| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : LUKEY -v- STONEHOUSE & ANOR [2009] WADC 92 CORAM : PRINCIPAL REGISTRAR GETHING HEARD : 26 MAY 2009 DELIVERED : 17 JUNE 2009 FILE NO/S : CIV 1 of 2009 BETWEEN : JOHN JULIAN LUKEY Plaintiff
AND
COLIN RICHARD STONEHOUSE
AMANDA LOUISE STONEHOUSE
Defendant
Catchwords: Practice and procedure - Summary judgment - Estoppel Legislation: Strata Titles Act 1985 (WA) Result: Application allowed - judgment awarded
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Representation: Counsel:
Plaintiff : Mr G D Cobby
Defendant : Mr I R Freeman
Solicitors:
Plaintiff : Chew & Mathews
Defendant : Lavan Legal
Case(s) referred to in judgment(s):
Ansearch Ltd v Wavetech Pty Ltd [2006] WASC 184
Arcos Ltd v EA Ronaasen & Son [1933] AC 470
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Australian Crime Commission v Gray [2003] NSWCA 318
Brown v Universal Guarantee Pty Ltd [1968] WAR 23
Buildev Development v PIC Sales Pty Ltd [2003] NSWSC 1245
Capper v Thorpe [1996] ANZ ConvR 539; BC 9601397
Considine v Citicorp Australia Ltd [1981] 1 NSWLR 657
Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Highmist Pty Ltd v Tricare Ltd [2005] QCA 357
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Kok Hoong v Leong Cheong Kweng Mine Ltd [1964] AC 993
Legione v Hateley (1983) 152 CLR 406
Mitchell v Schofield [2007] WASC 303
Morgan v Pallister [2004] WASC 188
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305
Shah v Shah [2002] QB 35
Stirling v Maitland & Boyd (1864) 5 B & S 841; 122 ER 1043
Tonitto v Bassal (1992) 28 NSWLR 564
Tudor Developments Pty Ltd v Makeig [2007] NSWSC 1116
United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
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Webster v Lampard (1993) 177 CLR 598
Wendt v Bruce (1931) 45 CLR 245
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71
Woodhouse AC Israel Cocoa Limited SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23
Yaxley v Gotts [2000] Ch 162
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1 PRINCIPAL REGISTRAR GETHING: By application dated 28 January 2009, the plaintiff sought summary judgment against the defendants. The plaintiff's claim arises out of a contract which he entered into with the defendants in August 2007 to purchase a proposed strata lot on which a townhouse was to be constructed. The plaintiff terminated the contract when a separate title for the strata lot was not issued by the required contract date. The plaintiff seeks a declaration that the contract was validly terminated as well as repayment of the deposit with interest. The defendants resist the claim on the basis that either the date by which the separate title had to be created was validly extended or, alternatively, that if it was not technically extended, the plaintiff is estopped relying on the expiration of the original Registration Date as a basis for termination.
2 In support of its application, the plaintiff filed affidavits sworn 28 January 2009 and 29 April 2009. The plaintiff also relies on an affidavit of his solicitor, Idris Mark Owain Matthews, sworn 29 April 2009. 3 The defendants rely on an affidavit of the first-named defendant, Colin Richard Stonehouse, sworn 30 March 2009. They also rely on an affidavit of Janelle Marie Laretive sworn 31 March 2009. Ms Laretive was the selling agent engaged by the defendants to market the property. The defendants further rely on an affidavit of Matthew Graeme Hicks sworn 9 April 2009. Mr Hicks is the principal of the settlement agent which both the plaintiff and the defendants retained to arrange settlement under the contract.
Relevant law 4 It is well established that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. Great care must be exercised to ensure that under the guise of achieving expeditious finality, a party is not improperly deprived of its opportunity for the trial of the case in the appointed manner by the Court: General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125 at 129-130. 5 The authorities also establish that the Court at first instance should be particularly astute not to risk stifling the development of the law by summarily terminating actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie: Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373. (Page 5)
6 The burden of persuasion in a summary judgment application was considered by Pullin J (as his Honour then was) in Morgan v Pallister [2004] WASC 188 at [4] in the following terms: "The plaintiff carries the burden of persuading the court that the claim is a good one, that there is no defence to it, that leave to defend should not be granted, and that judgment should be given for the plaintiff. The party showing cause against the application assumes an evidentiary burden but the overall burden of persuasion remains on the applicant. The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. It is clear however, that the procedure is not confined to cases which are immediately plain and obvious and the fact that a transaction is intricate does not disentitle the plaintiff to relief in a clear case. It was never intended that when the facts are in dispute, an action should be disposed of summarily. If a defendant's affidavit reveals inconsistencies which might in a trial persuade a court not to believe the defendant's evidence, this will not necessarily lead to judgment for the plaintiff. It is not necessary to cite authority for these propositions." 7 Where there are disputed facts, and in the absence of cross-examination, the application is to be determined on the basis that the defendant's version of the facts, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action: Webster v Lampard (1993) 177 CLR 598 at 608. In the same case, the members of the High Court had previously commented that the "issue before the learned Master on the application for summary judgment was … whether the material before the Master demonstrated that the action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail" [at 602]. If after argument there remains real uncertainty as to the plaintiff's right to judgment without further investigation of the facts, summary judgment must be refused: Ansearch Ltd v Wavetech Pty Ltd[2006] WASC 184, at [28]; Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 at 335. 8 In considering the facts, I use the term "material" as opposed to "evidence" before me as not all of the contents of the affidavits filed by the defendants comprise admissible evidence in their current form. However, I will assume that the defendants will convert any material into admissible evidence for the purposes of the trial. (Page 6)
