Lacey v Hayden & Anor

NEW SOUTH WALES COURT OF APPEAL

CITATION: Lacey v Hayden & Anor [2000] NSWCA 182

FILE NUMBER(S):
40925/98

HEARING DATE(S): 12 July 2000

JUDGMENT DATE: 24/07/2000

PARTIES:
Gillian Lacey - Appellant
Terence Harold Hayden & Victoria Hayden - Respondents

JUDGMENT OF: Giles JA Fitzgerald JA Heydon JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 3201/90

LOWER COURT JUDICIAL OFFICER: Young J

COUNSEL:
Appellant in person
C R Newlands SC & P T Newton - Respondents

SOLICITORS:
Appellant in person
P J Straton & Associates, North Sydney - Respondents

CATCHWORDS:
VENDOR AND PURCHASER - vendor could remain in possession after completion until specified date - vendor not prepared to complete unless purchasers let her stay in possession for a longer period - purchasers absolved from obligation to complete - Foran v Wight (1989) 168 CLR 384 applied.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40925/98
EQ 3201/90
GILES JA
FITZGERALD JA
HEYDON JA
Monday 24 July 2000

LACEY v HAYDEN & ANOR

JUDGMENT

GILES JA: This is an appeal from the dismissal of a claim for damages for failure to complete a contract for the sale of land.
The appellant was the vendor to the respondents of land at Dangar Island (“the property”) under a contract dated 20 September 1989 (“the contract”). The price was $175,000. A deposit of $17,500 was payable to the appellant’s solicitors, to be invested in a way stated in the contract, and the balance of $157,500 was payable “on completion within six weeks from the date hereof”. By special condition 4 it was agreed that in a notice making time of the essence fourteen days “shall be deemed to be reasonable and sufficient notice for that purpose”.
According to the printed form of the contract, the 1988 edition of the Law Society and Real Estate Institute approved document, the benefit of possession was to be given as at the date of completion with vacant possession. Special condition 7, however, 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”.
Six weeks from 20 September 1989 was 1 November 1989. In circumstances turning on the giving of vacant possession on 8 December 1989, the contract was not completed on that date, or at any time thereafter. I will return to those circumstances later in these reasons.
The respondents brought these proceedings on 21 June 1990. They claimed specific performance of the contract, alleging “repeated requests” to the appellant to complete the contract in accordance with its terms and her continued refusal, and damages for the appellant’s refusal to perform and delay in performing the contract.
A defence and cross-claim was filed by the appellant on 27 August 1990. The substance of the cross-claim was that the true contract between the parties provided for the appellant to remain in occupation of the property free of consideration for two months after the date of completion, that the contract should be rectified accordingly, and that there should be specific performance of the true contract and damages for the respondents’ refusal and delay in performing of that contract.
In November 1991 the mortgagee of the property advertised it for sale as a mortgagee sale, and the respondents purchased it for $140,000. It became unnecessary for the respondents to have specific performance of the contract, although they could still have had a claim for damages. At a time which does not appear from the evidence the respondents abandoned their claims in the proceedings.
There remained, however, the appellant’s cross-claim. The appellant could no longer obtain specific performance of the contract which she propounded, and in October 1998 she converted the cross-claim to a claim for damages alone.
The cross-claim on which the proceedings went to trial was a further amended cross-claim filed on 21 October 1998. The appellant relied on the contract dated 20 September 1989, and no longer maintained that the true contract provided otherwise than as in special condition 7. She alleged that the express terms of the contract provided for completion on or about 1 November 1989 and payment of the $157,500 on or about that date, and that the respondents had failed to complete the contract “as at the date provided for in the land contract”. She also alleged that the respondents had “persistently and continuously” refused to complete the purchase of the property, and had thereby evinced an intention no longer to be bound by the contract and had repudiated it. She claimed a declaration that she had validly terminated the contract on or about 30 November 1989 or alternatively 12 November 1991, or that in the alternative it had been repudiated by the respondents, and damages for the respondents’ failure to complete the contract “on the date provided thereby or within a reasonable time”.
The proceedings came on for hearing before Young J on 27 October 1998. The respondents’ defence to the further amended cross-claim was filed in court on that day. The respondents admitted the contract, but as to completion only that it included a term that the completion would take place within six weeks of the date of exchange. They denied that the $157,500 was payable on or about 1 November 1989, and said that the balance of the purchase price was payable on completion. They denied the breach and repudiation alleged, and that the appellant had validly terminated the contract.
After going to the facts, Young J said:
“The defence admitted the contract. It denied that it was an express term that the cross-defendants would complete on or about 1 November 1989 and denied most other relevant parts of the cross-claim.
The pleadings on both sides were a little strange. The claim made by the cross-claimant appeared to be for damages for the loss of the contract, plus consequential damages because of a particular breach of warranty in the first instance, or repudiation in the second instance.
The defence really was one that should not just have denied the promise, but should have attacked the non-performance of conditions precedent, for reasons that I will mention in a moment. However, the way in which the case was presented on both sides made it plain what the issues were for my determination.
The key question is, was there a breach by the purchasers of the promise to complete on 1 November 1989?”
In the subsequent discussion his Honour said that a plaintiff claiming damages for breach of a promise had to establish, if challenged, any condition precedent to performance of the promise, and that the defendant should specifically deny that a particular condition precedent had happened or that performance had been excused. He said -
“Thus, here the purchasers could say that they were not obliged to complete because the performance of their obligation to complete on 1 November was concurrent with the vendor’s obligation to complete by herself complying with the contract.”
After referring to cases concerning onus, his Honour said -
“Accordingly, to establish her claim Mrs Lacey had to establish that the non-settlement of the proceedings on 1 November happened without blame on her part. That may be putting it a bit too widely, but I am merely trying to centre on the basic concept.
The evidence does not go that far. The evidence shows that the whole background to what was happening in the last week of October was that it had been signalled to the purchasers loudly and clearly that there was a very real risk that they would not get vacant possession in accordance with the contract no later than 8 December. It could not be said that that was an ill-placed fear because the whole of the material before the court shows that the stratagem that was adopted by the solicitor for the vendor, which she would not instruct him to implement, and all other feelings that the vendor evinced was that she just could not leave the property in accordance with the contract.
Accordingly, the allegation of breach has not been made out.”
There were fourteen grounds of appeal in the notice of appeal. As she had before Young J, the appellant appeared in person. Understandably enough, the grounds of appeal were not framed as they might have been if the appellant had been legally represented. It was necessary to endeavour to identify, from the appellant’s oral submissions, the substance of her complaints and the reasons for them.
It will assist in understanding the grounds of appeal, and their disposition, to go to ground 10 before addressing the other grounds in numerical order.
Ground 10: The Plaintiffs did not claim the Condition Precedent in their Defence. However, the Judge submitted this Defence for them. However, the Judge did not submit the Condition Precedent for the Defendant. The Plaintiffs were to settle this Contract on 1 November 1989 before the Defendant had to vacate the premises on 8 December 1989.
The references to a condition precedent are explained by the use of those words in Young J’s reasons. The appellant’s complaint was that giving vacant possession by the appellant was not a condition precedent to payment of the $157,500 by the respondents. The respondents were obliged to complete, relevantly to pay the $157,500, on 1 November 1989. The appellant was obliged to give vacant possession on 8 December 1989. The respondents had to complete even if there was a real risk that they would not get vacant possession in accordance with the contract no later than 8 December 1989, because performance of their obligation was not subject to performance yet to come of the appellant’s obligation. Therefore the allegation of breach had been made out.
