Lacey v Crompton

[2001] NSWCA 144

CITATION:	Lacey v Crompton [2001] NSWCA 144
FILE NUMBER(S):	CA 40046/00
HEARING DATE(S):	15/05/01, 16/05/01
JUDGMENT DATE:	29 May 2001
PARTIES :	Gillian Lacey v Alan Crompton
JUDGMENT OF:	Stein JA at 1; Hodgson JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	9327/95
LOWER COURT JUDICIAL OFFICER :	Mahoney DCJ

COUNSEL:	In Person (Appellant) L McCallum/P M Sibtain (Respondent)
SOLICITORS:	In Person (Appellant) Mallesons Stephen Jaques (Respondent)
CATCHWORDS:	APPEAL - Court of Appeal - appeal on fact - approach of an appellate court - dispute as to credibility and factual findings of trial judge - nothing to show trial judge failed to use or palpably misused his advantage - evidence of respondent preferred. ND
CASES CITED:	Devries v Australian National Railways Commission (1993) 177 CLR 472 SS Hontestroom v SS Sagaporack [1927] AC 37 Abalos v Australian Postal Commission (1990) 171 CLR 167
DECISION:	Appeal dismissed with costs.

CA 40046/00

DC 9327/95

STEIN JA

HODGSON JA

IPP AJA

Tuesday 29 May 2001

GILLIAN LACEY v ALAN CROMPTON

Facts:

The appellant sued the respondent, her solicitor, for breach of contract and professional negligence relating to a series of conveyancing transactions dating from 1989. The background facts to this appeal have given rise to a number of other actions and in all of these the appellant has been an unrepresented litigant.

The appellant owned a property on Dangar Island which was encumbered with a mortgage to St George Building Society. She intended to sell this property and use the proceeds to finance the purchase of a property in the Bucketty upon which she intended to build a yurt. However these transactions were never finalised.

In the course of her plans to move from Dangar Island to Bucketty the appellant re-financed the St George mortgage by taking out a loan with the Bank of New Zealand for $100,000. The appellant intended this mortgage to be “portable”, in that the security would be transferred to her new property upon purchase. She retained the respondent to act for her in relation to this mortgage. However the desired “portability” of this mortgage did not eventuate.

The appellant took out a further mortgage from the Commonwealth Bank for $50,000 to purchase land at Bucketty. The respondent also acted for the appellant in this mortgage and the purchase of the Bucketty land.

In relation to the sale of the Dangar Island property there were three prospective purchasers and contracts were exchanged with the Haydens. The respondent represented the appellant in these transactions. There were disputes as to the content of the special conditions appurtenant to this contract, in particular the appellant’s requirement that she remain in the property for two months after settlement. Due to the problems with the special conditions the sale was never finalised and the property was eventually sold by BNZ as a result of the appellant’s default in mortgage repayments.

As a result of the sale of the Dangar Island property by BNZ the appellant was unable to afford the repayments on the Commonwealth Bank mortgage over the Bucketty property and that Bank brought bankruptcy proceedings against her. She has lost all her assets.

The appellant sued the respondent for breach of contract and professional negligence in relation to his conduct of the above transactions. The matter was resolved in favour of the respondent at trial and the appellant appeals from those findings.

HELD
Approach of appellate court in appeals against factual findings
(i) Per Ipp AJA, Stein JA and Hodgson JA agreeing

Where, as was the case in this appeal, there are challenges to the factual findings of the trial judge, those findings may only be overturned where it can be shown that the trial judge failed to use or palpably misused the advantage of having seen the conduct of the witnesses at trial. It was not established in this case that the trial judge so erred, therefore his findings as to various facts and the credibility of the witnesses stand.

The BNZ portable mortgage
(ii) Per Ipp AJA, Stein JA and Hodgson JA agreeing

The appellant alleged that the respondent breached his duties by failing to advise her that the BNZ mortgage lacked the “portability” requirement that she had sought. However, the instructions given by the appellant were too vague and uncertain to require the respondent to verify whether the mortgage contained a portability clause.

The Bucketty land
(iii) Per Ipp AJA, Stein JA and Hodgson JA agreeing

The appellant instructed the respondent to exchange contracts for the purchase of the Bucketty land prior to the completion of the sale of the Dangar property. These instructions were made despite the respondent’s warning as to the danger of such a course and his advice to the contrary. It was argued that the contract did not reflect the appellant’s instructions as to date of settlement, however, the respondent’s evidence that his instructions were changed by the appellant is to be accepted based on the general credibility findings of the trial judge.

The sale of the Dangar property and Special Condition 7
(iv) Per Ipp AJA, Stein JA and Hodgson JA agreeing

The appellant exchanged contracts for the sale of the Dangar property with the Haydens. She required in that contract a clause to the effect that she was able to remain in the property for two months after the settlement of the sale in order to give her time to finalise building the yurt and to move herself and her animals. A clause to this effect appeared in earlier drafts of the sales contract to different purchasers. The appellant alleged the respondent was in breach of his duties because Special Condition 7 was changed from the above two month clause to instead contain a fixed date upon which the property was to be vacated. The evidence does not support the appellant’s views as to what her instructions were. Rather there is support for the respondent’s contention that he was instructed to remove the two month clause and replace it with the fixed date clause. In the circumstances where there was a direct conflict in the evidence of the parties the evidence of the respondent was preferred by the trial judge and there was no error demonstrated on his part in relation to this finding.

(Devries v Australian National Railways Commission (1993) 177 CLR 472 applied)

The advice given in connection with the Dangar property
(v) Per Ipp AJA, Stein JA and Hodgson JA agreeing

There was a dispute in relation to the settlement of the sale of the Dangar property involving allegations that the respondent breached his duties by failing to take proceedings to rectify the contract and by failing to send the Haydens a valid Notice to Complete. The respondent was however justified in not attempting to obtain rectification of the contract as there was little or no evidence to support the appellant’s contention that there had been agreement to the two month clause. Further, the respondent advised the appellant as to the Notice to Complete and sought her specific instructions on this matter, however no such instructions were received. The appellant’s arguments as to the respondent’s advice in these matters fail.

