Finance requires, there should be a revaluation; and lenders' solicitors to conduct and confirm due diligence over the contract of sale and being satisfied of the contract and the security given in relation to the contract of sale.
There are other terms. The document reserves the right to withdraw or amend this indicative offer at any time and the formal offer may take the form of a loan agreement entered into between the parties. It then states:-
'Furthermore, by accepting this indicative offer, you hereby charge your interest in any real property as set out above with the due payment of all monies, costs and fees that are payable and acknowledge that this charge irrevocably creates an estate or an interest in the real property entitling Bellevue Finance to lodge a caveat on the title.'
The charges upon the land

The evidence satisfies me that at least $1.6 million is required to discharge the AMP Bank debt as first mortgagee, the debt of Ms Marshall as second mortgagee, the debt of Mr Chelliah as the judgment creditor and then the other creditors. After payment of the fees and other expenses and the discharge of these secured and judgment creditors, there will be no funds for development which would require the availability of a separate large amount of capital. The respondent estimated this to be several hundred thousand dollars; I think that is a gross underestimate, although it is not possible to make any accurate estimate of these costs based upon the evidence. It is possible to say with confidence that the balance of about two hundred thousand dollars would be insufficient to fund the required work. So much is obvious from the terms of the offer made by other interested parties, especially Accord, which contains many pre-contractual steps to be completed before a commitment to a final contract. In my opinion, it is apparent that this proposal is not sustainable. So much is also obvious from the evidence given by the applicant about the work he has done to date. The interest rates and the fees structures are extraordinarily punitive, so also are the terms, including the irrevocable creation of an estate or interest in the real property merely by the execution of the documents.
Conclusion: the respondent was incapable of developing the land
I do not accept the evidence of the respondent that it was always his intention to develop the property and so he would never have entered into a contract of this nature with the applicant. I accept that over the years he has convinced himself that this is something he should do but such hopes, in my opinion, are mere gossamer and are transparently unreal. The impetus for this contract with the applicant was the pressure of the Chelliah debt; quite understandably Mr Chelliah was fed up and he would wait no longer.
I am satisfied at the time of the execution of the contract, the respondent completely understood the document he was executing was a contract for sale of land to which he bound himself and I am satisfied that he is not an unsophisticated person in property matters.
I refer to the respondent affidavit of 18 February 2024 ((FDN22) Exhibit D9) read into evidence and about which he was cross-examined. He has been involved in about 30 real property transactions, including sales, purchases, leases and other transactions connected with land. It is appropriate that I survey the evidence given by the respondent in relation to a number of matters. At the end of his cross- examination, a series of propositions was put to him that he had lied in his evidence. I will deal with those matters later in these reasons. I have earlier indicated that I am not prepared to accept the evidence given by the respondent as credible. The following discussion explains the basis upon which I have made that finding. I have made that assessment based upon the overall effect and credibility of the evidence given by the respondent.
The respondent said in cross-examination that although he had an email address of [email protected], he did not have an email or a computer. He was asked whether he had a computer and then he volunteered that he had an email address but it was not [email protected]. He said he only had a computer at the very early stages of owning the Angle Vale property, but he then said that he never sent or received emails. As far as he knew, he did not have a computer.[8] I am unable to accept this evidence. Exhibits P10-P13 are emails which have been admitted into evidence without objection. Exhibit P10 is an email from Adam Squires to the respondent of 25 February 2022. Exhibit P11 is an email Mr Blaikie to John Koutsoukos of 21 March 2021. Exhibit P12 is an email from Mr Blaikie to John Koutsoukos of 20 March 2021 and Exhibit P13 is an email from Mr Koutsoukos to Mr Blaikie of 10 August 2016. This evidence of the respondent is therefore demonstrably incorrect.
[8] T102.24; T103.22.