The plaintiff's case 9 At all material times, the defendants were the registered proprietors of a property at 31 Troy Terrace, Daglish. They proposed to develop the property by subdividing it into four strata lots and building four townhouses. 10 In March 2007, the defendants entered into an exclusive selling agency agreement with Acton Central Real Estate ("Acton") for the sale of the units to be constructed at 31 Troy Terrace. The individual real estate agent engaged was Ms Laretive. In about February 2008 Ms Laretive ceased employment at Acton and commenced employment with Coakley & Martin Pty Ltd. Ms Laretive deposes that when she ceased employment at Acton she continued to act as agent for the sale of the properties at 31 Troy Terrace (par 4). 11 By contract dated 3 August 2007 the plaintiff agreed to buy proposed Unit 2 at the development at 31 Troy Terrace. This unit was identified as proposed Lot 2 on strata plan 52935 ("the Property"). The form of the contract was the standard REIWA contract for sale of land or strata title by offer and acceptance ("Contract"). On or about 27 August 2007 the plaintiff paid a deposit of $62,250 ("Deposit") to the defendants' real estate agent in accordance with the Contract. 12 The Contract annexed a set of Special Conditions ("SC"). SC cl 4.2 provides that: "Subject to the other provisions of the Contract, the Seller must give the Buyer a notice at a time (as determined by the Seller) after Registration has been effected and a separate indefeasible certificate of title for the Property has been created." 13 "Registration" is defined in SC cl 32 as "registration of the Plans as a strata title at Landgate and the creation of a separate indefeasible title for the Property". 14 SC cl 5.3 provides: "The sale and purchase of the Property under the Contract is conditional on Registration being effected on or before the Registration Date (or by any extended date notified by the Seller to the Buyer in accordance with Special Condition 5.4)." 15 "Registration Date" is defined in SC clause 32 as "30 September 2008". (Page 7)
16 SC cl 5.4 provides: "Subject to Special Condition 5.7, the Seller may (but is not obliged to) extend the Registration Date, on one or more occasion, if there are delays in effecting the Development for any of the following reasons: (a) Damage by an act of nature; (b) An act of war or civil commotion; (c) Industrial disputes; (d) Dispute with neighbouring owners; (e) Delays in obtaining an Approval but only if the Seller has acted reasonably in trying to obtain that Approval; (f) Unfavourable weather conditions; or (g) Anything else beyond the Seller's control." 17 SC cl 5.5 provides: "If the Seller wishes to rely on Special Condition 5.4, the Seller must give the Buyer a written notice stating the length of delay and the reason for it, which will be conclusive evidence." 18 SC cl 5.7 provides that the "Seller is not entitled to extend the Registration Date beyond the Last Date". The "Last Date" is defined in SC cl 32 to mean 31 December 2008. 19 SC cl 5.13 provides: "Without limiting Special Condition 5.11, if the Seller does not give the Buyer a notice under Special Condition 4.2 by the Registration Date (or by any extended date notified by the Seller to the Buyer in accordance with Special Condition 5.4), then the Buyer or the Seller may terminate the Contract by giving notice of this to the other." 20 SC cl 5.14 provides: "If the Contract is terminated under any of Special Conditions 5.10, 5.11, 5.12 or 5.13, the Contract will be at an end and the Deposit and any interest on it will be paid to the Buyer and (Page 8)
neither party will have any further rights or obligations under the Contract (except for any rights or obligations which are expressed or implied to survive termination)." 21 The Contract provides that the 2002 REIWA/Law Society General Conditions ("GC") are incorporated into the Contract so far as they are not varied by or inconsistent with the Special Conditions. SC cl 1.2 repeats this clause and excludes certain conditions of the General Conditions from the Contract, none of which are relevant for present purposes. 22 The defendants place reliance on GC cl 21.1 and cl 21.2. Those clauses provide: "21.1 Requirement for Notice
A Notice to be given under the Contract must be:
(a) in writing; and
(b) in the English language; and
(c) signed by the Party giving it or the Part's Representative. 21.2 Service generally
Subject to clauses 21.3 to 21.6, a Notice will be treated as having been duly given to a Party if served.
(a) on a Party which is not a company
(1) by delivering the Notice to the Party, personally; or
(2) by posting the Notice to the Party at the Party's address specified in the Contract; and
(b) on a Party which is a company
(1) by delivering the Notice to the company at its registered office;
(2) by posting the Notice to the company at its address specified in the Contract or at its registered office; or
(3) in accordance with Section 109X of the Corporations Act. 23 No separate certificate of title for the Property was issued on or before 30 September 2008. In fact the certificate of title for the Property was not issued until 8 December 2008. 24 On 2 October 2008, the plaintiff's solicitor Mr Matthews, telephoned Matthew Hicks of Ronson MacKinlay Conveyancers ("Ronson (Page 9)
MacKinlay"). Mr Hicks had the conduct of the settlement of the sale under the Contract on behalf of both the plaintiff and the defendants. 25 Mr Matthews asked Mr Hicks whether, in their capacity as the Buyer's (that is, the plaintiff's) settlement agent, Ronson MacKinlay had received any notice of extension pursuant to SC cl 5.4 (this should probably be a reference to SC cl 5.5). Mr Hicks said words to the effect that he would check his records and call Mr Matthews back. Shortly afterwards, Mr Hicks telephoned Mr Matthews and said words to the effect that he had not received any notice of extension from the Seller, that is, the defendants, pursuant to SC cl 5.4. This conversation appears in Mr Matthews' affidavit sworn 29 April 2009. There is no reference to this conversation in Mr Hicks' affidavit, sworn 9 April 2009. No application was made before me to allow Mr Hicks to file a subsequent affidavit putting on the record an alternate version of the position outlined by Mr Matthews. 26 By letter from his solicitor dated 2 October 2008, the plaintiff purported to terminate the Contract and demanded a refund of the Deposit. That letter was served on the defendants' settlement agent Ronson McKinlay by facsimile on the same date. 27 The plaintiff deposes that he verily believes that there is no defence to his claim in the action.
Issues for determination 28 Rules of the Supreme Court1971 O 14, r 2(1) provide that an application for summary judgment is to be supported by an affidavit verifying the facts on which the claim is based. The plaintiff has satisfied me that he has verified the facts on which the claim is based. The plaintiff has further deposed that in his belief the defendants have no defence to the action. The plaintiff thus has a prima facie right to judgment. 29 Where a plaintiff has satisfied all the requirements of O 14 to give it prima facie the right to an order in the terms asked, the burden shifts to the defendant to satisfy the court why judgment should not be given against it: Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 per Brinsden J at 110; Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71 per Murray J at 74. The defendant must satisfy the Court "with respect to the claim … that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of that claim": Rules of the Supreme Court,O 14 r 3(1). As noted in the quote above from Pullin J in Morgan (Page 10)
v Pallister (supra), this is an evidentiary burden, the overall legal burden of persuasion remaining on the plaintiff as applicant. 30 The defendants put forward two arguments which they say give rise to issues in dispute which ought to be tried. The first is that the date by which registration of the title had to occur had been validly extended. The second is that the conduct of the plaintiff amounts to an estoppel, preventing the plaintiff relying on the expiration of the original Registration Date as a basis for termination. Each is dealt with in turn below.