The Bucketty shares
(vi) Per Ipp AJA, Stein JA and Hodgson JA agreeing

The appellant further alleged that the respondent breached his duties in relation to the Commonwealth Bank mortgage over the Bucketty property. Upon purchase of the Bucketty property the appellant became entitled to 100 shares in Burralong Valley Limited (BVL), owner of the common property. She alleged that the respondent breached his duties by failing to send these shares to the Commonwealth Bank to enable a mortgage over that share, however, on the evidence the respondent did send the shares to the Bank and further there were no instructions as to the need for a mortgage over the share. The Bank later refused to agree to the sale the Bucketty property because the appellant refused to allow the Bank to retain the proceeds of that sale. Instead the Bank brought bankruptcy proceedings against her. The claims in respect of this aspect fail.

The appellants further argument as to the respondent’s lack of advice about the articles of association of BVL was not pleaded at trial or supported by any evidence.

(1993) 177 CLR 472

[1927] AC 37

(1990) 171 CLR 167

ORDERS

1. Appeal dismissed with costs.

CA 40046/00

DC 9327/95

STEIN JA

HODGSON JA

IPP AJA

Tuesday 29 May 2001

GILLIAN LACEY v ALAN CROMPTON

JUDGMENT

1    STEIN JA: I agree with Ipp AJA.

2    HODGSON JA: I agree with Ipp AJA.

3    IPP AJA:

An appeal on fact: the approach of an appellate court

4    The appellant is an unrepresented litigant. She sued the respondent, a solicitor, for damages for breach of a contract of retainer between them and breach of his duty of care under the general law. Her action in the District Court was dismissed by Mahoney DCJ and she appeals against this decision.

5    In essence, the appeal challenges factual findings made by the trial judge. Accordingly, the well-known principles expounded in Devries v Australian National Railways Commission (1993) 177 CLR 472 apply. In this case Brennan, Gaudron and McHugh JJ said at 479:

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’”.

6    The way in which this principle is to be applied in practice can be seen from the next paragraph of their Honours reasons where they said:

“The evidence of the plaintiff was not glaringly improbable. Nor was it inconsistent with fact incontrovertibly established by the evidence. …The learned trial judge dealt in detail with the inconsistencies between the plaintiff’s evidence and his out-of-court statements. No ground exists for concluding that the judge failed to use or palpably misused his advantage”.

7    The reference to a judge failing to use or palpably misusing his advantage is derived from Lord Sumner’s remarks in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47 where the following was said:

“Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone”.

8    In Abalos v Australian PostalCommission (1990) 171 CLR 167 McHugh J at 178 referred to Lord Sumner’s remarks and said:

“Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied ‘that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion’”.

His Honour reiterated at 179 that:

“[W]hen a trial judge resolves a conflict of evidence between witnesses, this subtle influence of demeanour on his or her determination cannot be overlooked.”

9    Ordinarily, it would be unnecessary to set out these well-known authorities, particularly as, during the hearing, they were carefully explained to the appellant by the presiding judge. Nevertheless, although the appellant said she understood them, it was manifest from the way in which the appeal was argued over a period of two days that she had difficulty in comprehending their significance.

10    It is, I think, again necessary to say that the mere existence of evidence (and even a considerable body of evidence) at the trial in support of the appellant’s case, does not alone entitle her to succeed on appeal. It is also futile to point to minor factual errors made by the trial judge which can have no bearing on his overall credibility findings. For the appeal to succeed, it must be shown that the trial judge failed to use or palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable.

11    In large part the trial was a credibility contest between the appellant and the respondent. Although a mass of documents were tendered, few played a role of fundamental significance. Mahoney DCJ found that:

“By and large, … where the evidence of the [appellant] and the [respondent] are in conflict I prefer that of the [respondent] in almost every respect”.


Due weight, in accordance with the authorities, has to be given to this finding.

The appellant an unrepresented litigant

12    The difficulties an unrepresented litigant has to face are often manifold and are exacerbated when the trial is lengthy and complex. The trial of the appellant’s action lasted nine days and the appeal two. The trial judge plainly assisted the appellant as far as he was able within the confines of his judicial duties. Importantly, he allowed the appellant to present arguments on some issues that had not been properly pleaded or pleaded at all. He assisted her in getting her evidence out. He displayed considerable patience. He did his best to ensure that the appellant was not prejudiced by her lack of legal representation.

13    The appellant did not come before this Court entirely without experience in the forensic arena. The series of transactions which gave rise to this appeal has given rise to at least three other actions which have been litigated and one other has also been the subject of a judgment of this Court.

14    As Mahoney DCJ observed, the appellant is a mature articulate person who is “rarely lost for a word”. She has obviously taken considerable trouble in an attempt to understand the relevant legal principles.

15    A reading of the transcript of the proceedings below reveals that the appellant had a good grasp of the issues and cross-examined with persistence and some shrewdness. She prepared for this appeal with thoroughness and presented her argument with ability.

16    For the reasons that I express below, I consider that the appeal must be dismissed. I do so, basically, on the ground that, intrinsically, there is no merit in the appellant’s case. Her lack of legal representation has no bearing on the result.

The main issues

17    In early 1989 the appellant owned a house and land on Dangar Island (the “Dangar property”). The land was encumbered by a mortgage in favour of St George Building Society. At that time the appellant assessed the value of the Dangar property as being between $185,000 and $205,000. The amount owing to the St George Building Society was about $75,000. The appellant was working at the time as a bookkeeper and her gross income was about $35,000. She lived in the Dangar property together with several animals, including a multitude of cats and ducks.

18    By early 1989 she had decided to sell the Dangar property and purchase a piece of land at Bucketty (the “Bucketty land”) on which she intended to construct a yurt in which she wished to reside. She thought the Bucketty land would cost her about $50,000 and the cost of constructing the yurt would be $55,000. She believed that if she sold the Dangar property, bought the Bucketty land, and constructed the yurt, she would have a place to live with her animals and have about $85,000 over which she could use for her own purposes.

19    During the course of 1989, the appellant replaced the St George Building Society with a mortgage of $100,000 in favour of the Bank of New Zealand (“BNZ”). She entered into a contract to sell the Dangar property to a Mr Hayden. She entered into a contract to purchase the Bucketty land. To assist in the financing of the latter transaction, she mortgaged the Bucketty land to the Commonwealth Bank. In all these transactions she retained the respondent as her solicitor to assist her.

20    In the result, the sale of the Dangar property to Mr Hayden was never completed. The Dangar property was sold by the BNZ and bought by Mr Hayden for a lower sum than he agreed to pay the appellant. The appellant could not afford to pay the instalments under the mortgages to the Commonwealth Bank, which sold the property in execution. The appellant lost all her assets and was not able to retain anything of value.