The respondent was then cross-examined about submissions that were made before Chief Judge Evans on the application to extend time for the removal of the caveat heard by his Honour on 5 January 2024. He agreed that in the hearing before the Chief Judge and on his instructions, his counsel informed his Honour that the respondent needed to move quickly as he was contracted to draw down a facility of $2 million dollars.[9] The respondent said that he had been somewhere in Kent Town to organise some finance but had never received any paperwork. He did not know whether he was going to borrow that money. It was all over his head. It was then put to him that what was said to the Chief Judge was not true. The respondent could only answer that he had seen someone about finance, he did not have any paperwork, he did not know if the money was to be drawn down and he does not know the source of this information.[10] This evidence, and the other evidence of the respondent satisfies me that what was said to the Chief Judge on 5 January 2024 was not accurate. It was also demonstrably incorrect. That information could only have come from the respondent. There is no credibility in the explanations given to me by the respondent.
[9] T106.10.
[10] T106.31-T107.31.
The respondent was then asked how long it would take to do the subdivision at Angle Vale.[11] He said that he would need to get the caveats off the title and he would need to execute a Land Management Agreement (LMA). He said that he was told that initially this would take about 18 months. It would take 6 months to get the approval and 12 months to do the other work necessary. Despite the land being rezoned since 2015, nothing has happened in relation to any subdivision in the eight years since. The respondent was challenged that in almost 9 years, nothing had occurred and there was no prospect of him achieving his desired goal for the land. He said, ‘No, not yet’.[12] That answer is not consistent with the view put forward by the respondent about the subdivision of his land.
[11] T108.26.
[12] T108.36.
The respondent was then taken to the judgment against him of Judge Bochner of 29 August 2023. He knew that the judgment was for the amount of $570,000 and that the order for payment of interest was in the amount of $300,000.[13] The respondent accepted that the judgment was in the amount of $870,000 plus costs. His view was that he did not accept the judgment. He also knew that there was a further $24,000 to be paid to Mr Chelliah taking the amount owed by him to almost $900,000. He was aware that the total debt was in the order of $900,000 but he does not ‘accept it’.[14] He is also aware that he is required to pay Mr Chelliah’s costs but he does not accept that judgment. He says it is all ‘not true’. He does not accept the reality of the situation and thinks that the decision of the Supreme Court is not fair or accurate.[15] He confirmed that the debt to AMP Bank as first mortgagee is about $300,000. The debt to the second mortgagee, Sue Marshall is in the order of $150,000. The debt to Mr Chelliah is in the amount of $900,000 plus costs. He knows that before executing any Land Management Agreement, he would have to deal with judgment and the mortgages.[16] He is demonstrably incapable of so doing.
[13] T109.19.
[14] T109.30.
[15] T112.21.
[16] T112.32- T113.12.
He was then taken to the letter from Bellevue Finance (Exhibit P7) that sets out the requirements for the interest rate and the fees associated with the provision of finance by Bellevue Finance.
The respondent said that he became aware that Mr De Angelis had been a bankrupt in first discussions with Mr Jelbert and Mr De Angelis in October 2023. He did not know that Mr De Angelis had not then been discharged from his fourth bankruptcy. Mr De Angelis told him that he would make about $15 million gross from the development.[17] He gave the respondent no basis for this estimate. The respondent said he always thought that he would make only about $6 million from the development.[18] He gave no basis for this estimate.
[17] T115.16.
[18] T115.28.
He was then shown Exhibit P1 at page 14, the contract for sale and purchase of land dated 18 September 2023. The respondent volunteered that he might recognise the document but does not think that he read the whole document.[19] He admitted that the offer of $3.5 million dollars was a fair and reasonable amount to accept.[20] He was able to form his own judgment about the value of the $3.5 million offer.[21] He recognised the document at Exhibit P1, from page 1. He recognised that it was a commercial contract and it had the emblem ‘REISA’ on it. He then volunteered that he did not know that this acronym stood for the Real Estate Institute of South Australia. He denied ever seeing contracts in that form in the past.[22] I am unable to accept that evidence. As I have earlier said, in his evidence, and in his own affidavit he refers to many contracts for the sale of his homes in Toorak Gadens, Hawthorn, Ashbourne, Strathalbyn and Croydon Park, all of which were purchased and sold upon his instructions. He agreed that he had also sold three properties belonging to his mother. He said that he did not read the sale contract for those houses. He subdivided a property in Woodville North and sold the subdivided properties for the highest possible price. He also bought and sold three commercial properties in Wingfield.[23]
[19] T116.10.