Validity of the extension – six key communications 31 The defendants' case is that the notice required by SC cl 5.5 comprised a series of six communications between the defendants and their representatives and the plaintiff and his representatives.
First communication – alarm system 32 By letter dated 30 November 2007 Mr Stonehouse wrote to the plaintiff enquiring whether he wished the defendants to make arrangements to install a security alarm and intercom system at the Property. Mr Stonehouse annexed a quotation from a company by the name of "Avant Guard Security". Mr Stonehouse deposes in his affidavit that in early December 2007 he had a telephone conversation with the plaintiff as follows (par 11, sub-paragraph numbering omitted in the quote): "I said words to the effect that I had sent him a letter regarding the installation of a security system at the Property. Mr Lukey said to me words to the effect that he had received and read the letter. I said words to the effect that, as I had set out in my letter, I could arrange for the installation of a security system at the Property at a good price, by a business I had dealt with previously, Avant Guard Security. he asked me about progress in the project and when completion was to take place. I said words to the effect that completion is expected in October 2008 but that the schedule for completion is 'under pressure' because it was difficult to get tradespeople to complete the necessary tasks. (Page 11)
33 The plaintiff, Mr Lukey, in his second affidavit recalls having a telephone conversation with Mr Stonehouse about the security system in late December 2007 resulting from a letter sent by Mr Stonehouse to him. The plaintiff states that during the conversation he said words to the effect that Mr Stonehouse should go ahead with the installation of the security system and he offered to pay for the security system at the time. Mr Stonehouse said words to the effect that the cost of the security system would be added to the final settlement amount. The plaintiff then asked Mr Stonehouse about the progress of the project and Mr Stonehouse with words to the effect that it was on target. The plaintiff states that he does not recall Mr Stonehouse making any comments as to completion being compromised through a shortage of labour or that completion might be some time in October 2008. Neither does he recall making any comment to the effect that the longer the project took to complete the better it was for him as an investor. 34 As noted above, it is appropriate that I determine the application on the basis of Mr Stonehouse's version of the facts.
Second communication – email to Mr Golledge 35 The second communication relied on is an email dated 7 December 2007 from Mr Stonehouse to a Dr Clayton Golledge, who was the purchaser of one of the other units. This email was copied to Ms Laretive. In the email, Mr Stonehouse makes a number of comments to the effect that the work was progressing at a slower rate than he would have liked. He concludes with the following: "Site access will improve, there will be more work faces and work will accelerate once the slabs are poured. I am targeting Oct completion, the recent timing setbacks will put this under pressure but it still remains the target. I will let you know if anything changes." (Page 12)
36 There is nothing in the material before me to the effect that Ms Laretive passed on this information to either the plaintiff or any person at the mutual settlement agent, Ronson MacKinlay.
Third communication – December 2007 Progress Report 37 On 8 December 2007, Ms Laretive emailed Mr Stonehouse advising that Progress Report #3 would be sent to the purchasers, including the plaintiff, by mail on Monday, 10 December 2007. Ms Laretive deposes that she sent out this progress report, but not when. The relevant two paragraphs of the Progress Report #3 are in the following terms: 38 Mr Stonehouse deposes that on the basis of Ms Laretive's email he "believed that the purchasers of the Troy Terrace units had been informed of the new completion date of October 2008" (par 10). 39 Ms Laretive deposes that she had sent two previous progress reports to the purchasers, including the Plaintiff. In the first, dated 14 September 2007, Ms Laretive states the following: "Stonehouse Developments have advised that they are confident on meeting the proposed deadlines of estimated completion October 2008 as the Building Team headed by Danny Benzie will be dedicated to the site once all groundwork is complete. I will keep you informed as we progress & please feel free to contact me at any time to discuss the project." 40 The second progress report is dated 1 November 2007. Its last paragraph contains the identical text as has just been quoted from the first progress report.
Fourth communication – email to Matthew Hicks 41 On 19 February 2008 Mr Stonehouse sent an email to Mr Hicks, copied to Ms Laretive. The email contains the following text: (Page 13)
Fifth communication – Ronson MacKinlay inquiry 42 In March 2008, Ronson MacKinlay appears to have made an inquiry of Acton, the selling agents, as to when the titles would issue. This is a critical document for the defendants because it is alleged to constitute the notice in writing as required by SC cl 5.5. For that purpose, it is appropriate that the relevant paragraphs of Mr Hicks' affidavit are quoted verbatim. They are as follows: "When managing the settlement of any property, it is my usual practice to contact the real estate agent managing the sale of a property periodically to check on the progress of the settlement of the property. This is especially the case where the property is sold off-the-plan and any buildings on the property have not been completed at the time that the contract of sale is executed by the parties. When I take on a settlement file either my assistant or I make a note of an appropriate date to check on the progress of the settlement in my electronic diary (which my assistant has access to). An alert then appears in my diary on that day. When the alert appears, if the inquiry is a simple one, my assistant will make the necessary telephone call. If it is a more complicated enquiry, my assistant will notify me and I will make the telephone call. Then, my assistant or I will make a note of any actions required as a result of the telephone call. I followed my usual practice in dealing with the settlement of Strata Lots. Attached hereto and marked 'MH-3' is a copy of a telephone note on the Ronson MacKinlay file. (Page 14)
I recognise the handwriting on the telephone note to be Ms Richelle Lovell's. Ms Lovell was my assistant at all material times. I recognise her handwriting because I have seen it on file notes and other handwritten documents on our files. I believe the telephone note to be handwritten on a print out of my electronic diary. The basis of my belief is that the electronic diary is of the same kind as is used at Ronson Mackinlay, and also because of Ms Lovell's writing on the print out. Based on my usual practice and the date and the reminder 'stonehouse titles???' that appear on the printout of the electronic diary, I believe that either my assistant or I made a note in my electronic diary to enquire about the date that the new certificates of title would issue for Unit 2 on 11 March 2008. Based on my usual practice and the handwritten note '12/03 Meagan was away sick today and will call back tomorrow' appearing on the print out of the electronic diary, I believe that Ms Lovell contacted Acton again on 12 March 2009 regarding the date that separate titles would issue for Unit 2. Based on my usual practice and the handwritten note '17/03 Not until end of yr' appearing on the print out of the electronic diary, I believe that Ms Lovell contacted Acton again on 17 March 2008 to enquire as to when settlement would take place in the sale of Unit 2, and that a representative of Acton told her that the titles would not issue until the end of the year. After Ms Lovell contacted Acton, she or someone on her instruction updated the electronic diary so that the new review date was '3/11/2008.' " 43 Again, given its importance, a copy of the telephone note is annexed at the end of these reasons. 44 Ms Laretive, in her affidavit sworn 31 March 2009, deposes that she has read Mr Hicks' affidavit and notes that he says that on 17 March 2008 a representative from his office telephoned a representative from Acton as outlined in those paragraphs. Ms Laretive states that she has no specific recollection of such a telephone conversation. She does say that at that stage she was employed by Coakley & Martin. She believes that the (Page 15)
person referred to in the telephone note is "Megan, the sales administration representative at Acton". She goes on to say that: "I consider it likely that if a representative from Ronson MacKinlay called me about progress towards settlement I would have told him that Mr Stonehouse was aiming for an October/December 2008 completion." 45 Ms Laretive's comments are thus broadly consistent with those of Mr Hicks. However, as I have already noted, for the purposes of this summary judgment application, I will assume that Mr Hicks' evidence will be accepted at trial. 46 For the purposes of the narrative, on or about 9 June 2008, Ms Laretive sent the plaintiff Progress Report #4. This progress report does not make any reference to the estimated completion date for the Property.