21    She asserts that the respondent is responsible for her loss and claims damages from him. She claims that he breached the contract of retainer and was otherwise negligent under the general law. He denies these allegations. As mentioned, Mahoney DCJ dismissed her claims.

22    The appellant’s contentions (extracted from the appellant’s notice of appeal) in the form of issues on appeal, are as follows:

(a) The respondent, in breach of his contractual duties or duty of care, failed to advise her that the terms of the mortgage offered to her by the BNZ were not in accordance with the terms she had sought. She submitted that Mahoney DCJ wrongly found that the respondent owed her no such duty.

(b) The respondent breached his contractual obligations or duty of care by failing to comply with her instructions to insert in the contract with Mr Hayden a term entitling her to remain on the Dangar property for two months after settlement. She submitted that Mahoney DCJ wrongly found that she had given no such instructions.

(c) Even if the appellant had not given any such instructions, the respondent, in breach of his obligations or duty of care, failed to advise her that she should not agree with Mr Hayden to vacate the Dangar property on 8 December 1989. The appellant submitted, in effect, that Mahoney DCJ had failed properly to deal with this argument.

(d) The respondent should have advised her timeously to take action to ensure that settlement of the Dangar property sale contract be effected as soon as possible, or he should have advised her to take steps to have that contract rectified. In breach of contract or duty, he did none of these things. She again, submitted, in effect, that Mahoney DCJ had failed properly to deal with this argument.

(e) The appellant was entitled to a certain share in common property in Bucketty in consequence of her purchase of the Bucketty land (“in the Bucketty share”). She submitted that the respondent, in breach of contract or duty, failed to deal with that share in an appropriate way and this caused the Commonwealth Bank to act or fail to act to her prejudice. She also submitted that the respondent, in breach of contract or duty, failed timeously to give her the articles of association of Burralong Valley Ltd (“BVL”) a company that had certain rights in regard to Bucketty and to the shares in which she had become entitled. She contended that in consequence she acted to her prejudice. She once more submitted, in effect, that Mahoney DCJ had failed properly to deal with these arguments.

23    In dealing with these issues I shall first set out the relevant facts more or less chronologically. Many arguments of the appellant were directed to factual matters that had no, or no significant bearing on the issues raised by the notice of appeal, or her written submissions, or any issue capable of affecting the overall result of the case. I shall only refer to the appellant’s arguments directed to the issues properly raised on the appeal and to those facts that are materially relevant to those arguments.

The portable mortgage and the purchase of the Bucketty land

24    In January 1989, the appellant instructed the respondent to act as her solicitor in regard to a proposed sale of the Dangar property to a Mr Bryan. According to the appellant, she told the respondent when so instructing him that she needed to rent the Dangar property or live in it after completion while she was building her new home.

25    Early in January 1989, the appellant learned from a neighbour that the BNZ was marketing what she described as a “portable” mortgage. The appellant understood a portable mortgage to be a mortgage registered over one property which could be transferred at the mortgagor’s option to a new property subject to the amount being lent on the new property being reduced, if necessary, proportionately to the value that the new property bore to the previously mortgaged property. The appellant thought that it would be a good idea for her to re-mortgage the Dangar property with a BNZ portable mortgage so that she could be assured of a mortgage over the Bucketty land when she bought it. She also wished to increase the amount of her borrowings and thought that she could do that at the same time.

26    Accordingly, on 16 February 1989, she applied to the BNZ Bank for a mortgage that was described in the application form as a “Smarter Mortgage”. On the application form, against the words “Type of finance you require”, the appellant wrote “either temporary increase of credit limit or re-finance present”. Against the words “Do you intend to occupy the property?”, the appellant wrote “mortgage to then be transferred to new property when present property sold”.

27    On the application form the appellant valued the Dangar property at $185,000 and recorded her liability under the existing mortgage as being $75,000. She did not state in the application form the amount of the new loan required.

28    In a letter to the BNZ which accompanied the mortgage, the appellant drew attention to the fact that she had not inserted the amount she required. She stated that she needed an additional $15,000 “to use” (after paying off the existing mortgage). She said that the cost of the property she intended to acquire would be $50,000 and with the costs of building the new house, which she said was to be a yurt, the total cost of the new property would be $90,000 “in all”. She stated that she hoped to have her plans approved before the Dangar property was sold and she needed access to $10,000 to enable her to achieve that. She said:

“When the house is delivered to site and erected I have to pay the balance but that won’t be until my present house is sold. It takes about a week to erect the house and then the bathroom and kitchen have to be fitted out - I have allowed 6 weeks in all for this and that is why I need the money before I sell so that preliminary work can be started before the ‘settlement’ period or I’ll have nowhere to live!”

29    On 2 March 1989 (as is borne out by the respondent’s file note) the appellant instructed the respondent to act on her behalf in regard to her purchase of the Bucketty land (the land was described as Lot 33 Burralong Valley). There is no evidence of any special instructions having been given to the respondent in this connection.

30    According to the respondent, on 20 March 1989 the appellant first instructed him to act on her behalf in regard to the cancellation of the St George’s mortgage and the registration of the BNZ mortgage. The appellant disputed the date of the instructions, saying that it was either late February or early March, but little turns on that.

31    When or shortly after receiving the instructions, the respondent was also given a bundle of documents including a copy of the application form signed by the appellant and her letter to the BNZ. He testified that he was informed by the appellant that these documents were for his information and for his file.

32    The respondent testified that he understood from the instructions he was given by the appellant that she was requesting him as a solicitor to act for her in effecting the settlement of the mortgage loan and doing all the conveyancing that was necessary. He testified that the appellant said to him:

“I have a current mortgage with St George Building Society Limited. I wish to re-finance that mortgage through the Bank of New Zealand. The principal sum is to be $100,000. I am doing this because I require extra cash. The property to form the security for the loan will be my Dangar Island property”.

33    According to the respondent, he read the documents the appellant had given him concerning the BNZ mortgage only in cursory fashion because “they were simply for my information and for my file”.

34    On 22 March 1989 the BNZ advised the appellant that her application for a Smarter Mortgage with a limit of $100,000 had been approved.

35    On 29 March 1989 the appellant wrote to the respondent confirming that she would like him to exchange contracts on the Bucketty purchase “even though my sale of the Dangar Island house is not complete”. Her letter stated:

“I understood the contract to read settlement would be in six months or when I sell the Dangar house and that’s OK by me”.