[20] T116.33.
[21] T117.8.
[22] T118.3.
[23] T118.7-T118.38.
I have earlier expressed a view that I am satisfied that the respondent is very experienced in purchases and sales of domestic real property, of three commercial properties at Wingfield and with the purchase and the subdivision of a domestic property. I am satisfied on the evidence that the respondent sold at least thirteen properties, both residential and commercial, prior to his purchase of the Angle Vale property.
In his evidence, the respondent agreed that his initials were at the bottom corner of each page of the contract, Exhibit P1, but he cannot now recall whether he looked at any of the words above the point at which he initialled those pages. He thought that the contract was different from what he had seen before, however, I am satisfied that he has previously been involved in executing contracts for both the sale and the purchase of real property and commercial properties. He said that he did not realise that he was signing a sale contract.[24] I am unable to accept that evidence. The document was plainly a sale and purchase contract. He had seen its form only about 8 weeks earlier. He also denied that he had seen an earlier form of this document on 17 July 2023 when it was brought to him by the applicant. He recalls having a conversation with the applicant about the sale of the property but then refusing that offer. He saw that the document that was given to him was a purchase contract and that he refused to sign it.[25] The contract that he is referring to, namely of 17 July 2023, is in largely identical terms and is an identical form to the contract that he signed on 18 September 2023. I am therefore unable to accept that evidence on that basis.
[24] T120.14.
[25] T121.10.
One of the reasons that he proffered about why he would not execute the contract was that he wanted to see what other offers were around in relation to the land. He said he was never intending to sell it. That was despite the fact that he was willing to sell the land in 2010 and in the years afterwards. He denied any intention to sell the land in 2014 and 2017. For the reasons that follow I am unable to accept that evidence; I think it is untrue.
I am unable to accept the evidence of the respondent that he did not realise he was signing a form of contract for the sale and purchase of land. He had already had a discussion with the applicant in July 2023, and the applicant had presented to him a contract in almost identical form, which he had refused. He understood then that the document proffered to him by the applicant was a contract for the sale and purchase of his land. He then said that he was only willing to sell the land in 2010, but not in 2014 or 2017.[26] It is difficult to make any sense of this evidence and it has no credibility.
[26] T121.17.
The respondent said that the applicant put the September contract to him on the basis that it would resolve the Chelliah debt. That debt was incurred when the respondent purchased a block of land in Hallett in the mid north of South Australia. He also borrowed money from Ms Sue Marshall for that purchase. There is no evidence of what happened to that land or why for example, security was not taken over that land by Mr Chelliah and Ms Marshall. In relation to the subject contract, the following exchange took place in the cross examination of the respondent:- [27]
QYou've initialled it and you've signed it but you did not read it.
ANo, because it was presented to me - if we do this contract it will solve the Chelliah thing.
QCan I just bite at that if I might. In a sense, of course, it would solve the Chelliah thing because once Chelliah had a certain time for the sale of the property, he knew that after 13 long years he would finally get paid.
AThis was never presented at a sales document.
QIt wasn't presented in any other way though, was it.
AIt was just presented as a contract.
[27] T123.1.
In the evidence, the respondent eventually agreed that the document was presented as a contract. And it is clear from this evidence that at the time, the respondent was aware of the pressure being brought to bear upon him and his resources by the claim of Mr Chelliah.
Perhaps having realised his error, the respondent then purported to reject his liability to Mr Chelliah. The following exchange took place in relation to the judgment of Judge Bochner:- [28]
[28] T126.15.
QGo to para.3, first paragraph. In the second sentence her Honour's reported the evidence that you approached Mr Chelliah to lend to you $150,000. You accept that.
ANo.
QYou don't accept that.
ANo.
QYou reject that, thank you.
XXN
QIn 2010 did you in fact borrow $150,000 from Mr Chelliah.
ANo.
QDid you tell Mr Chelliah that you were looking to sell the land at Angle Vale in 2010.
AOnce the government rezoned I was prepared to sale, I was going to move on.