Two matters should be mentioned, in order to put them aside. First, it was not suggested on the appeal that there was any significance in the contract providing for vacant possession subject to a right of occupancy under licence. The licence was treated as entitling the appellant to possession of the property. Secondly, in order that the right to occupy the premises under licence arise the appellant had to elect by written notice to the respondents’ solicitors prior to completion, but there was no evidence of a written notice prior to 1 November 1989. The respondents sought to rely on this in the appeal, but I do not think they should be permitted to do so. It is clear that they knew prior to 1 November 1989 that the appellant wished and intended to remain in possession of the property until at least 8 December 1989, and at the trial the respondents did not dispute that she had had an entitlement to possession until that date.
It was for the appellant to establish that, in the events that happened, the respondents were obliged to complete the contract, relevantly by payment of the $157,500, on 1 November 1989. In a contract for the sale of land the contractual obligations of the parties to complete the sale “are concurrent and conditional in the sense that the vendor is not obliged to convey the land and the purchaser is not obliged to pay the purchase price otherwise than upon concurrent performance by the other party”: Foran v Wight (1989) 168 CLR 385 at 433 per Deane J. Young J held that the respondents were not obliged to complete on 1 November 1989 because the appellant was herself in breach of a concurrent obligation “to complete by herself complying with the contract”, the non-compliance on her part being that she had made known a risk that she would not give up possession on 8 December 1989. The factual finding was well open to his Honour, but it may be that the legal result did not follow.
There is some ambiguity in his Honour’s references to the appellant being without blame and herself complying with the contract. On one view, a statement by the appellant as at 1 November 1989 that she would not give up possession on 8 December 1989 would have been an anticipatory breach, of a contractual obligation to be performed on 8 December 1989, for which the respondents might have been able to terminate the contract. But if the respondents did not terminate the contract, and in the present case they did not, it would have remained on foot, to be performed by both parties. The concurrent and conditional obligations to be performed on 1 November 1989 would have remained, and could have been performed, and it would not have mattered that future breach of an obligation to be performed by the appellant on 8 December 1989 was foreseen - she might have changed her mind by that date. On that view, the respondents were obliged to complete on 1 November 1989 even though the appellant had made known a risk that she would not give up possession on 8 December 1989.
In the absence of proper adversarial argument, I would prefer not to adopt Young J’s path to the legal result. In my opinion, his Honour’s conclusion was correct for different reasons.
The obligations to complete the sale being concurrent and conditional, if one of the parties to a contract for the sale of land makes known to the other that he will not perform his obligation, the other party does not have to perform the other party’s obligation. It is sufficient to refer again to Foran v Wight, where this is put in a number of ways.
Mason CJ said (at 396) that a party may be excused or absolved from performance of his concurrent obligation by conduct on the part of the other party amounting to a waiver or dispensation with performance. Brennan J said (at 417) that if one party intimates to the other that it is useless for the other to fulfil his obligation and the other acts on the intimation, the party to whom the intimation is given is dispensed from a nugatory tender of performance. His Honour later (at 427) repeated this in similar language, when referring also to whether the failure of the intimating party to perform the contract can be treated as a breach of contract: that does not arise in the present case.
The discussion by Deane J (at 433-4) is less easily summarised, but the principle applied (at 434-5) was that, where the vendors had unequivocally said that they would not complete the contract until after the stipulated date, it necessarily conveyed to the purchasers that it would be pointless for them to trouble to perform their obligation; the purchasers having acted on the faith of the intimation that performance within the stipulated time would be futile and was unnecessary, the vendors would not be allowed to say that they were in breach of contract.
Dawson J said (at 451) that the purchasers were entitled to rely upon the intimation by the vendors that they could not settle within the contractual time and the implied intimation that it would be useless for the purchasers to attempt to do so, as absolving them from tendering the purchase price within that time. Gaudron J said (at 456) that when one party to a contract intimates to the other that the latter’s performance of a contractual obligation will be futile the latter is not required to tender performance of that obligation; thus following an intimation by one party that a tender of settlement of a contract for sale of land will be futile, the failure of the other party to tender settlement at the time made essential will not put that party in breach of his obligation.
Accordingly, if the appellant did not just make known a risk that she would not give up possession on 8 December 1989, but made known that she would not complete the contract on 1 November 1989 unless she did not have to give up possession on 8 December 1989 and could remain in possession of the property for some time thereafter, the respondents did not have to pay the $157,500 on 1 November 1989. The respondents were not obliged to give the appellant longer possession of the property. If there was an “intimation” that it would be pointless for them to complete the contract for their part because, unless they agreed to give the appellant longer possession of the property, the appellant would not complete the contract, and they acted on the intimation, then they were absolved from performance of their obligation to complete by payment of the balance of the purchase price. The respondents submitted, within a notice of contention, that the facts led inevitably to this result.
The evidence was sparse, but in my view the respondents’ submission should be accepted.
As I have said, the deposit was to be invested in a way stated in the contract. Apparently responding to a request that the deposit be released to the appellant, by a letter dated 26 September 1989 the respondents’ solicitors wrote to the appellant’s solicitors -
“We refer to your letter dated 21 September, 1989.
We do not understand your point that there may be a trade-off by virtue of our client releasing the deposit to your client, to assist us getting vacant possession by the 8 December as your client only has licence to occupy the premises until 8 December and vacant possession will be required by such date in any event.
Notwithstanding the foregoing our client is prepared to release the deposit to your client provided that interest is paid to our client, which would otherwise have been paid had the deposit been held in trust, at a rate of 16%”.
An arrangement for release of the deposit by instalments was made, and it was released. The letter of 21 September 1989 was not in evidence. It is apparent that within a few days of exchange the appellant had conveyed to the respondents that she might not give up possession on 8 December 1989.
It appears from a letter of 14 November 1989 later referred to that there were unfulfilled discussions of settlement earlier than 1 November 1989. The relevant part of the letter, which was from the respondents’ solicitors to the appellant’s solicitors, was -
“You will note that your client requested settlement earlier than the date specified in the Contract for completion and eventually we agreed to such proposal subject to our receiving reasonable assurance that your client would vacate the premises no later than 8 December 1989, however your client failed to take up such offer. … “
The evidence included a record of a telephone message from the respondents’ solicitors to the appellant’s solicitors on 20 October 1989 reading -
“Prepared to settle 1st November on cond she be out of on 8/12 property for that $4,000 Retain money forfeited out by that - won’t settle”
It is not easy to understand the message, and it was not explained in the evidence. Implicit in it, however, is that the appellant was taking the position that she would not, or at least might not, give up possession of the property on 8 December 1989.
In a letter dated 27 October 1989 the solicitors for the respondents wrote to the solicitors for the appellant -
“We refer to all previous discussions herein and confirm that our client is not prepared to allow your client to remain in the premises after 8 December 1989.
In fact we are instructed to put you on notice that our client has cancelled previous holiday arrangements and bookings for his family on the basis that they will be able to occupy the premises for the summer vacation period immediately subsequent to 8 December and should vacant possession not be available to our client in accordance with the terms of the Contract at such date our client will suffer considerable financial damage in making alternative commercial vacation arrangements and for which we are instructed our client would look to your client for compensation.
We would be obliged if you would impress upon your client the absolute necessity for the premises to be vacated by her by 8 December, 1989 and the legal consequences of her failure to do so.
In the interim we would be obliged if you would advise us of a suitable date for settlement of this matter.”