Sixth communication – email to Ms Laretive 47 On 15 August 2008, Mr Stonehouse sent an email to Ms Laretive. The relevant portion for present purposes is as follows: "Subdivision certification with Landgate is complete and only awaits the final form 7 from the City of Subiaco (which is provided when the buildings are finished) … On the current schedule completion is projected for November." 48 In a responsive email of 21 August 2008, Ms Laretive stated she was getting information so as to prepare an update for purchasers. That update appears to be Progress Report #5, dated 22 August 2008. Ms Laretive deposes that this report was sent, but not when. Progress Report #5 contains the following sentence: "Subdivision certification with Landgate is complete and awaits final Form 7 from City of Subiaco which is proved [sic] when the buildings are finished." 49 Significantly, Ms Laretive does not repeat the comment from Mr Stonehouse's email that the completion was projected for November. There is nothing in the material before me to the effect that Mr Stonehouse's comment - that as at August 2008 completion was projected for November 2008 - was passed on to either the plaintiff or Ronson MacKinlay. (Page 16)
Summary of the effect of the communications 50 The defendants' case is that the six communications set out above constitute a representation which in turn constituted sufficient notice, directed to Ronson MacKinlay, stating the reasons for the delay in registration and the length of the delay. They further stated that the file note made by Ronson MacKinlay, marked MH-3, constitutes sufficient notice in writing.
51 By letter dated 9 October 2008, the defendants' solicitors, Lavan Legal, wrote to the plaintiff's solicitor in response to their termination letter dated 2 October 2008. The final two paragraphs of that letter purport to be an extension of the Registration Date for the purposes of cl 5.4. Those paragraphs are in the following terms: 52 As I have previously noted, the titles were in fact issued on 8 December 2008.
Validity of the extension – construction of SC clause 5.5 53 The defendants submit that it is sufficient if they substantially comply with SC cl 5.5. As discussed by Campbell J in Buildev Development v PIC Sales Pty Ltd [2003] NSWSC 1245, at [11]-[13], the doctrine of substantial performance has several roles of play in the law of contract. "One of the roles which the doctrine of substantial performance plays is that it operates in the construction of certain contractual clauses which impose obligations on parties, so that the clause is not regarded as being broken by occasional small deficiencies": Buildev (supra), at [11]. However, in this case, SC cl 5.5 confers a power, not an obligation, so this (Page 17)
application of the doctrine of substantial performance does not apply: Buildev, at [13]. 54 In Buildev the relevant power enabled the grantor of an option to acquire land to extend the time within which the option could be exercised. Campbell J held that the principles generally relating to the construction of an option applied to the extension. Those principles require the conditions for the exercise of an option to be precisely fulfilled: Buildev, at [14]: United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 at 929, 945-946, 951, 961-962; Tonitto v Bassal (1992) 28 NSWLR 564at 574-575. This principle is apposite to the present case. The conditions of SC clause 5.5 need to be precisely fulfilled.
Validity of the extension – content of the notice in SC clause 5.5 55 SC cl 5.5 is set out at par [17] above. On its face, SC cl 5.5 requires "a written notice". The written notice must state both the length of the delay and the reason for it. The reason must be a reason set out in SC cl 5.4. 56 The defendants submit that the written notice may be constituted by more than one document. This interpretation seems unlikely given the use of the term "a written notice" as opposed to, say, "written notice". Notwithstanding this, in the context of a summary judgment application, it is appropriate that I give the defendants the benefit of the doubt and consider it arguable that the written notice can be constituted by more than one document. 57 I also consider it arguable that there can be a valid notice pursuant to SC cl 5.5 without the notice expressly referring to SC cl 5.5. 58 However, I do not consider it arguable that the notice may be partly in writing and partly oral. SC cl 5.5 only refers to a "written notice". 59 The defendants must thus point to a series of documents containing the information required by SC cl 5.5, being one or more of the reasons set out in SC cl 5.4 and the length of the delay. However, at the very least, each piece of written communication would need to be sufficient in it own right to amount to a notice under the Contract. The trial Judge would then aggregate the information received by the plaintiff and determine whether the requisite notice has been given for the purposes of SC cl 5.5. (Page 18)
60 For completeness case, even if I were to be of the view that the doctrine of substantial performance did apply to the present case, I do not find it arguable that a notice which was not in writing, or which did not refer on its face to the length of the delay and a reason in SC cl 5.4, would substantially comply with SC cl 5.5: see generally, Arcos Ltd v EA Ronaasen & Son[1933] AC 470, at 479.