QAnd you told Mr Chelliah that you expected to double your money in that process.
AYes.
QAnd you told him that if you doubled your money he should be able to double his money as well.
AYes, I gave him 100% interest, that's what you do if you've got a friend.
QThen next goes to para.4, you signed a loan agreement with Mr Chelliah.
Separately in his evidence, the respondent purported to deny any liability to Mr Chelliah because he transferred valuable cars to him purportedly in satisfaction of his liability. There is no evidence about the alleged value of a vehicle said to have been given by the respondent to Mr Chelliah in alleged discharge of this debt. It is known that Mr Chelliah had bought some of these cars in 2011 for $160,000.[29] There is no evidence that he did not pay for these cars. So much is obvious from the judgment of Judge Bochner. The respondent was then asked further questions in relation to the debt owed to Mr Chelliah.[30]
[29] T127.33.
[30] T129.22.
QI understand your position my question though was do you accept that Mr Chelliah continued to press between 2011 and 2023 for what he said he was entitled to.
AThe money had already been paid back. I'm not going to pay him twice.
QI accept that, I understand that.
HIS HONOUR
QListen to the question please.
HIS HONOUR:      Put the question again.
XXN
QI'm asking you to accept that irrespective of what you thought, Mr Chelliah was in fact telling you 'I want to be paid my money'.
AWell, he's wrong.
QBut he was doing that.
AHe's wrong.
AParagraph 4?
QYes, in February 2011, you signed a loan agreement with Mr Chelliah.
AWhere's that, I can't see that?
QParagraph, the words 'In February 2011 the parties signed a loan agreement'.
AThat's para.2, there's a 4 on the side.
HIS HONOUR:      If you need to approach the witness you may Mr Riggall.
XXN
QYou've found that now, Mr Blaikie.
AYeah, I see those little numbers.
QThe little numbers but in February 2011 you signed a loan agreement with Mr Chelliah.
AYeah.
QAnd you told him that you would repay the $300,000 on or before 15 November 2011.
AYeah well, it wasn't, it was only 135 he lent.
QTrue, but the repayment was to be by 15 November 2011.
AYes.
QAnd you intended to finance that repayment by selling that property for a profit.
ANo.
QYou didn't repay him by 15 November 2011, did you.
AI gave him an S2 Bentley to sell which he sold and I said you take 25 just give me the seven and then by Charles's, what he said in the Court case, he said that he bought the four motor vehicles that he asked me for security, he said he bought the four motor vehicles off    me for 160, so 160 and 25 meant that I had paid him what he lent plus 50,000 of the interest already at that stage.
In the context of those answers, the respondent then denied considering selling the land in the period between 2011 and 2023 in order to repay the debt to Mr Chelliah.[31] I reject that evidence. It is without any credibility. He agreed that he signed the authority to search,[32] but he cannot recall Mr Chelliah pressing for repayment of the debt. That is demonstrably not true. That was because, in his mind, he had already repaid the debt.[33] He then gave the following evidence:- [34]
[31] T130.17.
[32] Tab 6, Exhibit P2: T130.37.
[33] T131.7.
[34] T131.8 et seq.
QMr Chelliah had lodged a caveat on 1 November 2013.
AYeah.
QAnd you'd never challenged that caveat.
AI had already paid money by then in '11.
QIn fact that's not quite true, is it. In 2014 Mr Chelliah was pressing vigorously for the debt and you agreed to enter into a new loan agreement recording the terms of the debt outstanding at that time with Mr Chelliah, didn't you.
AI know he came in, yeah, did some paperwork and so on but in Charles's own words in the Court he said he bought those cars off me in 2011.
QI understand that but my question is -
AAnd that money went to paying off what he had lent me.
QSo let me try my question again. In November 2014 Mr Chelliah produced a further loan agreement for you to sign recording the terms of the debt that at that time as Mr Chelliah claimed it to be.
AYeah, as he saw it, yeah.
QAnd you signed that.
AYeah.
QThat ultimately was the deed relied upon by Judge Bochner to identify the true indebtedness between you and Mr Chelliah, wasn't it.
AI've got no idea what she took her things from, she obviously didn't take that he had been paid 160 in 2011.