There was no evidence that the appellant’s solicitors replied to the effect that settlement was required on 1 November 1989, or on any date.
Some later communications between the solicitors cast light on the position as at 1 November 1989.

By a letter dated 9 November 1989 the solicitors for the appellant wrote to the solicitors for the respondents, referring to discussions between the solicitors and putting forward to what was described as “a proposal aimed at solving the problem which confronts our respective clients”. There was no evidence of the discussions.
The letter began by stating “something of the background to the problem which has arisen”. The substance of what followed was -
(i)the appellant was buying other land at Bucketty and having a yurt constructed on it, for which she needed the proceeds of sale;
(ii)construction time for the yurt was two months;
(iii)the respondents had wanted possession of the property by 8 December 1989;
(iv)the arrangement had therefore been that the respondents would complete the purchase of the property by 8 October 1989 but would permit the appellant to remain in occupation until 8 December 1989: this would have allowed the appellant to complete the purchase of the Bucketty land and have the yurt constructed;
(v) in the words of the letter -
“Your clients did not settle by 8 October and have still not settled. Accordingly our client has not been able to simultaneously settle the purchase of her land and therefore construction of the Yurt has not yet commenced. Accordingly the Yurt will not be completed by 8 December and therefore our client will not be able to give possession of Dangar Island by that date.
Our client considers that your clients have not honoured the original arrangement ‘to exchange and settle as soon as possible’. Had this been done and settlement taken place by 8 October or shortly thereafter (there is apparently some lee way in the two month period) the problem now existing would not have been created.
It is conceded that the contract dated 20 September does not refer to settlement by 8 October, and in fact contains the common six weeks plus fourteen days condition. The writer, in negotiating the condition giving the right to remain in possession until 8 December, was not aware until recently of a requirement (and on our instructions the agreement) that settlement take place two months prior to 8 December to enable the Yurt to be ready for occupation by that date. The writer had understood his instructions to mean that an exchange on or about 20 September would allow sufficient time for the Yurt to be ready for occupation by 8 December.
Our client instructs, however, that for the reasons set out above, your clients were aware that settlement by about 8 October was necessary to enable possession to be given by 8 December.
Our client further instructs that your clients have always been aware that our client cannot make a double move or arrange temporary accommodation because she has numerous pets including fourteen cats and four ducks.
The end result is that we have a problem which we submit requires a practical solution, as any continuing delay will only further delay completion of the construction of the Yurt.”
The proposal then put forward in the letter was for rent-free accommodation to the appellant for two months after completion and, if the yurt was not then ready, for a licence fee “until vacant possession is given”. It was said that, provided settlement took place promptly, it was expected that the yurt would be ready for occupation by the end of January 1990, perhaps earlier, although an earlier date could not be guaranteed.
This letter proposed a solution to a problem, and did not itself call for completion or name a date for completion. It can be seen why the appellant had asked for completion earlier than 1 November 1989; it can also be seen why the respondents would in return have sought (in the words of the letter of 14 November 1989) “reasonable assurance” that the appellant would give up possession no later than 8 December 1989. The appellant had been and was conveying that she could not give up possession of the property for (at least) two months after completion. The reasons for that were set out, and the letter further conveyed that she would not complete unless she could be assured that she would have possession of the property for at least the two months. Unless that were so, there was no problem: from the appellant’s perspective, the problem was that she did not have that assurance and, without it, would have to give up possession of the property on 8 December 1989.
The respondents’ solicitors replied by a letter also dated 9 November 1989. They said that they were obtaining instructions, and -
“In the interim however, we note that behind the suggestion of some prior agreement quite extraordinary as there were protracted discussions between the writer and your Mr Crompton prior to exchange of Contracts in order to reach a mutually agreed form of Contract and we were clearly instructed by our client to exchange on the basis of the formal Contract that has in fact been entered into and on no other basis.”
Evidence was given by Mr Alan Crompton of the appellant’s solicitors. He said that from the middle of November 1989, or even earlier, he had been seeking settlement, but that the respondents “were indicating a certain reluctance to settle without some assurance that [the appellant] would vacate the premises on 8 December 1989”. He also said that the respondents’ solicitors’ position was that their clients were prepared to settle “so long as they received some assurance that [the appellant] would leave come 8 December”, although he repeated that he detected “a reluctance or concern … that if settlement took place prior to 8 December that [the appellant] may not vacate on 8 December”. According to a letter from the appellant’s solicitor to the appellant dated 14 November 1989, the appellant’s solicitor had telephoned the respondents’ solicitor “who states that his clients are willing to settle immediately but still insist that you vacate by 8 December”. It is plain enough that the communications between the solicitors to that time were in the context of the letter of 9 November 1989, which the respondents’ solicitors had thus far only acknowledged, and that the settlement which the appellant’s solicitors were seeking was on the basis proposed in that letter. The basis was vacant possession in January 1990, not on 8 December 1989.
The respondents’ solicitors replied to the letter of 9 November 1989 by a letter dated 14 November 1989. The letter included -
“We now have instructions from our client who instructs us that there were vague preliminary discussions between our client and your client however your client is a person who talks at length in a rather distracted fashion about many issues which have little or no relevance to the matter in hand.
As foreshadowed in our letter of 9 November 1989 our client was at all times of the view that the Contract between the parties would be as settled between our firm and yours and we are instructed to deny most categorically that there were any representations of a contractual nature other than those contained in the Contract.
You will note that your client requested settlement earlier than the date specified in the Contract for completion and eventually we agreed to such proposal subject to our receiving reasonable assurance that your client would vacate the premises no later than 8 December 1989, however your client failed to take up such offer and you have consistently failed to advise of a date on which you are prepared to settle the matter. We repeat that our client has been since one week prior to the contractual date for settlement ready, willing and able to settle the matter and remains ready, willing and able to settle upon receipt of advice from you as to a proposed date for settlement.