Validity of the extension - construction of GC clause 21 61 GC clause 21 is to be construed strictly, even if this may lead to an absurd result. In Capper v Thorpe [1996] ANZ ConvR 539; BC 9601397, Owen J made the following comments in relation to this clause (BC 9601397 at 21-22): "Commercial transactions should be conducted under a regime that permits of as much certainty as the law can engender. There are, of course, other policy areas that impact on a problem such as this. For example, where service of documents is concerned, the object is to ensure that the document is actually brought to the notice of the addressee: see, for example, Holwell Securities Ltd v Hughes [1974] 1 All ER 161. However, where post is the mechanism adopted by the sender, proof that the document has actually come to the notice of the addressee can be difficult. It is for these reasons that various statutes and forms of contractual conditions of general application have been devised which prescribe particular rules relating to service by post. It is for this reason that the provisions concentrate on delivery rather than receipt. As certainty is so important, it is not surprising that it should be regarded as prevailing over other policy considerations." 62 The decision of Owen J on this point was followed by Simmonds J in Mitchell v Schofield[2007] WASC 303, at [250]-[260]. 63 These decisions mean that the doctrine of substantial performance does not apply to a notice provision. Notice provisions are in effect construed in the same way as specific conditions of weight, measurement and the like which must be precisely complied with: Arcos Ltd v E A Ronaasen & Son(supra) at 479; Highmist Pty Ltd v Tricare Ltd [2005] QCA 357. For example, in Highmist Pty Ltd v Tricare Ltd (supra) a seemingly minute divergence from the agreed standard of performance was held to be sufficient to constitute a breach of the contract. That case concerned a contract for the purchase of land which was to be approved for subdivision prior to settlement. Relevantly for present purposes, the (Page 19)
contract was based on the standard form terms approved by the Real Estate Institute of Queensland and the Queensland Law Society for the conveyance of residential land. 64 The contract was subject to the relevant local council approving a sub-division of a plan "substantially in the form attached" to the contract. The relevant clause, cl 47, went on to provide (in cl 47.4) that a plan of subdivision "shall be taken in be substantially in the form attached notwithstanding that the boundaries differ, provided that… the area of the Land to be purchased does not reduce by more than 3%". The evidence established that the approved plan was 3.015 per cent smaller than the area of land shown on the plan attached to the contract. The Court held that the term was none the less breached. 65 Keane JA commented ([41]): "It is, therefore, not to the point to consider whether or not the respondent would have received 'substantially what it had contracted to purchase'. The clear terms of the contract required the appellant to register a plan of subdivision in conformity with the explicit requirements of special condition 47.4. This was not done. To excuse this failure because the amount by which the specifications of the registered plan deviated from those stipulated in the contract was 'small' would be to deprive the terms agreed upon by the parties and contained in that special condition of any real meaning. The common law does not operate in this way. " Likewise, in the present case, less than strict compliance with GC cl 21 would deprive that clause of any real meaning.
Validity of the extension - who may give and accept notices 66 The next point to address in dealing with the validity of the purported extension is whether Ronson MacKinlay could give notice on behalf of the defendants and accept service of notices on behalf of the plaintiff. 67 GC cl 21.1 provides that a notice under the Contract must be in writing, in English and signed by the party giving it or that Party's Representative. By GC cl 26, "Representative" means "a person who is either a Legal Practitioner or a Settlement Agent and who has been properly appointed to act for a Party in relation to Settlement". It was not contested by the plaintiff before me that Ronson MacKinlay is a Settlement Agent, and that it was validly appointed to act on behalf of the (Page 20)
defendants. It is thus a "Representative" for the purposes of the General Conditions and the Contract. It could give notices on behalf of the defendants. 68 Neither was it contested by the plaintiff that Ronson MacKinlay was validly appointed by the plaintiff as his settlement agent. It could receive notices on his behalf. 69 Significantly for present purposes, the definition of "Representative" does not include the "Seller Agent", defined in GC cl 26 to mean "a Real Estate Agent appointed to act on behalf of the Seller in respect to the sale of the Property". Thus neither Acton nor Ms Lavetive could give notice on behalf of the defendants for the purposes of the Contract. 70 By GC cl 21.1, any notice given on behalf of the defendants had to be in writing and signed by either them or their Representative, Ronson MacKinlay (and from October 2008, their lawyer). This position is consistent with the application of GC s 21 by Simmonds J inMitchell (supra), at [250]-[260]. 71 Again, for completeness sake, even if I were to be of the view that the doctrine of substantial performance did apply to construction of GC cl 21, I do not find it arguable that there could be substantial performance of GC cl 21 notwithstanding a failure of a notice to be in writing and to be signed by the relevant party or their Representative as defined. 72 Summarising the analysis for far, the defendants need to point to: (a) a series of documents said to contain the information in cl 5.5: (b) signed by the defendants or their Representative, Ronson MacKinlay; (c) sent by the defendants or their Representative, Ronson MacKinlay; and (d) received by the plaintiff or his Representative, Ronson MacKinlay.