QSo you accept that you signed the 2014 agreement, today, with Mr Chelliah. You accept you signed it.
AYeah.
QAnd you told her Honour you had signed it without reading it.
AWell, I didn't go all through it with him.
HIS HONOUR
QYou signed it without reading it, is that right.
AYeah, probably would have been.
XXN
QYou told her Honour that you shouldn't be bound by the terms of it.
ABecause he'd already been paid.

At [4.9] the learned author says:-
‘Another example, though in the context of a plaintiff alleging that the defendant had purchased property as his agent, is Cadd v Cadd.[100] The evidence showed that in a conversation between the parties, who were brothers, the words ‘I’ll buy the place for you’ and ‘you can have it as soon as you pay me what you owe me’ were used. The High Court held that, of themselves, those words were not sufficient to establish an implied agency; the phrases were open to more than one meaning, only one of which connoted an intention to constitute the defendant as the plaintiff’s agent.[101] In this respect Isaacs J remarked[102]:
If the employment were one of agency it would be remarkable that the agent should stipulate as to when his principal might have his own property, even though he were able to pay for it beforehand. It is not an unreasonable stipulation for the true owner, speaking to a struggling brother who he as wiling to befriend, and telling him that when he has succeeded in clearing off a minor existing obligation he may assume a heavier one’.
The purchase was conducted wholly in the name of the defendant, from which no indication of the existence of agency could be derived.[103] That the parties entered into an agreement under which the plaintiff was to farm the land (as ‘cultivator’) for the defendant (as ‘proprietor’) was further evidence that the parties had not intended an agency relationship. As such, the plaintiff’s own conduct was inconsistent with his allegation’.
[100] (1909) 9 CLR 171.
[101] Ibid 183 (Barton J) and 185 (O’Connor J).
[102] Ibid 188-9.
[103] Ibid 181 (Barton J).
In my opinion, the conduct of the respondent which I have canvassed in detail earlier in these reasons, was inconsistent with his allegation of any form of agency on the part of the applicant. I have accepted that it was arguable that during the period from 2007 to 2014 and up to when the rezoning occurred, actions were being taken by the applicant on behalf of the respondent that fell within the description of ‘agency’. I have also found that those activities were not undertaken by the applicant with an altruistic intention. I consider that the plain common sense and commercial reality of the matter is that the respondent was taking advantage of what was done on his behalf by the applicant to improve his own financial position. That is, he readily accepted whatever was being done on his behalf by the applicant because it strengthened his own position. I am also satisfied that from about 2014 onwards, the respondent was involved in fielding and dealing with offers that were being made to him from time to time for the sale of the property due to its increased value following the rezoning and the imminent completion of the Northern Expressway. That is not a criticism of the respondent but rather a reflection of the commercial reality of their positions. By no later than that time, any concept of agency between the applicant and the respondent was at an end. The respondent continued to negotiate with prospective purchasers, other than the applicant, for the sale and development of the property. All of this conduct is completely inconsistent with his allegation of agency. That allegation, for those reasons, fails.
There is then a pleading of unconscionable conduct which I have already dealt with and rejected. And there is then a pleading that the contract was terminated, which I will deal with later.
The contract and its enforceability
I turn now to the further matters for my decision, namely, whether the contract is enforceable and, if so, whether there has been any repudiation of it separately or any valid rescission of it. I have referred to the contract and the deposit paid. The amount of the deposit was $5,000. At first blush, it might be thought that this was a small amount of money in the background of the purchase price. However, the evidence before me discloses offers made under other proposed contracts for this land and under similar circumstances. On a review of these similar contracts and the commercial nature of this contract, in my opinion, it could not be said that the amount of the deposit was otherwise than within normal bounds. On this topic, the Court must be alert to and be aware of the complex commercial nature of these transactions and of the Court’s duty is to uphold parties’ bargains.