36    The respondent testified that he told the appellant that it was dangerous for her to commit herself to a contract for a purchase of the Bucketty land in a situation where she had not yet exchanged contracts on the Dangar property and where she was relying on the proceeds of that sale to meet, at least in part, her commitments under the purchase contract. Mahoney DCJ accepted this evidence. Applying the principles laid down in Devries v Australian National Railways Commission, the mere fact that the appellant gave different testimony does not entitle this Court to reverse his Honour’s decision.

37    The appellant did not accept the advice the respondent so gave her.

38    According to the appellant, she did not believe that there was any risk to her in committing herself to the purchase of the Bucketty land when she had no buyer for the Dangar property. She said that she understood that under the Bucketty land purchase contract she would only have to pay for Bucketty when she sold the Dangar Island property.

39    The respondent accepted that the appellant first instructed him that the Bucketty contract was to contain a clause to provide for settlement within six months or on settlement of the sale of the Dangar property. This indeed is what is stated in the appellant’s letter of 29 March 1989. Thereafter, however, according to the respondent, the appellant gave him different instructions. She instructed him that she would agree to settle the Bucketty purchase six months after the contract was entered into, and that settlement should not be dependent in any way on the settlement of the Dangar property. The respondent said that he warned the appellant against taking this step but she rejected his advice and he drew up the contract as she had instructed.

40    The appellant did not testify that she did not read the Bucketty contract before she signed it or that she did not understand that, when she signed the contract, that it provided for settlement six months from the date of exchange of contracts. In these circumstances, and having regard to the general credibility finding by Mahoney DCJ, the respondent’s evidence on this issue must be accepted. In any event, this particular provision of the Bucketty contract was not the subject of any cause of action relied on by the appellant or any specific ground in the notice of appeal. I refer to it merely as background.

41    By letter dated 24 April 1989 the vendors’ solicitors confirmed that settlement of the Bucketty purchase would be six months from the date of exchange of contracts. This is the source of the appellant’s first main complaint.

42    On 4 May 1989 the BNZ mortgage was settled. The mortgage contained no reference to “portability” in the sense understood by the appellant. The respondent did not give any advice to the appellant in this respect.

43    In cross-examination the appellant put to the respondent that, in the light of the instructions she had given him concerning the BNZ mortgage, he should have read the mortgage and advised her that what she had requested (namely the condition as to portability) was not in the mortgage document. The respondent replied:

“You had not instructed me to seek or to ensure that anything in your Bank of New Zealand mortgage provided anything in the form other than what was approved”.

He later repeated that the appellant had not instructed him:

“to ensure that any mortgage terms that might be approved would conform with prior documentation that you indicated to me at the time you were giving me for my information and for my file”.

44    I shall explain my conclusions as to the appellant’s argument concerning the BNZ mortgage at a later stage in these reasons once I have completed setting out the relevant facts. This is necessary as what later occurred has a bearing on whether the alleged breach of contract or negligence on the part of the respondent caused the appellant to sustain damage.

45    After the discharge of the St George mortgage, the appellant received a surplus of about $20,000 from the BNZ mortgage and spent it between May and September 1989 (Black 158).

46    On 12 May 1989 contracts for the purchase of Bucketty were exchanged.

The contracts for the sale of the Dangar property and the Commonwealth Bank mortgages over Bucketty

47    In July 1989 the appellant instructed the respondent to act for her in connection with a proposed sale by her of her Dangar property to a Mr Cooper. That sale did not proceed but, relevantly, a special condition of the proposed contract provided that the vendor (the appellant) would have the right “if she so elects to remain in occupation of the property free of consideration for a period not exceeding two (2) months after the date of completion”.

48    On 11 September 1989 the appellant instructed the respondent to act as her solicitor in connection with the proposed sale of the Dangar property to Mr Hayden.

49    By 11 September 1989 the appellant knew that the BNZ mortgage was not portable (Black 172). Accordingly, on 13 September 1989 she applied to the Commonwealth Bank for a loan of $50,000 to be secured by a mortgage over the Bucketty land. She needed the loan to be able to purchase the land. Although she had apparently first intended that this loan be used to finance the construction of the yurt, she changed her plans when she could not use the BNZ mortgage for Bucketty.

50    On 13 September 1989 the respondent sent a contract for the sale of the Dangar property to P J Straton and Associates, Mr Hayden’s solicitors.

51    On 15 September 1989 the Commonwealth Bank approved a building loan of $50,000 against the mortgage of the Bucketty land.

52    By 25 September 1989 the appellant had applied to the Commonwealth Bank for an additional bridging loan of approximately $20,000. On that date the respondent wrote on the appellant’s behalf to the Commonwealth Bank confirming that the loan, to be secured by a mortgage over the Dangar property, would be made. The respondent undertook to the Bank to pay $20,000 to it from the proceeds of the Dangar property sale. According to the appellant, she used the $55,000 she borrowed from the Commonwealth Bank for the building of the yurt to pay for the land and used the $20,000 to commence building the yurt.

Clause 7 of the contract for the sale of the Dangar property

53    On 10 or 11 September 1989 the appellant and Mr Hayden discussed the purchase of the Dangar property and they agreed on a purchase price of $175,000 (Black 37).

54    On 20 September 1989 contracts for the sale of the Dangar Island property were exchanged. Clause 7 of the contract provided:

“The vendor shall have the right to occupy the premises under licence until 8 December 1989. Provided that the vendor shall make such election to so occupy the premises prior to completion in writing to the purchasers’ solicitors”.

Clause 7 was a major bone of contention between the parties.

55    The appellant contended that she had not authorised the respondent to incorporate such a clause in the contract. She asserted that she had requested the respondent to incorporate a clause entitling her to remain on the property for two months after completion and had never evinced any change from that attitude. She emphasised that it was crucial for her to have a period of two months between completion and vacation of the property. It was only on completion that she would receive sufficient monies to be able to pay for the construction of the yurt on the Bucketty land. Her intention was to have the construction of the yurt completed within the two month period. She needed to be able to stay at the Dangar property with her animals until Bucketty was ready for habitation.

56    The respondent, on the other hand, testified that he had received express instructions from the appellant to incorporate a clause in the contract whereby the appellant agreed to vacate the property on 8 December 1989 and he asserted that, in accordance with the appellant’s instructions, the two month provision fell away.