Please note however that our client is not prepared to let your client remain in occupation of the premises subsequent to the 8th December 1989.”
The appellant submitted that her solicitors then sent to the respondents’ solicitors a letter dated 14 November 1989 calling for settlement on or before 17 November 1989. Such a letter was in evidence, but as a letter which the appellant’s solicitors advised should be sent but which was not sent. Even in response to the letter of 14 November 1989 from the respondents’ solicitors, the appellant did not advise of a date on which she was prepared to settle.
The appellant’s purchase of the Bucketty land was completed on 17 November 1989, using bank finance.
On 30 November 1989 Mr Crompton telephoned Mr Straton of the respondents’ solicitor, according to a file note “advising him of present position and progress with yurt and advising [the appellant] will be able to settle by mid-January although this cannot be guaranteed.” Mr Crompton explained in evidence that he meant giving possession rather than settlement. The file note continued -
“Noting Mr S’s comment that ‘if can’t give possession by Christmas my clients will not be impressed’.
(otherwise noting he seems to accept the situation for what it is)”
On 1 December 1989 the appellant’s solicitors wrote to the respondents’ solicitors, saying that the purchase of the Bucketty land had been completed and construction of the yurt was to begin, and -
“Our client has instructed us to convey to you the following:
1.She expects to be able to give vacant possession of the Danger [sic] Island property by mid-January, but this cannot be guaranteed and could take until as late as the end of January in view of the intervention of the Christmas and New Year periods.
2.She expects settlement forthwith together with the right to occupy the property after settlement for up to two months, such occupation to be free of charge until mid-January and thereafter at an occupation fee of $100.00 per week until vacant possession is given. Our client considers this offer to pay occupation fees from mid-January (if continued occupation is necessary) to be a concession to your clients having regard to what she instructs to have been the original agreement with your clients for two months occupation entitlement after settlement, such agreement being arrived at on a verbal and handshake basis.
Kindly advise at your earliest convenience whether your clients are agreeable to settling forthwith on the above terms.”
The response by a letter of 6 December 1989 was that the respondents’ instructions remained as in their solicitors’ letter of 14 November, 1989, and “We will require vacant possession on settlement of the matter.”
In the absence of more complete evidence, inference is permissible, and the appellant’s stance in November-December 1989 reveals her stance as at 1 November 1989. In my view, it was “intimated” to the respondents that the appellant would not complete the contract unless she did not have to give up possession of the property until a date later than 8 December 1989, if that were necessary for the construction of the yurt and her move to the Bucketty land. That was made apparent by the appellant’s failure to stipulate a date (in context, meaning time and place as well as date) for completion, as it would have appeared to the respondents because she insisted on at least the two months she said had originally been agreed and was not able or prepared to give up possession of the property until the yurt had been constructed and she could move to the Bucketty land; by the letter of 9 November 1989, which must have reflected the appellant’s stance in previous communications between the solicitors and between the parties; and by the letter of 1 December 1989, which explicitly said that the appellant “expects settlement forthwith together with the right to occupy the property after settlement for two months” (emphasis added). I conclude that as at 1 November 1989 and thereafter the appellant’s position as conveyed to the respondents was that she wanted settlement on the basis of what she contended was, in the words of the letter of 1 December 1989, “the original agreement … for two months occupation entitlement after settlement”, and only on that basis.
It follows, in my opinion, that the respondents were absolved from performance of their obligation to complete by payment of the balance of the purchase price, on 1 November 1989 and thereafter. They did not breach the contract in that respect, nor did they repudiate it. It may be noted that until October 1998 the appellant maintained in her cross-claim that she was entitled to the two months’ possession under what I have referred to as the true contract, and that when the commencement of the proceedings brought discussions with a view to completion of the contract the discussions foundered because even then the appellant would only complete on terms not in the contract, including that the respondents concede that the contract was subject to the two months’ possession. By that time the appellant had moved to the Bucketty land. What matters is the “intimation” to the respondents, but this demonstrates the firmness with which the appellant sought what she believed was her entitlement.
The other grounds of appeal require less lengthy attention.
Ground 1: The Judge allowed the Plaintiffs to present evidence of the private conversations between the Defendant and her ex solicitor (who she is suing for negligence) and yet would not allow the Defendant to present evidence between herself and another solicitor which would have corroborated her evidence.
Mr Crompton was called by the appellant. His cross-examination included questions as to communications with the appellant, for example as to advice and instructions in November 1989 about giving a notice to complete to the respondents. The appellant did not object to this. In her own evidence thereafter given the appellant sought to give evidence of what she said in July 1990 to her then solicitor, Mr Daly, referring to letters from herself to Mr Daly and saying “it shows I was trying to settle”. Her complaint was that this evidence should have been permitted.
The communications between the solicitors as to settlement were relevant, I will assume even in July 1990, but what the appellant told Mr Daly about settlement at that time was not. The evidence was correctly rejected as irrelevant.
Ground 2: The Judge allowed the Plaintiffs to use as evidence a “without prejudice” letter in which the Defendant was given “tactical advice” by her ex-solicitor which was detrimental to her.
The letter to which the appellant referred was the letter of 9 November 1989. It was not a letter giving the appellant advice, but a letter to the respondents’ solicitors. It was headed “without prejudice”, but was tendered by the appellant in her own case. The appellant’s complaint was that it contained what she described as only a proposal, and that because it was only a proposal the respondents should not have been allowed to “use” it.
So far as the complaint rested on the without prejudice nature of the letter, it was without foundation because the letter was tendered by the appellant. So far as it rested on the letter containing only a proposal, once in evidence as a communication between the solicitors it could be used - by the appellant or the respondents - for whatever significance the communication and the terms of the communication had. The respondents were entitled to “use” it.
Ground 3: The Judge allowed the Plaintiffs to present evidence about other cases in which the Defendant had tried to solve her problems, which were not relevant to this case, to try and cause her detriment.