The development of broad acre land for housing (as an example) is now a very complex, time and money consuming and difficult process. This process and these requirements have evolved over time. Consequentially, the execution of contracts involving such projects have evolved such that time and opportunity must be given to purchasers to satisfy a list of requirements, as has been done here by the applicant. The completion of these steps requires significant time and the expenditure of considerable money, resources and energy. I have earlier set out the steps taken by the applicant in the due diligence process. It was necessary for him to retain a number of professionals at his cost, to receive and consider their advice, and to receive and consider the advice of other experts and professionals connected with the subdivision of the land.
The terms of contracts of this nature are, therefore, ‘cut to the cloth’ of the requirements of the development. These are all matters for the commercial decision of the parties. Without more, a Court would not interfere with the bargain of the parties. I am satisfied that the parties were satisfied with their bargain and the amount of the deposit was, therefore, appropriate.
The date of the contract and the settlement date
The settlement date in clause 8 is specified as 17 July 2025. Another condition allows for 180 days for due diligence. The date of the contract is 18 September 2023, but the settlement date is calculable from 17 July 2023.
Despite the submissions to the contrary, I am unable to identify any inconsistency between those dates and the operation of clause 8. It is also suggested that there is an inconsistency between the calculation of the expiry of a term of 180 days. Is it to be calculated from the September or the July date? This is an irrelevant question. The settlement date is clearly stipulated as 17 July 2025. The applicant does not and cannot complain that there should be a later settlement date of September 2025.The question does not arise because the applicant has given notice of the completion of due diligence and has bound himself to a settlement on 17 July 2025. There is also a second alternative ticked in clause 8 which provides for the settlement date to be within an unspecified time of settlement of the special conditions. I consider this to be an inoperable clause as the period is earlier specified.
Again, at first blush 17 July 2025 may have seemed a long time in the future but the Court is again required to recognise that people of commerce order their affairs to suit their purposes commercially. No submission was put that this settlement date was so far into the future that the contract was, thereby, rendered unenforceable. I have already canvassed the tasks that had to be completed by the applicant in the 180-day period. They are set out in paragraph 9 of the affidavit of the applicant made on 28 December 2023 which is in evidence. This is an extraordinarily large amount of work.
The special conditions: Finance
I turn then to the special condition that the contract is subject to finance. It provides as follows:-
A lender is not named nor the date upon which the loan is to be granted. The completed detail only specifies the amount of a loan of $2 million and a term of 15 years.
The case and the evidence of the applicant is that no reliance is placed upon this term. It is not in dispute that the applicant has also now given notice to the respondent that the due diligence has been completed within the 180-day period. Therefore, the date for settlement is 25 June 2025. Also, the contract is unconditional and the amount of the deposit has been tendered.
The ‘finance clause’ as it appears in the contract operates for the benefit of both the vendor and the purchaser. If a party fails to satisfy a ‘special condition’ under clause 14.2, 14.3 and 14.3.1 of the agreement, either party may terminate the agreement. A failure to satisfy a term or a breach by a party of a term is deemed an event of default under clause 14.3.2 and compensation as prescribed under clause 15 becomes payable. There are also the usual resale and damages provisions following termination.
The special conditions clause provides:-
14. Special Conditions
14.1   This Agreement is subject to the satisfaction of the Special Conditions (if any).
14.2The party required to satisfy a Special Condition must use its best endeavours to do so on or before the date specified in that Special Condition (or if not specified, within twenty-one (21 days) of the date of this Agreement).
14.3   If a party fails to satisfy a Special Condition then:
14.3.1if the party required to satisfy the Special Condition complies with clause 14.2 and such other terms and conditions as specified in the Special Condition, then either party may terminate this Agreement upon written notice to the other party; or
14.3.2if the party required to satisfy the Special Condition fails to comply with clause 14.2 or is otherwise in breach of such other terms and conditions specified in the Special Condition, then such an event will be deemed a default under this Agreement and:
(a)     if the Purchaser is in default, clauses 15.3 and 15.4 will apply; or
(b)     if the Vendor is in default, clauses 16.1 and 16.2 will apply.
14.4If this agreement is terminated pursuant to clause 14.3.1, then any monies paid by or on behalf of the relevant party under this Agreement shall be refund to that party.