57    The appellant instructed the respondent in regard to the Dangar property sale contract on 18 September 1989. According to the appellant, she asked the respondent to insert the conditions that had been used in the form of contract intended for the sale to Cooper. One of those conditions, as mentioned, provided that the vendor would have the right to remain in occupation of the property free of consideration for a period not exceeding two months after the date of completion.

58    The respondent’s secretary was at lunch at the time, and the respondent asked the appellant to sign a blank page, saying that later he would have the conditions she wanted typed on the page.

59    When the conditions were typed, the page did not contain a clause providing for two months occupation after completion. Instead the following clause was incorporated:

“The purchasers acknowledge that the vendor shall have the right if she so elects to remain in occupation of the property free of consideration to and including 8 December 1989. The vendor agrees that she will advise the purchasers or their solicitors in writing on or before completion whether she elects to so remain in possession. The vendor further agrees that she will give to the purchasers or their solicitors seven (7) days notice in writing of the date she will vacate the property on or before 8 December 1989”.

Later, the respondent and Mr Straton, Mr Hayden’s solicitor, agreed that the clause be amended in the form set out in para 52 above. The amendment brought about no difference in substance to the meaning and effect of the clause as originally drafted.

60    In cross-examination, the appellant said that on 18 September, when she and the respondent were discussing the terms to be inserted in the Dangar property contract, he wrote out a clause to which she agreed. This clause was “a long waffly paragraph which included 8 December in”. She seemed to accept that the clause that initially was typed and formed part of the contract (that is, the clause set out in para 52 above) was the clause the respondent had written out and to which she had agreed.

61    The appellant, however, contended that the clause written out was to be in addition to the two month occupation clause that had been contained in the Cooper contract. The respondent asserted, on the other hand, that he had been instructed that the new clause was to replace the two month occupation clause. This was a crisp credibility question.

62    The appellant pointed to the fact that she would need two months to complete the construction of the yurt and make it habitable. She could only commence having the yurt constructed once settlement of the Dangar property sale had occurred and she had received the balance of the purchase price after discharge of the BNZ mortgage. This was because, without the funds that would be released upon settlement, the yurt builder would not proceed with construction. She said that she fixed on the 8 December as the earliest date on which she would vacate the property because of what the builder of the yurt had told her. He had said, in effect, that provided he was paid on or before 8 October, he would complete the yurt by 8 December, but if he was paid after 8 October he would complete the yurt two months later. She said that she could not leave the Dangar property before the yurt was completed.

63    The appellant accepted that she had told the respondent that “8th December was the first day I could vacate according to the building programme - that’s what I told him on 18th”. According to the appellant, however, what she had in mind was that she would always have two months after the date of completion to remain in the property free of charge.

64    The appellant asserted that she told the respondent that 8 December was the earliest date by which she would move out, but only subject to completion having occurred two months previously. If settlement occurred after 8 October 1989, she would move out two months after that date, even though that would be later than 8 December.

65    This version of the appellant’s instructions to the respondent is difficult to discern from her evidence. It did not emerge clearly in her evidence in chief and, in cross-examination, counsel for the respondent struggled to obtain clarity as to the appellant’s case in this respect. Even in the course of appeal the appellant had difficulty in explaining to the Court what she intended.

66    According to the respondent, the appellant expressly instructed him to delete the requirement for a two month occupation period and to insert 8 December 1989 as the date on which she was to leave. He testified that she told him that, according to the yurt builder, the 8 December would give “perfectly adequate time” for her to be able to occupy the yurt.

67    The respondent said that, in the presence of the appellant, he complied with her instructions by deleting the references to the two month period in the relevant clause that had been used in the Cooper contract and substituting the date of 8 December 1989.

68    The respondent testified that, when the appellant gave him instructions as to when she wished to vacate the Dangar property, he was not aware that she needed two months to erect the yurt. He knew that she had previously asked for a two month period after settlement to vacate Dangar Island. He did not know why she wanted this period.

69    The contract between the appellant and Mr Hayden provided that completion would occur within six weeks from 20 September 1989 (the date of the contract). The completion date was therefore 1 November 1989. It was on that date that a notice to complete could be served. Under the contract a notice of fourteen days was required to make time of the essence. It follows that, on the basis of the contract as drafted and entered into, had settlement occurred by 1 November 1989, the appellant would have had more than five weeks free occupation of the property.

70    In a letter dated 28 October 1989 that the appellant wrote to the yurt builders, she said, “I had agreed to move on 8 December 1989”. The appellant attempted to explain this statement in a way consistent with her version (by asserting that it was subject to completion occurring by 8 October 1989). It was open to Mahoney DCJ, however, to regard the statement as corroborative of the respondent’s version.

71    In a letter dated 10 August 1990 to the Law Society the appellant said:

“After speaking to the builder on 12/9/89 I then decided I could vacate by 8/12/89 and phoned and told Crompton as Hayden wanted a date in the contract. I told Crompton (also on 18/9/89) I would confirm the date after I met the builder on site on 19/9/89”.


On 19 September, the builder assured the appellant that the yurt should be finished by 8 December.

The appellant again sought to explain this statement in a similar way, but it was open to Mahoney DCJ to regard this statement as corroborative of the respondent’s version.

72    Mahoney DCJ was satisfied that the appellant did not instruct the respondent that the Hayden contract was to contain both a two month clause and the clause requiring her to leave by 8 December. He found for the respondent on this issue, saying:

“I am satisfied that, whatever form of words issued from the [appellant], the only reasonable explanation which the [respondent] could put on them was that the two month clause, which had appeared in the sale to Cooper contract, had been replaced by the agreement reached by the [appellant] with the Haydens that she would vacate by 8 December 1989.”

73    There is nothing to suggest that his Honour misunderstood the evidence or acted on evidence which was inconsistent with the facts or which was glaringly improbable or misused his advantage as the trial judge in any way. This finding has to stand.

74    The appellant then submitted that if her instructions were not clear it was the respondent’s obligation to ensure that they were. While, as a general proposition, there may be substance in this submission, on the finding of Mahoney DCJ (and the evidence of the respondent which his Honour believed) there was no question of her instructions being unclear.

75    The respondent’s evidence was that the appellant told him simply that she agreed to leave the property on 8 December 1989. The yurt would be ready then. On this evidence and the findings of the learned judge, there is no room for an argument based on ambiguity.