Validity of the extension – analysis of the six items of communication 73 As to the first of the six items of communication said to constitute the notice – the communication about the alarm system – only the letter dated 30 November was in writing and was signed. However, it does not contain any reference to the date by which registration would occur. Nor does it refer to reasons for delay. Accordingly, no part of the first (Page 21)
communication is of use in establishing that a notice pursuant to SC cl 5.5 had been given. 74 As to the second communication - the email to Mr Gollege, copied to Ms Laretive - the defendant should have the benefit of the doubt that this is in writing. However, it does not purport to be signed. Further, there is no material before me to the effect that this communication was passed through to either the plaintiff or Ronson MacKinlay. No part of this communication can thus be used. 75 As to the third communication – the December 2007 Progress Report – this is from Ms Laretive. It is thus not a communication from the "Representative" of the defendants for the purposes of GC cl 21 and thus the Contract. This communication cannot be used to form part of the notice. 76 As to the fourth communication – email to Mr Hicks – again, it is appropriate to give the defendant’s the benefit of the doubt that it was in writing. However, it was not signed by one or other of the defendants. It cannot thus be used to form a notice from the defendants to Mr Hicks in his capacity as the Plaintiff's Representative. 77 Leaving the fifth communication to one side for the moment, the sixth communication is the email from Mr Stonehouse to Ms Laretive, followed by the 5th Progress Report. The 5th Progress Report is from Ms Laretive, and not a Representative of the defendants for the purposes of the Contract. It cannot be used to form part of the notice required by SC cl 5.5. 78 As to whether sufficient notice was given, the position needs to be analysed at three levels. The first level is the information directly received by the plaintiff, in writing, as part of a signed document, from either the defendants or their Representative as defined (Ronson MacKinlay). This is limited to the letter from the first defendant dated 30 November 2007 (dealing with the alarms). This does not contain any of the information required by SC cl 5.5. 79 The second level of analysis is the information received by Ronson MacKinlay as Representative of the plaintiff, again, in writing in a signed document. There is no communication falling within this category in the materials before me. (Page 22)
Validity of the extension – position of Ronson MacKinlay 80 The third level of analysis is the information received by Ronson MacKinlay as Representative of the defendants, which they were to pass on to the plaintiff. The defendants placed considerable weight on the fact that requisite information for the purposes of SC cl 5.5 had been received by Ronson MacKinlay and then committed to writing by Ronson MacKinlay, satisfying the requirements of GC 21. 81 Only two relevant pieces of information were received by Ronson MacKinlay: 82 There is no information in the material before me that Ronson MacKinlay knew the reason for the delay (strictly, there is nothing in the materials before me that Ronson MacKinlay even knew that there was a delay from the registration date set out in the Contract). Therefore, even if it is possible for the formal requirements of SC cl 5.5 and GC cl 21 to be complied with by Ronson MacKinlay making some form of file note, there was insufficient information from which to do so for the purposes SC cl 5.5, being the absence of a reason set out in clause SC 5.4. 83 There are further defects. The limit of what Ronson MacKinlay put in writing was the file note marked "MH-3". This is to the effect "17/03 not until end-of-year". There is no reference to what was to occur at the end of the year, merely the after the event explanation provided by Mr Hicks. Even more significantly, there is no written reference to one of the reasons set out in SC cl 5.5. Further, the document is not signed on behalf of Ronson MacKinlay. The file note is not sufficient to constitute notice for the purposes of SC cl 5.5. 84 The defendants also argue that given that Robson MacKinlay represented both parties, the requirement in GC cl 21 that notice be served by "delivery, post or facsimile" became irrelevant. They further argued that, from a practical standpoint, it makes no sense for the same representative to sign a notice and give that notice to itself. (Page 23)
85 I disagree. I cannot find an arguable interpretation of GC cl 21 which obviates the need for a written notice to be signed where the parties have a common Representative. Where there is a common Representative, a notice can be delivered by its production and placement on the file, although actual service on the party on whose behalf the notice was "received" would seem highly desirable. Common sense, prudence and the need for clear audit trails would suggest that it is even more imperative that there be a signed written notice where the Representative acts for both parties to a transaction. I have not been provided with any authorities to the contrary, so cannot even regard this point as amenable to development of the law.
Validity of the extension – waiver of strict compliance 86 The defendants raise the argument that substantial compliance with a contractual term by one party may be sufficient compliance where there has been a waiver of strict compliance by the other party. The relevant clause said to have been substantially complied with is SC cl 5.5, though the argument could equally apply to the notice provisions in GC cl 21. In support of this proposition they cite the decisions in Stirling v Maitland & Boyd(1864) 5 B & S 841; 122 ER 1043, Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 and Wendt v Bruce (1931) 45 CLR 245. I am unable to discern how the decision in Stirling (supra) is of any assistance to the issues before me for determination. 87 In the two High Court decisions, the conduct said to constitute a waiver of the requirement of strict compliance occurred after the time for compliance had passed. The cases are concerned with the waiver of the right to terminate by conduct occurring after the breach said to give rise to the right to terminate, which conduct amounted to an election to waive the breach and affirm the contract. In the present case, there is no relevant conduct by the plaintiff alleged to have occurred after the date on which the Contract is said to have come to an end (being the initial Registration Date of 30 September 2009). 88 The concept of waiver of the right to insist on strict performance is more appropriately considered in the context of estoppel. In Cheshire and Fifoot’s Law of Contract, N C Seddon and M P Ellinghaus, the authors' comment (p 90, footnotes omitted): "It is commonly assumed that if a party does not assert its rights when a breach of contract has occurred, it has waived the right to performance (to be distinguished from waiving the right to terminate)… As with any promise, there are only three ways in (Page 24)
which it can be legally enforceable: by contract, deed or estoppel. Therefore it is incorrect to assert that, by itself, non-enforcement of a contractual right, or even a positive promise not to enforce a right, amounts to a waiver in the sense of being precluded from enforcing that right."
Validity of the extension – conclusion 89 I am thus of the view that the defendants have raised no issue or question in dispute which ought to be tried in relation to the argument that the Contract was validly extended in compliance with SC cl 5.5. In summary terms: (a) the only communications able to be considered are those in writing and signed by the defendants or their Representative, Ronson MacKinlay; (b) the only document signed by one of the defendants and sent to the plaintiff does not refer to an extension of the Registration Date in the contract; (c) there is no relevant document signed by Ronson MacKinlay; (d) the only unsigned document does not contain sufficient information to comply with SC cl 5.5, even on the scenario that Ronson MacKinlay received information not falling within par (a) in its capacity as Representative of the defendants.
Estoppel – Relevant law 90 A consideration of the law in relation to promissory estoppel traditionally begins with the summary of the law set out by Brennan J (as His Honour then was) in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, at 428-429: "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that (Page 25)
detriment whether by fulfilling the assumption or expectation or otherwise." 91 In the present context, the references to the plaintiff and defendant need to be reversed. 92 The plaintiff submitted that, in addition to these requirements, the representation must be clear and unequivocal if it is to found an estoppel, citing Legione v Hateley (1983) 152 CLR 406, at 435-437. The key passage referred to is in the judgment of Mason J (as his Honour then was) and Deane J (at 436), where their Honours stated: "The requirement that a representation must be clear before it can found an estoppel is, in our view, applicable to any doctrine of promissory estoppel." 93 Their Honours endorsed to the remark of Lord Denning MR in the Court of Appeal decision in Woodhouse AC Israel Cocoa Limited SA v Nigerian Produce MarketingCo Ltd [1971] 2 QB 23 at 60, that "[t]o work an estoppel, the representation must be clear and unequivocal". 94 This requirement was the subject of detailed analysis by Ipp JA in Australian Crime Commission v Gray [2003] NSWCA 318, at [179]-[208]. His Honour did not view the requirement that the representation be clear and unequivocal to be an absolute rule. Rather, what is important is whether the representation is sufficient to give rise to unconscionability. Specifically, his Honour stated (at [193]-[200]): "…I do not think, with respect, that the statement made by Mason and Deane JJ in Legione v Hateley at 436 to 437 was intended to be an absolute rule. While, often, an ambiguous or imprecise representation will not give rise to a promissory estoppel, that could not inevitably be the case. In virtually every statement of existing fact or future intent some ambiguity or imprecision of language may be found. … ... As Flinn v Flinn [[1999] VSCA 109] demonstrates, there have been many instances where representors have not been able to escape responsibility merely because of ambiguity or lack of clarity in the representations they have made, even where it was difficult to resolve uncertainties inherent in them. (Page 26)
Waltons Stores (Interstate) Limited v Maher is itself an example of a promissory estoppel being upheld where the representation (implicit in the appellant's conduct) was difficult to construe with precision and was capable of more than one reasonable meaning. … The underlying reason for the rule that, generally speaking, an ambiguous or unclear representation will not give rise to a promissory estoppel is that the foundation of promissory estoppel is unconscionability. Unconscionability is usually difficult to establish when the representation is ambiguous or unclear." 95 In the context of present application, I should thus not consider it fatal to the defendants' argument that the representations relied on are not clear and unequivocal.