14.5   If this Agreement is terminated pursuant to, or as a result of clause 14.3.2 then:
14.5.1        if the Purchaser is in default, clause 15.8 will apply: or
14.5.2        if the Vendor is in default, clause 16.2 will apply.
It is not in dispute that the finance clause is incomplete. The material in the clause does not specify: the date on or before which the named lender is to approve the loan and the commercial interest rate; and the lender is not named, although it is accepted in many commercial transactions the name of a willing lender does change. Notwithstanding clauses 14.1-14.5 and following, the terms of the contract do, in the usual course, create rights and obligations upon both parties when considering the operation of such a clause. In the usual course, the subject to finance clause provides the purchaser the means to avoid liability under a contract for sale and purchase of land. Conversely, if it is necessary to obtain a loan to make that purchase, it also protects the vendor by preventing the purchaser from resiling from the contract for reasons which are not concerned with the availability of finance. That is the proper understanding of the whole of the operation of clauses 13 and 14 of this contract.
The decision of the High Court in Meehan v Jones concerned a contact for the sale of land on which an oil refinery had been built. [104] The contract contained a special condition:-
‘This contract is executed by the parties subject to the following:-
a. The purchaser or his nominee entering into a satisfactory agreement or arrangement with Ampol Petroleum Ltd for the supply of a satisfactory quantity of crude oil…;
b. The purchaser or his nominee receiving approval for finance on satisfactory terms and conditions in an amount sufficient to complete the purchase hereunder…’
[104] (1982) 149 CLR 571.
The contentions of the respondent were that:-
(1) A contract which reserves to a party a discretion or option whether he will or will not carry out what appears to be a promise on his part is void for uncertainty;
(2) The contract is expressed in language which is so obscure and incapable of any definite or precise meaning the Court is unable to attribute to the parties any particular contractual intention is void for uncertainty; and
(3) There can be no concluded bargain if a vital matter has been left to the determination of one of the parties.
It was argued that finance on satisfactory terms and conditions was too uncertain and indefinite to admit of a precise meaning. On this argument, the Court could not decide what finance was contemplated by the contract as being satisfactory. Mason J at pages 587-588 rejected these arguments and decided that a contract for the purchase of real estate which:-
‘…contains a condition that the purchaser or his nominee received approval for such finance so that the deposit is to be refunded to the purchaser if the condition is not satisfied, there could be no doubt that ‘satisfactory’ ordinarily means satisfactory to the purchaser or his nominee.
At pp 589, Mason J held that:-
‘To say that clauses of this kind are void for uncertainty is to ignore the traditional doctrine that Courts should be astute to adopt the construction which will preserve the validity of the contract. Moreover, it is a draconian solution – one which is best calculated to frustrate the expectations of the parties, because in an increasing number of cases purchasers depend upon the provision of finance in order to complete. The problems of uncertainty can be avoided by drafting a clause which specifies the details of the finance to be sought, but such a clause by reason of its greater precision, may be too inflexible in its operation’.
Thus, the purchaser could decide whether the terms upon which finance was available were satisfactory. It was not necessary, to decide whether the test as to his satisfaction was subjective or objective. Irrespective, the clause is not void for uncertainty. It is necessary only for the purchaser’s obligation to act at least honestly and perhaps reasonably in considering the finance available to be satisfactory. That does not mean that, in that instance, a party had a discretion as to whether or not to perform.
Referring again to the contract for sale and purchase of land (Exhibit P2, page 1 et seq) I am satisfied that no lender is specified. No date upon which on or before which the lender is to approve the loan is specified. As I have described, only the amount of the loan and the term of the loan is specified. The interest rate is also not specified.
In my opinion, because of the failure to complete the whole detail within the subject to finance clause, there is consequently no protection from that clause to the purchaser and the clause creates no ‘road block’ for the vendor. In my opinion, the operative clauses of the contract are the quantum of the consideration, the deposit, the settlement date, and the due diligence clause. The subject to finance clause does not add to, nor detract from the respective positions of either party. It has no operative effect. It gives no protection to the purchaser and it does not detract from the position of the vendor.