76    Mahoney DCJ found that the only reasonable meaning that the respondent could attribute to the words used by the appellant was that she wished the contract to record that she had until 8 December to vacate the property. The appellant, herself, did not contend that her instructions had been ambiguous. The case as presented was a straight conflict, her version against that of the respondent. The respondent’s version was accepted. No error of the kind referred to in the authorities has been demonstrated. That is the end of this issue.

77    The appellant submitted that should it be found that she had instructed the respondent to include a provision that she would leave the Dangar property on 8 December 1989, he should have advised her not to agree to such a term.

78    I do not accept this submission. It has to be considered against the background of the respondent’s testimony (which was accepted by Mahoney DCJ) that he was not aware that the appellant needed two months to erect the yurt and, moreover, that the appellant had informed him that the 8 December would give “perfectly adequate time” for her to be able to occupy the yurt. The learned Judge accepted the respondent’s version that he had been given clear instructions to remove the two months occupation clause and substitute the 8 December vacation date clause. On this basis, there was no reason whatever for the respondent to query the appellant’s instructions and no valid criticism can be made of him in this respect.

The events leading to the termination of the respondent’s mandate

79    On 11 October 1989 the solicitors for the vendors of the Bucketty property wrote to the respondent enclosing a share application form relating to a one 37th share in the common property on Bucketty to which the appellant was entitled by virtue of her purchase of the Bucketty land. I have referred to this share as the “Bucketty share”.

80    In addition, as owner of land in Bucketty, the appellant became entitled to 100 shares in BVL. On 12 October 1989 the vendors’ solicitors sent the respondent the articles of association of BVL.

81    In mid-October 1989 the Hayden family visited the Dangar property. A discussion ensued which led to some ill feeling between the appellant and the Haydens. The appellant wrote a letter to the respondent recounting what had been said in that discussion. She recorded that she had told Mr Hayden that “they were cutting things a bit fine if they wanted me out by the 8th December”. The letter went on to refer to a conversation the appellant had with Mrs Hayden on 20 October 1989 who, according to the appellant, “was very unpleasant”. A telephone conversation between the appellant and Mr Hayden followed. The appellant told the respondent, “I reminded him [Mr Hayden] that he’d shaken hands on an agreement with me that unless he ‘settled’ I would not be able to go by 8th Dec. I pointed out that there was still probably time if he …. settled on this Monday (23/10/89) and he told me that someone had told him that it was common practice in Australia not to settle on due date but to wait for the other side to serve a ‘fourteen day letter’ on them”. The appellant stated that she was “quite explosive after that and said several choice things”.

82    I pause to note that the suggestion that settlement on 23 October 1989 would be in order and the appellant would then vacate on 8 December 1989 is inconsistent with the absolute requirement that the appellant required two clear months after settlement before she would leave the Dangar property.

83    Plainly, these episodes caused relations between the appellant and the Haydens to sour. Also, to the appellant’s serious prejudice, the Haydens had formed the view that she was likely to delay vacating the Dangar property after settlement, even if settlement occurred on 8 December 1989. Their conduct from then on was designed to ensure that they were protected against the appellant staying on after settlement. This caused the appellant severe problems, in particular, Mr Hayden did not settle at the time expected (initially, by 1 October 1989).

84    On 23 October 1989 the respondent left Australia for India. Mr Phillip Worrall, then his partner, took over the matter. On 26 October 1989 the appellant wrote to Worrall, complaining about the lack of progress and suggesting that the contract be “rescinded, quashed or corrected”.

85    The reference to “corrected” is apparently to rectification. The appellant testified that at some time during this period she was told by a representative of the Law Society of New South Wales that “there was a remedy when a contract was wrong and the parties could go to Equity Court [to have the contract rectified]”.

86    In the meantime, the construction of the yurt had not been commenced. The appellant testified that she still needed two months for this. She informed Mr Worrall that her ability to vacate the Dangar property had been delayed.

87    On 30 October 1989 Mr Worrall wrote to the appellant confirming his “often stated advice” that she “should adhere to the terms of both of your contracts”. In other words, he was advising that she should complete and vacate the property by 8 December 1989, even if the yurt had not been constructed. She was unwilling to countenance such a proposal. The idea of renting accommodation for two months for herself and her animals she regarded as a practical impossibility and an anathema. This attitude affected her decisions concerning all her property transactions.

88    In his letter of 30 October 1989, Mr Worrall noted that the appellant now contended that the contract did not properly reflect her instructions to the respondent as to “the agreement reached prior to contracts between you and the purchaser”. Mr Worrall said:

“We confirm that we cannot locate evidence of these allegations to enable you to impugn the purchase contract for sale, which we note is your wish. We therefore advise that to depart from the terms of either contract could be a perilous course …”

89    The appellant did not respond to Mr Worrall’s advice that she should complete the contract. She said:

“I expected him to do what was necessary”.

She implied that he should have completed on her behalf.

90    In the light of what had occurred, however, no prudent solicitor would have acted on the appellant’s advice without express instructions. Mr Worrall was entirely justified in doing nothing without such instructions.

91    On 31 October 1989, the appellant informed the respondent’s secretary that she had received advice from the Chamber Magistrate and in consequence her attitude was that she should settle the Dangar Island sale only if she was given more time to stay on the property. That, of course, was not her right under the terms of the contract. There was nothing Mr Worrall or the respondent could do to achieve this end, save to attempt to negotiate a new agreement with Mr Hayden.

92    On 3 November 1989 the appellant sent a facsimile to the respondent stating that she was “definitely moving to have the contract quashed”. According to the facsimile she instructed the respondent to tell Mr Hayden that she was going to have the contract quashed because Straton “altered it after I’d signed”. This was plainly untrue.

93    By this time the respondent had returned from India and, understandably, had formed the opinion that it would be in the appellant’s best interests to negotiate a compromise with the Haydens. On 9 November 1989 he wrote to Mr Straton seeking a negotiated compromise on the basis that the appellant could stay on the property for an extended period. The letter recorded the appellant’s instructions that she and Hayden had orally agreed that she would have two months occupation of the property after settlement, and that this agreement had not been recorded in the contract. Mr Straton later replied on Mr Hayden’s behalf denying that an agreement as alleged had been made.

94    At about this time, the appellant told the respondent about the advice she had received from the Law Society and asked that he bring proceedings for rectification. According to the appellant:

“Mr Crompton said he would not go to Equity Court because he believed that the contract was as I had told him to do it.”