Estoppel – First communication – December 2007 96 The first way in which the defendants say there is an estoppel is based on the communication between the Mr Stonehouse and the plaintiff in December 2007 in connection with the alarm system, the first communication set out above. As discussed above, the summary judgment application should be determined on the basis of the facts deposed by Mr Stonehouse. The salient facts are: (a) in their December 2007 telephone conversation, Mr Stonehouse told the plaintiff that completion was expected in October but that the schedule was under pressure because it was difficult to get tradespeople; (b) the plaintiff told Mr Stonehouse that he was happy with the October completion dated but that further delay would be better because as an investor the longer the project took the better it was for him; and (c) in progress reports in September 2007, November 2007 and December 2007 the plaintiff was told that the estimated completion date was October 2008. 97 Mr Stonehouse further deposes reliance in the following terms in par 21 of his affidavit: "If at any time the plaintiff or Mr Hicks as his settlement agent had told me that any extension of time for settlement had to be set out in writing, I would have arranged for my solicitors or (Page 27)
Ms Laretive to review the Contract to see what was required in that regard, and to liaise with me in relation to preparing and sending such a notice." 98 The starting point is to consider what state of affairs it is necessary for the defendants to have assumed in order to successfully meet the plaintiff’s argument that the Contract came to an end once registration of the strata plan did not occur by the Registration Date. The defendants purported to serve on the plaintiff’s solicitor a further notice pursuant to SC cl 5.5 by letter dated 9 October 2008. This extended the Registration Date to 31 December 2008. It is arguable that this is a valid extension for the purposes of SC cl 5.5. That being so, it is only necessary for the defendants to show an arguable estoppel relating to the period 30 September 2008 to 9 October 2008. However, the estoppel must be to the effect that it is unconscionable for the plaintiff to insist that the defendants comply with the formal extension requirements. 99 Dealing in turn with the elements of estoppel set out in by Brennan J in Waltons Stores (supra), I consider it arguable that from the facts set out above, that Mr Stonehouse assumed that the plaintiff would have no objection to an October settlement. However, there was no discussion of the formal requirements of the Contract. Indeed, from the paragraph of Mr Stonehouse's affidavit quoted in par [97], Mr Stonehouse was not aware that the Contract provided that any extension be by written notice. There is no material before me from which it is arguable that Mr Stonehouse assumed that it was not necessary for him to comply with the formal extension requirements of the Contract. He simply did not know of these requirements. 100 Neither is there any material before me to effect that the plaintiff's statement was in any way "promissory". The plaintiff neither promised to do something nor not to do something. There was certainly no promise not to insist that the defendants comply with the formal extension provisions in the Contract. 101 Neither is it arguable that the plaintiff induced the defendants to adopt any assumption about the need to comply with the formal extension requirements of the Contract. There is no material before me to the effect that in December 2007 the plaintiff was actually aware of the formal extension requirements. For the same reason, it is also not arguable that the plaintiff knew or intended Mr Stonehouse to rely on any assumption or expectation about the need to comply with the formal extension requirements. (Page 28)
102 Again, it is not arguable that Mr Stonehouse acted or abstained from acting in reliance on any assumption about the need to comply with the formal extension requirements of the Contract; he simply was not aware of these requirements. 103 If these elements were established, then it would be arguable that there is detriment to the defendants if the assumption is not fulfilled. The detriment is that the Registration Date was not validly extended and the Contract terminated, with the consequence that the defendants lose the benefit of selling the Property at the price set out in the Contract. It is also arguable that the plaintiff has failed to act to avoid the detriment as he has commenced this action based on the defendant failing to extend the Registration Date. 104 Thus, in my view, there is no issue to be tried in relation to an estoppel arising out of the December 2007 communication between the plaintiff and Mr Stonehouse. Even assuming that there was some form of promise by the plaintiff, there is no material before me suggesting any unconscionable conduct. In the words of Mason CJ and Wilson J in Walton Stores (supra) p 406: "As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering detriment, does not bring promissory estoppel into play. Something more would be required." The "something more" is not present in the materials before me.