The alleged rescission
On Friday 15 December 2023, a letter was sent from the solicitors for the respondent to the applicant directly (Exhibit P2, page 75). It alleges that the applicant only purports to have a claim against the property. In the third paragraph of the letter, the author, a solicitor, refers to the fact that he has been given a contract which it is alleged, embodies terms of a contract to sell the property executed by his client. He then alleges that the document is ‘unsigned, incomplete’. He alleges that it is erroneous in essential terms and is legally defective. He then alleges that the respondent has instructed that the applicant said to the respondent words to the effect that he had signed a version of the document but had not provided the respondent with a copy. These sentences then follow:-
‘…Given your actions in relation to the property, if it is that you have a signed copy, I am instructed to give notice any contract on written terms is rescinded’.
The document, at its highest, requires you and/or nominee to pay to Mr Blaikie a deposit. To date, you and/or a nominee has failed to perform on that precondition, and with that, if there is a contract, you are in breach and my client is entitled to rescind. Furthermore, in relation to the purported purchaser, it appears you have nominated a party, and with that I have extended this correspondence to the registered office of ATSTAR Capital Pty Ltd…’
It is clear that the contract to which the solicitor makes reference is a contract between the respondent and ATSTAR Capital Pty Ltd. That is not the contract which is the subject of this claim. The instructions given to the solicitor by the respondent are therefore in error and so, the letter of 15 December 2023 was written by the solicitor under a misapprehension of facts based upon the instructions that he had received from the respondent. The respondent has therefore mistaken the position and appears to have informed his solicitor that the contract he signed was with a purchaser called ATSTAR Pty Ltd. That is not the contract under consideration here. In those circumstances, whatever might have been the intended effect of this letter, it is not a letter which validly or otherwise rescinds the existing contract. It is of no effect.
A response was made to that letter by a letter from the applicant of 28 December 2023 (Exhibit P2, page 76). In that letter the applicant identifies that the contract which is referred to in the solicitor’s letter is a different contract. He then attaches a copy of the signed and witnessed contract and confirms that a copy of that signed contract was delivered to the respondent shortly after its execution.
He confirms that the respondent had no basis for the allegation of any breach of contract. He also confirms that he has not nominated any other party as purchaser.
The next paragraph of the letter reads as follows:-
‘I have now completed my Due Diligence under Special Condition (1) on page 6 of the Contract and give notice that the condition has been satisfied and I am ready, willing and able to pay the deposit of $5,000. Please instruct as to payment details.’
In evidence, the applicant said that he had received no response to this letter seeking identification of the account into which the deposit should be paid. In order to preserve the position, he has paid the money into his solicitor’s trust account.
All contractual conditions are satisfied
In those circumstances, and when reference is made to the contract, a number of things follow. First, the due diligence special condition has been satisfied. Second, that due diligence special condition has been satisfied within the period of 180 days allowed under the term of the contract. This renders otiose any discussion about the date of the contract. The date of this notice is within 180 days of the July date and the September date on the contract. The settlement date becomes 17 July 2025. The third, is that the amount of the deposit of $5,000 is due and payable. The evidence satisfies me that the purchaser has taken every step possible to enable that amount to be paid, but he was rebuffed by the respondent who has refused to identify the account into which the money is to be paid.
The fourth, is that the settlement date of 17 July 2025 is now the date for settlement for the contract for sale and purchase of the land at which time there will be settlement of the contract. Therefore, the contract now operates in an unconditional way, the vendor is bound by the contract as is the purchaser. In my view, the applicant could do no more than proffer the deposit when notifying the respondent that the due diligence clause was satisfied and the contract had become unconditional. There was no occasion of any form of repudiatory conduct by the applicant. In those circumstances, I am satisfied that the applicant is entitled to the orders sought on the Points of Claim.

The Court makes orders as follows:-
1.A declaration that the Applicant Mr John Koutsoukos has a valid contract for the sale and purchase of land dated 18 September 2023 comprising the document at pages 1-15 inclusive of Exhibit P2 in respect of the land comprised in Certificate of Title Register Book Volume 6254, Folio 577.
2.An order for specific performance of the contract described in paragraph 1 hereof.
3.The Court will hear the parties further in relation to consequential orders including in relation to settlement of the contract, costs and other orders.