Again, she said that the respondent told her that “he would not move to rectify the contract”.

95    On 13 November 1989 the respondent wrote to the appellant saying:

“[I]t is our advice to you that you issue and serve the fourteen (14) day Notice to Complete on the Haydens, thereby forcing settlement upon them. I further advise that it is imperative that this Notice to Complete be served upon them more than fourteen (14) days prior to 8 December next.
Your instructions in this regard would be appreciated at your earliest convenience”.

No such instructions were received.

96    On 14 November 1989 the respondent wrote to the appellant again advising that a notice to complete should be sent to the Haydens. On the same day he wrote another letter reiterating that advice and saying further:

“The contract is in existence in its existing terms. As previously advised to you, the contract is in a form that the writer always believed and understood to be in the form instructed by you. It was always the writer’s belief and understanding that your instructions regarding the insertion of the clause giving you the right to occupy until 8 December was to supersede a clause that appeared in an earlier contract for a proposed sale through an agent to a different purchaser. It was the writer’s belief and understanding of your instructions that providing exchange could take place at or about the time it did, namely 20 September 1989 then the inclusion of 8 December 1989 clause would allow more than sufficient time for the yurt to be built and for you to occupy by 8 December, and for you to therefore give vacant possession by 8 December”.

The respondent strongly advised the appellant against repudiating the contract and suggested that she think very carefully about any steps she may take.

97    Also on 14 November 1989 the respondent drafted a three day Notice to Complete to Mr Straton, requiring settlement on or before 17 November 1989. This letter was not sent as, according to the respondent, he was not instructed to send it. The omission to send this letter has no material effect on the result of this appeal.

98    The respondent testified that on 15 November the appellant orally instructed him to take no further action in relation to the Dangar property sale. This testimony is supported by a file note he made at the time. This testimony is important as one of the appellant’s complaints is that, during this particular period, the respondent did not take action to protect her interests.

99    The respondent testified that he received a facsimile on 15 November 1989 confirming the appellant’s oral advice. The facsimile was in these terms:

“I also confirm that we take no further action on the Dangar sale at present”.

100    When cross-examined about the letter of 15 November 1989, the appellant said that her instructions to take no action referred to her previous instructions to have the contract rectified.

101    The appellant’s attempts to explain away her written instructions to take no further action are difficult to accept. The learned judge’s preference for the respondent’s testimony in this regard is perfectly understandable. The appellant’s evidence on this issue does not have the ring of truth.

102    The respondent testified that he spoke to the appellant on 16 November 1989, the next day, and she again told him to take no further action in relation to the sale.

103    On 17 November 1989 the Bucketty purchase was settled.

104    On 17 November 1989 the appellant signed an application form for 100 shares in BVL.

105    On 20 November 1989 the respondent wrote to the appellant confirming her instructions to take no further action in relation to the sale to Mr Hayden. She asserted that she did not receive this letter.

106    On 21 November 1989 the appellant wrote to the respondent saying:

“What is happening??? I want the money I am owed or I want the contract cancelled”.

107    On 29 November 1989 the appellant instructed the respondent to ask Mr Hayden to settle on the basis of two months possession “as was originally agreed” failing which the respondent should move on her behalf to have the contract amended (rectified).

108    On 1 December 1989 the respondent wrote to Mr Straton, again attempting to negotiate a settlement whereby the appellant would have an adequate period on Dangar Island after settlement. He also recorded the appellant’s contention that she had originally agreed with Mr Hayden that she would have two months occupation after settlement.

109    Mr Straton made it plain throughout this period that Mr Hayden was agreeable to complete on 8 December provided the appellant furnished a bond of $4,000 or $5,000 which would be forfeited if she did not leave by 8 December. Plainly, Mr Hayden (rightly) suspected that if settlement did occur on 8 December the appellant might well stay on the property and he would have to take legal proceedings to evict her. There was nothing the respondent could do about this. The appellant said often enough in the course of her testimony that by November she was not prepared to vacate by 8 December.

110    On 4 December 1989, the appellant terminated the respondent’s mandate. I have mentioned above that eventually, the Dangar property was sold in execution by the BNZ and purchased by the Haydens for a sum lower than that which Mr Hayden had agreed to pay under his contract with the appellant. The appellant was unable to pay the Commonwealth Bank the money she had borrowed from it and the Bank, acting under its mortgage, sold the Bucketty property in execution. Thus, the appellant lost everything she possessed.

The advice given by the respondent in connection with the Dangar property

111    As I have mentioned, the appellant argued that the respondent should have advised her in good time to take action to ensure that settlement of the Dangar property sale contract be effected as soon as possible, or should have advised her to take steps to have that contract rectified.

112    On 30 October 1989, as I have noted, Mr Worrall had advised the appellant that she should complete and vacate the property by 8 December 1989, even if the yurt had not been constructed, but she rejected that proposal. On 31 October 1989, the appellant had received advice from the Chamber Magistrate and had decided to settle the Dangar property sale only if she was given more time to stay on the property. The first day for service of a notice to complete under the contract with Mr Hayden was 1 November 1989. The appellant’s attitude prior to that date was such that it is quite apparent that she would have rejected out of hand any advice to enforce the contract as it stood. She wanted to ensure that she could stay on the Dangar property after 8 December 1989 and would not countenance any step that involved her agreeing to give up possession before then.

113    On 3 November 1989 the appellant advised the respondent that she was “definitely moving to have the contract quashed”. By 9 November 1989 the respondent was attempting to negotiate a compromise on the basis that the appellant could stay on the property for an extended period. In my view, this course of conduct, in the circumstances, was eminently reasonable. The appellant was taking advice from others at this time and by reason of what she had been told by the Law Society she instructed the respondent to seek rectification. Again, it is patently obvious that during this period it would have been quite futile to advise the appellant to settle and complete the contract. She would not have complied with any such advice.

114    On 13 November 1989 the respondent advised the appellant to issue and serve a fourteen day notice to complete on Mr Hayden, “thereby forcing settlement upon them”. He told the appellant that it was “imperative” that the notice to complete be served more than fourteen days prior to 8 December. He sought the appellant’s instructions in this regard “at your earliest convenience”. She did not heed this advice.

115    In the circumstances, the argument that the respondent should have advised the appellant timeously to ensure settlement of the Dangar property sale contract is futile. Firstly, the advice that the respondent gave the appellant at all times was reasonable. Secondly, had he advised her earlier to complete, she would have rejected that advice.