One occasion was identified by the appellant. In the cross-examination of Mr Crompton he was asked some questions about proceedings brought against him by the appellant in the District Court, in which the appellant alleged negligence on his part in relation to the sale of the property. In the course of examination in chief of Mr Crompton the appellant had obtained Mr Crompton’s adoption of the evidence in some pages of the transcript of his evidence in those proceedings, without specifically identifying the proceedings. The questions in cross-examination were directed to identifying the proceedings and, at least on Mr Crompton’s understanding, the allegations made against him. At the beginning of these questions the appellant objected, saying “It is part heard”. Young J ruled, “That doesn’t matter”.
Although she did not specifically go to it in the appeal, at a later time there were put to the appellant some questions and answers from the transcript of her evidence in the proceedings against Mr Crompton and the Bank of New Zealand proceedings next mentioned. She affirmed her evidence in part and qualified it in part. With the first reference at this time to the proceedings against Mr Crompton, the appellant queried “whether that is relevant to this case”. It may be that she intended that the ground of appeal extend to this occasion also.
The appellant’s complaint in the appeal was that the evidence was not relevant. She also complained, going beyond the ground of appeal, that she was not allowed to present evidence about her other cases. This appears to have been a reference to some other proceedings between the appellant and the Bank of New Zealand in the District Court, and to the disallowance of evidence which the appellant began to give with the words, “When I cross-examined Mr Straton in the District Court at Gosford …”. There was an objection, and the appellant then tendered, and there were admitted without objection, two pages of the transcript of the evidence of Mr Straton in the Bank of New Zealand proceedings.
It was relevant, although perhaps of minor relevance, for the nature of the proceedings in which Mr Crompton had given his earlier evidence to be known. It does not matter, because if it was not relevant the evidence played no part in the outcome of the proceedings, and was not involved in the findings or reasoning of Young J or in these reasons. In principle there could be put to the appellant her evidence in the other proceedings, although as matters turned out her affirmation or otherwise of the evidence may not have had relevance; that evidence is not involved in the findings or reasoning in these reasons. The appellant was allowed to present evidence about the Bank of New Zealand proceedings, although with what Mr Straton had said being via the transcript rather than the appellant’s account, and I can not see any error in relation to this or, having read the transcript of the proceedings before Young J in full, anything else to do with the appellant presenting evidence about her other cases. There is nothing in this ground warranting appellate intervention.
Ground 4: The defendant was not allowed to produce evidence which showed quite clearly that the Plaintiffs had refused to settle the sale contract.
This was said to be the same as ground 1. It need not be separately considered.
Ground 5: The Judge allowed the Plaintiffs to produce Transcript of other proceedings in spite of the objection of the Defendant.
This was concerned with the use of the transcript of the proceedings against Mr Crompton and the Bank of New Zealand proceedings, to put to the appellant some questions and answers from her evidence.
Early in her examination in chief of Mr Crompton the appellant tendered part of the transcript of his evidence in the proceedings against him. Objection was taken on the ground of relevance. In the explanation which Young J then gave to the appellant he said that the transcript was not admissible except by consent, but that Mr Crompton could be asked the same question as he was asked in the transcript. That seems to have been done, and then there was consent to Mr Crompton affirming generally the evidence in some pages of the transcript and the tender of those pages.