116    The respondent was entirely justified in his advice not to attempt to obtain rectification of the contract. Apart from his understandable doubts as to the reliability of the appellant’s testimony in regard to an oral agreement of the kind which the appellant was asserting, there was no prospect whatever of establishing that Mr Hayden had agreed orally to the appellant having two months after completion to remain in the property, even after 8 December 1989. The case for rectification was hopeless. Moreover, there was no basis whatever on which any unilateral rectification could be obtained.

117    Generally, the respondent’s advice to the appellant, given consistently, was that she should comply with the terms of the contract. Had she done this and rented a place to stay for the two month period while the yurt was being built she would have suffered very little loss. Her only loss would have been the cost of the accommodation for two months.

118    In my opinion, the appellant’s arguments in regard to the advice given to her by the respondent cannot be upheld.

The portable mortgage

119    I now return to the appellant’s contention that the respondent wrongly failed to advise her that the terms of the mortgage offered to her by the BNZ were not in accordance with the terms she had sought.

120    It will be recalled that the appellant’s case that she instructed the respondent to verify that the terms of the mortgage were different to the terms for which she applied was based on the fact that she requested him to act as her solicitor in connection with the registration of the mortgage and sent him copies of the application form and her letter to the BNZ.

121    The application form recorded that the appellant was seeking a “temporary mortgage” and she wished the mortgage to be transferred to her new property when her existing property was sold.

122    The letter made it apparent that the appellant intended to sell the Dangar property and live in a yurt to be constructed for her on some other property. The total cost of building the yurt would be $40,000 and the cost of the land would be $50,000. Thus, the total costs would be $90,000 and she needed an additional $15,000 “to use”. According to the letter, the appellant hoped to have her yurt plans approved before the Dangar property was sold and she needed $10,000 to achieve that. She would have to pay the balance when the yurt was delivered and erected, and that would not be necessary until the Dangar property was sold. She had allowed six weeks in all for the construction of the yurt. The letter stated that the appellant needed the money before she sold the Dangar property so that preliminary work could be started before the settlement period or she would have nowhere to live.

123    The application form does not make it clear whether the appellant was seeking the right to transfer the mortgage to her new property when her existing property was sold or whether she was merely advising the BNZ of her intentions. It seems to me, however, that the latter construction is the more reasonable. A clause binding a lender, without more, to transfer the mortgage to a new property when the mortgaged property is sold is so uncommercial that no lender would be likely to agree to it and a solicitor would not be likely to regard it as a serious request to the mortgagee to bind itself in accordance with its terms. It is far more likely that a solicitor would regard the reference to the mortgage being transferred merely as a statement of the appellant’s intentions.

124    The letter is confusing and it is difficult to know what the respondent could have made of it.

125    There was no evidence that the appellant told the respondent about a portable mortgage and she did not explain to him what she understood such a mortgage involved. She did not tell him that she wished or expected the BNZ to incorporate a “portability” clause in the mortgage. As far as the respondent knew, the appellant had applied for a mortgage from the BNZ according to its standard terms. I do not think that he should have been alerted to anything different by the terms of the application form and the letter.

126    In my opinion, the instructions given to the respondent were too vague and too general to require him to verify whether the BNZ mortgage contained a portability clause. In my opinion, Mahoney DCJ correctly held that the appellant did not make clear to the respondent that she wanted the mortgage to be “portable”.

127    Moreover, the appellant led no evidence to the effect that, had she known that the mortgage was not portable, she would have acted differently. Thus she did not prove that a failure by the respondent to advise her that the mortgage was not portable caused her damage.

128    As I have mentioned, by 11 September 1989 the appellant knew that the BNZ mortgage was not portable. Nevertheless, on 13 September 1989 she applied to the Commonwealth Bank for a loan to be secured by a mortgage over the Bucketty land and thereafter exchanged contracts for the Bucketty land and proceeded to contract to sell the Dangar property. That is, with knowledge of the lack of portability she proceeded with the transactions that caused her damage. Further, there was no direct evidence that the damage she sustained was caused by the fact that the BNZ mortgage was not portable and the appellant, in her submissions, did not point to any quantifiable loss in this respect.

129    Accordingly, in my view, Mahoney DCJ rightly held that the claim in connection with the BNZ mortgage should be dismissed.

The Bucketty share and the articles of association

130    I shall summarise the facts that appear to relate to the claim in respect of the Bucketty share.

131    On 1 December 1989 the respondent advised the appellant that the Bucketty share was handed to the Commonwealth Bank at settlement when the Bucketty land was purchased.

132    At some time in 1992 the appellant attempted to sell the Bucketty land and the Commonwealth Bank refused to agree to the sale. The Bank did not have a mortgage over the Bucketty share. A note made by an officer of the Bank was in evidence from which it appeared that, because the Bank did not have security over the Bucketty share, it regarded its security as constituted by the Bucketty land as worthless.

133    The appellant contended that the respondent breached the contract or his duty to her by not sending the Bucketty share to the Commonwealth Bank and causing the Bank to register a mortgage over the share. This, she said, resulted in the Bank refusing to agree to her selling the Bucketty land and attempting to obtain a bankruptcy order against her.

134    There are a number of difficulties with these submissions. Firstly, on the evidence, as I have mentioned, the respondent did send the Bucketty share to the Bank at settlement when the Bucketty land was purchased. Secondly, the appellant never asked the respondent to ensure that the Bank took out a mortgage on the Bucketty share and the Bank never requested the Bucketty share from the respondent and did not seek to take a mortgage over it. Finally, on a consideration of the evidence, it seems that the Bank refused to agree to the sale of the Bucketty land because the appellant refused to agree to the Bank retaining all the proceeds - not because it did not have a mortgage over the share.

135    In the circumstances, the appellant’s claim in respect of the Bucketty share must fail.

136    As regards the articles of association of BVL, the appellant claimed that the respondent should have sent them to her or read them and advised her that they allowed for the grazing of cattle on Bucketty. She said that she was a vegetarian and would never have agreed to purchase Bucketty had she known of the prospect of cattle being on the land.

137    The case so explained was not pleaded and was not put at the trial. There was no evidence that supported the proposition that the appellant would not have bought the Bucketty land had she known that cattle could graze there. Accordingly, this claim must fail.

Conclusion

138    For the reasons I have expressed, I propose that the appeal be dismissed with costs.

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