In her own evidence in chief the appellant referred to discovery in the Bank of New Zealand proceedings, in a context in which it appeared that she was going to make use of documents obtained on discovery. Young J informed her that she could not do so without the permission of the District Court (see for example Home Office v Harman (1983) 1 AC 280).
When in the cross-examination of the appellant the transcript of the Bank of New Zealand proceedings was first used in the manner described above, she objected, saying that Young J had told her that she could not use “this evidence”, meaning the transcript. It is not clear whether the appellant had in mind his Honour’s ruling in relation to the transcript of Mr Crompton’s evidence or his ruling in relation to discovered documents. Whatever she had in mind then, her complaints on the appeal were, I think, that the respondents’ permitted use of the transcript in her cross-examination conflicted with the earlier rulings as to her use of the transcript and of discovered documents.
There was no conflict. The transcript was not a document discovered in the Bank of New Zealand proceedings, and was not subject to the restrictions on user applicable to such documents. Its use to put to the appellant her earlier evidence was different from the use of the transcript of Mr Crompton’s evidence which the appellant had at first attempted; indeed, it was consistent with the use the appellant thereafter made of that transcript. There was no proper objection to the course taken by the respondents.
Ground 6: The Judge allowed the Plaintiffs to produce evidence of matters prior to the Contract but he would not allow the Defendant to produce evidence of matters prior to the Contract.
From time to time in her case the appellant put forward evidence, in examination in chief of Mr Crompton and in her own evidence, apparently intended to establish that special condition 7 had become part of the contract by mistake and that the contract should have provided for her possession of the property for two months after completion. The evidence was objected to and was rejected, and Young J explained that “once the contract is signed all the court has to do is look at the terms of the contract and see what they are”. The appellant’s complaint was that she should have been permitted to lead and give this evidence. From earlier parts of these reasons, the significance of this in the appellant’s mind can readily be seen.
The appellant had sued on the contract as it stood, and the evidence was properly rejected. It was not relevant.
Ground 7: The Judge would not allow the Defendant to produce the Affidavits of the Plaintiffs in spite of the fact that they refuted claims of the Plaintiffs in the Court, showed quite clearly that the Plaintiffs refused to keep the terms of the written contract and showed quite clearly that the Plaintiffs were aware of the Defendants circumstances prior to the contracts being exchanged.
It seems that the respondents had filed in the proceedings a number of affidavits sworn by Mr Hayden, Mrs Hayden and Mr Straton. At the end of her own evidence in chief the appellant said that the Haydens and Mr Straton had “given me affidavits on the happenings and I don’t agree with them”, and that “I just want to show that they are wrong”. The effect of what Young J then said was that she could not do so at that stage, that she could after the Haydens and Mr Straton had given evidence, and that if the Haydens or Mr Straton did not give evidence it would not matter whether they were right or wrong.
At the conclusion of the appellant’s case the respondents said that they would not call any evidence. The appellant said, “What about the affidavits?”, and that the affidavits showed that the respondents “would not settle”. She asked whether she could call the Haydens and Mr Straton “because their evidence is entirely different”: she did not say from what. She had earlier said that she wanted to “phone up the friend who gave some advice and ask what to do”, and his Honour replied to the last enquiry -
“When you ask your friend tonight ask that friend to advise you as to the dangers of calling the enemy to give evidence in your case. It is a very dangerous thing to do. Your own friends will doubtless give you some advice. The answer to your question, it is legally possible for you to do it but it is a most unwise course to take in almost every case.”
The appellant asked again whether she could read the affidavits, and his Honour said -
“I have told you before technically you closed your case but leaving aside the technicalities it is legally possible but it is usually unwise. I say if you have that in mind you should talk it over with your friend tonight”.
There was then an adjournment overnight. The next morning the appellant tendered a further letter, but did nothing to read the affidavits or tender part of their contents.
The appellant’s complaint on the appeal was that she should have been permitted to use the affidavits, in a way which her submissions did not make clear, to show that the respondents knew of her circumstances and knew that she was going to settle. However, Young J did not prevent her from using them for this or any other purpose, if relevant to the issues in the proceedings. When the matter was first raised his Honour correctly ruled that, the purpose then stated being to show that the affidavits were wrong, they should not be put before him: at that point whether they were right or wrong had not arisen, and it would not arise unless and until the affidavits were read in the respondents’ case. When the matter was later raised the stated purpose was perhaps different, to show that the respondents would not settle, and the appellant was aware that she could use the affidavits by calling their makers although she was properly told of the dangers which she might encounter. Presumably with the advice of her friend, she must have decided not to use the affidavits. There was no error in relation to the use of the affidavits.
Ground 8: The Judge refused the Defendant leave to present evidence that was obtained by discovery yet this same evidence was also subpoenaed. The Judge allowed the Plaintiffs to produce subpoenaed evidence.
This was concerned with the discovery in the Bank of New Zealand proceedings. As earlier noted, Young J ruled that the appellant could not use the documents obtained on discovery without the permission of the District Court. The appellant said that the documents the subject of discovery had been subpoenaed. There was no evidence of that, but assuming it to be so his Honour did not prevent the appellant from making such use of the subpoenaed documents as was otherwise open. There was no appealable error.
Ground 9: The Judge bullied and tried to hurry the Defendant. The Defendant, was unrepresented. The Defendant was disconcerted and stressed by this treatment.
The appellant referred to two passages in the transcript which she said revealed that she was bullied and hurried. She said that in ways not revealed by the printed word of the transcript she was placed under stress in her conduct of her case at the trial.
The two passages, and some other parts of the transcript, indicate that Young J was concerned to ensure that time was not wasted, but no more. From the appellant’s conduct of the appeal, it is evident that there would have been occasion for his Honour to endeavour to recall the appellant to what the proceedings were about, and to prompt her to move forward.
All litigation is stressful. An unrepresented litigant, having to operate in an unaccustomed environment and subject to constraints of the substantive and procedural law, may well feel disconcerted and stressed. But that will not be because of any inappropriate action by the judge, who is obliged to apply the substantive and procedural law and to hold an even balance between the parties in the conduct of the proceedings. A reading of the transcript of these proceedings shows that in many ways Young J accommodated the appellant’s unfamiliarity with litigation processes, and as has been seen she had the opportunity to consider her position and obtain the advice of her friend overnight before the taking of evidence concluded. I do not think that the appellant was in any way deprived of a just hearing of the proceedings, and there is no occasion for appellate intervention under this ground.
Ground 11: The Transcript in this matter is incomprehensible in parts. The dates in this transcript are inaccurate and distort the evidence.
The appellant listed a number of alleged transcript errors. She went to some of the errors in dates in the course of her submissions. Apart from the fact of the errors, it was not clear what her complaint was: she was asked whether she said that the errors were material to the result of the proceedings, and was unable to indicate how they might have been.
There were some obvious errors as to dates in the transcript, although not necessarily errors in transcription. That is not uncommon. The two passages listed as incomprehensible were statements or questions by the appellant. They read strangely, but were not necessarily errors in transcription. There is no reason to think that Young J was misled by the errors or any obscurity in the two passages just mentioned, and the statements or questions (as distinct from the answers) were not material to the result in the proceedings. There is nothing in this ground.
Ground 12: Prior to this matter being heard:
(a)The Appellant/Defendant requested that the Respondents/Plaintiffs produce evidence and documents that were relevant to this matter, should have been retained by the Solicitor/Respondents. These documents have been refused the reason cited that they are no longer in existence.
(b)Due to (a) above, the Appellant/Defendant requested that the Plaintiffs file Affidavits outlining the circumstances of this matter to include the time the Plaintiffs bought the subject property from the Defendant’s mortgagee.
(c)The orders as per (b) above were made by the Registrar on 25 June 1998.
(d)The Plaintiffs refused to comply with the Registrar’s orders as per (c) above. The orders disappeared from the Court documents.
(e)The Appellant/Defendant tried to amend her cross claim to include the continued circumstances when the Plaintiffs purchased her property from her Mortgagee. Due to being refused the evidence, which should have been in the possession of the Plaintiffs, or the Affidavits in lieu of this evidence, and which were refused to the Defendant, she was unable to properly amend her claim. In a preliminary hearing, Judge Windeyer refused the Defendant more time or delay this hearing until she was able to get the necessary evidence.
(f)The Plaintiffs have kept this matter on foot for ten years without setting it down for trial. One week prior to the hearing, the Plaintiffs withdrew their claim for Specific Performance, leaving the Defendant at a disadvantage. The Defendant was also disadvantaged, being out funds - due to not being paid for her property in 1989 and therefore unrepresented.
(g)The Plaintiffs representatives removed “original” documents from the subpoenaed files. This evidence was therefore not accessible for the Defendant. Further, the Defendant has no way of being sure that the document produced at the hearing was bona fide.
The essential complaint under this ground, as stated by the appellant, was that she had been “unable to get the evidence I needed to prove my case”. It seemed to have three elements.
The first element was that the respondents had not complied with an order made by the Registrar on 25 June 1998, which the appellant considered had deprived her of evidence for her case. She pointed to an entry in the Court’s computerised records for that day reading, after correction of typing errors, “By consent as per notice of motion 1 & 2 that the pltfs comply with the notice to produce dated 28.2.98 and extended to 1.4.98 that the pltfs and their solicitor P J Straton extend their affidavits to include the period until after December 1991 when they purchased the property the subject of these proceedings from the Bank of New Zealand”. The appellant appears to have considered that this obliged the respondents and Mr Straton to file further substantive affidavits, as distinct from affidavits of discovery.
That is doubtful, although the reference to Mr Straton would be odd if the order were only as to affidavits of discovery. However, even if it were so the order would only requiring the filing of affidavits concerning the later period if the respondents intended to rely on the events of the later period: it would not require the respondents to put forward affidavits for the benefit of the appellant. In any event, the appellant made no application to compel the respondents to file the further affidavits, but went to trial without them.
The second element was that Windeyer J had refused to delay the hearing. It was linked with the first element, in that the appellant said that the hearing should have been delayed because she did not have the further affidavits. We were taken to the transcript of the appellant’s application to amend her cross-claim made to Windeyer J on 9 October 1998. At that time the hearing of the proceedings was fixed for 27 October 1998. The application was refused, but with liberty to apply again with a freshly drawn pleading. No application to delay the hearing was made: on the contrary, the transcript shows that the appellant was anxious to proceed on the appointed date. The appellant applied to Windeyer J again on 21 October 1998, when the further amended cross-claim was filed in court, and in her submissions on the appeal she said that she asked Windeyer J to delay the hearing on that occasion.
There was no notice of motion, we were not taken to any transcript of the occasion, and the brief reasons given by his Honour when granting leave to amend the cross-claim make no mention of a request, formal or otherwise, to delay the hearing. No application was made to Young J on 27 October 1998. I do not think it has been shown that there was a refusal to delay the hearing of the proceedings.
The third element was that in para (g) of this ground. The document in question (not documents) was the contract. The appellant said in her submissions on the appeal that the respondents had subpoenaed her solicitors’ documents “from the District Court”, that when she inspected the documents there was no contract in them, but that “a contract document appeared in the Court … and yet they [the respondents] say they got it from the subpoenaed file and put it back and they say they took the original out, it had to go back to the files”. This appears to have been a reference to the respondent’s counsel before Young J saying, after judgment had been given, that he suspected that the contract in evidence before his Honour had come from the District Court documents and that it should go back to them.
What the appellant said in the appeal is questionable when the transcript of that occasion records the appellant saying that the contract in evidence before his Honour (which she had tendered) was her copy , and “The one they took, they took out of the court packet and used as an exhibit”. We are not in a position to determine what might have happened about a contract in the District Court documents, and what the appellant said should be treated as no more than her assertion. It does not matter in the appeal, because the appellant had a contract which was plainly the contract as exchanged, and tendered it as the contract.
This ground does not provide any reason for appellate intervention.
Ground 13: Due to all the relevant evidence that the Defendant needed being refused to her, she was forced to call her ex-solicitor to give evidence in this matter. This witness, who the Defendant is suing for negligence, gave evidence that was detrimental to her. In spite of the Defendant producing documents which showed the witnesses statements to be untrue, the Judge accepted the evidence of the witness. The Judge disregarded written evidence which refuted this witnesses statements and also refused the Defendant the opportunity of asking questions of this witness which would also show his evidence to be untrue.
The witness was Mr Crompton. There was no reason why Young J should not have accepted his evidence for whatever part it played in his Honour coming to his conclusion. The appellant’s complaint was that she was not allowed to show documents to Mr Crompton “to show that the evidence was different to what he was giving”. When requested to take us to where she attempted to do this but it was not allowed, she referred in the transcript to occasions in re-examination when she wanted to take Mr Crompton to letters written by his partner and to a letter written by the Commonwealth Bank. The respondents objected, and his Honour upheld the objections.
Either because what the appellant wished to do did not arise out of the cross-examination of Mr Crompton or because in any event she wished to ask him about documents not his documents as some form of cross-examination of her own witness, or for all these reasons, his Honour correctly upheld the respondents’ objections. We were taken in the appeal to the so-called letter from the Commonwealth Bank, and it was in fact an internal note of the bank. There is nothing in this ground.
Ground 14: The Defence was filed during the Hearing. The Defendant, who was unrepresented, had no time or assistance to study this document.
The further amended cross-claim was filed in court on 21 October 1998. The defence to it was filed in court on 27 October 1998, at the commencement of the hearing. The appellant said that she had read it, and -
“HIS HONOUR: Do you know what to do with it?
LACEY: There are no rubbish bins near us.
HIS HONOUR: In the paragraph marked 1 write A, in other words they admit it. On the 2 put a D, they deny that, you have to prove it. Against 3 and 4 put a D to show they deny that and show you have to prove it; against 5 put part A to show they partly admit it then 6, 7, 8, 9, 10 and 11 you can put a D against, you have to prove all that. There is a 13 which is something that they may have to prove.
LACEY: I see what you mean.
HIS HONOUR: You have to prove what is in your cross-claim. They have to prove any defence which sets up something new.”
The appellant’s complaint, as stated, was that she “should have been able to at least have a couple of days to go and ask somebody about it”. She had been given some assistance by Young J, and she had said that she understood. She did not ask for time. She knew what she had to prove; it included that the respondents had breached the contract by failing to complete on 1 November 1989 and thereafter. As earlier noted, later the appellant had the overnight adjournment and indicated that she wanted to “phone up the friend who gave some advice and ask what to do”: the context was using the affidavits of the respondents and Mr Straton. Still she did not ask for time. She can not now complain that she should have been given time.
The appeal books were not prepared in the normal manner, and contained a great deal of material which was not in evidence before Young J. It was necessary to winnow from the documents in the appeal book those which were in evidence. The appellant applied to have additional material received, being the documents referred to in her affidavits sworn 26 June 2000 and 7 July 2000 and taking up most of the remaining documents in the appeal books.
The appellant was requested to identify as she went to each ground of appeal the material not in evidence before Young J on which she wished to rely. She referred to a small number of documents when dealing with the earlier grounds of appeal, and we ruled that we would not receive them. She referred generally to the affidavits of the respondents and Mr Straton, which together with their annexures were reproduced in the appeal books, when addressing ground 7, but their content did not matter to the disposal of that ground: the affidavits should not be received. She referred to the Court’s record of proceedings and parts of the transcript of the application before Windeyer J described earlier in these reasons, and without troubling about its correct status this material should be received: it is in a different category from the documents next mentioned. In her submissions in reply she began to refer to documents in the appeal books not in evidence before Young J as documents showing what really happened about completion of the contract. It had become apparent that none of this additional evidence met the requirements of s 75A of the Supreme Court Act. We indicated that we would not receive it.

In my opinion the appeal should be dismissed with costs.
FITZGERALD JA: I agree with the other members of the Court that this appeal should be dismissed with costs. I agree with the reasons for judgment of Giles JA in relation to the grounds other than ground 10. While I am also in general agreement with his Honour’s reasons for rejecting that ground, there are some matters referred to by his Honour upon which I do not need to comment and I propose to add some additional comments.
Once 8 December 1989 passed without the contract being lawfully terminated by either party, it remained binding for the benefit of both parties. After 8 December, the appellant was obliged to give possession of her property on completion. She was unwilling to do so. She did not prove that she was entitled after 8 December to refuse possession on completion because of some breach of contract by the respondents.
The respondents sued for specific performance. While that action was on foot, the appellant became unable to complete her contract with the respondents because her mortgagee sold her property to the respondents. It was not argued that the respondents were not permitted to buy the property from the mortgagee without discontinuing their action for specific performance.
In these circumstances, the appellant did not prove that either her loss of her contract with the respondents or any consequential loss was caused by a breach of the contract by the respondents.
HEYDON JA: I agree with Giles JA.

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LAST UPDATED: 24/07/2000

[2000] NSWCA 182

24 July 2000

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