Estoppel – Ronson MacKinlay communications 105 The second way in which the defendants say that an estoppel arises is from the conduct of Ronson MacKinlay. The nature of the estoppel relied on is that the plaintiff’s agent, Ronson MacKinlay, represented that the extension was agreed to, thereby expressly waiving the need for notice of the extension to be in writing (defendant's submissions, par 27). It is further, or alternatively, submitted that the file note made by Ronson MacKinlay constituted sufficient written notice of the extension. 106 The details of the making of the file note by a staff member of Ronson MacKinlay are scant and second hand. However, and as I have already noted, it is appropriate that I assume that the information before me will be put in admissible form. At its best, on the materials before me, I will assume that the following evidence would be led at trial: (Page 29)
(a) on or about 17 March 2008 Ms Richelle Lovell, Mr Hick's assistant, telephoned Acton; (b) Ms Lovell spoke to someone at Action, possibly 'Megan', the Sales Administration Representative at Acton; (c) Ms Lovell asked the Acton representative when separate titles would issue for Unit 2; (d) the Acton representative advised that the titles would not issue to the end of the year, or perhaps that settlement would not occur until the end of the year; and (e) Ms Lovell then made the file note. (See the passages quoted above (par [42]) from the affidavit of Mr Hicks – and [12] to [13] of Ms Laretive's affidavit). 107 There is nothing in the material before me to the effect that there was any discussion between Ms Lovell and the Acton representative of the need to produce a written extension or to comply with SC cl 5.5 or generally about compliance being waived. 108 I note here that the material before me is unclear as to whether that as at August 2008 Acton was acting as the selling agent. Ms Laretive deposes that when she left Acton in February 2008 she continued to act as agent for the sale of the properties at Troy Terrace (par 4). This is reinforced by the fact that she sent out the June, August and November 2008 progress reports with her personal email address as the contact – the previous ones had her Acton email. This alone is fatal to the defendants' submission – there is no chain of agency from the defendants to Acton to Ms Lovell. However, I will proceed with the analysis as the position on this point is by no means clear. 109 It is unclear precisely who Ronson MacKinlay was acting for at this point. Putting the case at its strongest, I will treat Ronson MacKinlay as acting for both the plaintiff and the defendants at this point. 110 There is no material before me suggesting that the information which Ms Lovell received was ever communicated to either the plaintiff or the defendants, or even Mr Hicks, the settlement agent. Neither is there any material to the effect that either of the defendants turned their minds to the need to issue a notice pursuant to SC cl 5.5. 111 Thus, the mere possession of the information by Ms Lovell, along with the file note, needs to constitute most of the key elements of the estoppel on behalf of both the plaintiff and the defendants. I will assume (Page 30)
that it is arguable that the knowledge and conduct of Ms Lovell can be attributed to the plaintiffs and defendants respectively. That being so, Ms Lovell's knowledge and conduct must: (a) give rise in the mind of the defendants (constructively through the mind of Ms Lovell, their agent) an assumption that it was not necessary for the defendants to extend the Registration Date using the process in SC cl 5.5; (b) constitute an inducement by the plaintiff (again constructively) to defendants (again constructively) to adopt the assumption in par (a); (c) constitute the abstention from acting by not using the process in SC cl 5.5, in reliance on the assumption; (d) constitute the knowledge or intention by the plaintiff (constructively) that the defendants would rely on the assumption; 112 Merely articulating the argument in these terms demonstrates that it does not raise an issue to be tried. Further as to point (c), there is no material to the effect that the assumption in point (a) was ever communicated to the defendants personally. Accordingly, not actually knowing of the assumption, there was no way for them to act, or abstain from acting, in reliance on the assumption. Any abstention in reliance had to be done by Ms Lovell. However, neither is there any material to the effect that Ms Lovell knew of SC cl 5.5. It therefore cannot be arguable that she abstained from using this process in reliance on the assumption. 113 It is arguable that there is detriment to the defendants if the assumption in par (a) assumption is not fulfilled. The detriment is that the Registration Date was not validly extended and the Contract terminated, with the consequence that the defendants lose the benefit of selling the Property at the price set out in the Contract. Assuming the other elements are established, it would be arguable that the plaintiff has failed to act to avoid the detriment as he has commenced this action based on the defendant failing to extend the Registration Date. 114 Notwithstanding this, I am of the view that it is not arguable that an estoppel arises based on the conduct of Ms Lovell on or about 17 March 2008. The essence of estoppel is the conduct of A relied on by B being such that it is unconscionable for A to be allowed to resile from the assumption held by B which was relied on. I cannot see how unconscionability can arise if A and B are the same person. No authority (Page 31)
has been drawn to my attention by counsel where an estoppel has been held to arise in were A and B are the same person, nor has my research for the purposes of this judgment been able to find any. 115 To give the defendants the benefit of any doubt, it is necessary to consider if the position would have been any different if Ms Lovell is considered to only be the agent of the plaintiff and the Acton representative the agent of the defendants. I will assume that it is arguable that sufficient agency exists between Ms Lovell and the plaintiff and the Acton representative and the defendants for each to bind their respective principals for the purpose of an estoppel. 116 Again, I do not find it arguable that an estoppel arises. The material before be does not in any way suggest that the conduct of Ms Lovell was in any way "promissory". There is the mere receipt and recording of information. There is nothing in the materials suggesting that the need for an extension notice was discussed. There is no material before me to the effect that: (a) there was conduct by Ms Lovell which could arguably give rise to an assumption in the mind of the unnamed Acton representative that it was not necessary for the defendants to extend the Registration Date using the process in SC cl 5.5; (b) there was conduct by Ms Lovell which could arguably constitute an inducement by Ms Lovell to the unnamed Acton representative to adopt any assumption in relation the extension of the Registration Date; (c) the unnamed Acton representative acted in any way in reliance on any assumption; (d) Ms Lovell knew or intended the unnamed Acton representative to rely on any statement she made; (e) the unnamed Acton representative passed the substance of the telephone conversation with Ms Lovell on to either of the defendants, meaning that the defendants could not have relied on anything Ms Lovell said.
Estoppel – effect on Strata Titles Act 1985 (WA) s 70(4) 117 The plaintiff raised a further issue which it says means that estoppel is not arguable in this case. This is that the effect of the estoppel, if allowed, would be to frustrate the operation of Strata Titles Act 1985 (WA) ("STA") s 70(4). (Page 32)
118 There is a general principle that a party cannot rely on an estoppel to frustrate or negative the operation of a statute: Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd[2003] NSWCA 305, at [51]-[57]; 57; Tudor Developments Pty Ltd v Makeig [2007] NSWSC 1116; Considine v Citicorp Australia Ltd[1981] 1 NSWLR 657, at 661-662; Brown v Universal Guarantee Pty Ltd[1968] WAR 23, at 29; Kok Hoong v Leong Cheong Kweng Mine Ltd [1964] AC 993, at 1015. The application of "the general principle that a party cannot rely on an estoppel in the face of a statute depends upon the nature of the enactment, the purpose of the provision and the social policy behind it": Yaxley v Gotts [2000] Ch 162, at 191. See also:Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd(supra) at [54]; Tudor Developments Pty Ltd v Makeig (supra), at [34]; Shah v Shah[2002] QB 35, at 44 The defendants did not cite me any authority to the contrary, so this is not an issue on which I can give them the benefit of any doubt. 119 The case relied on by the plaintiff is Considine v Citicorp Australia(supra). In that case, the defendant, a finance company and the owner of a particular vehicle, had repossessed the vehicle from the plaintiff who had purchased it under a hire purchase agreement. The plaintiff sought a declaration that his liability under the hire purchase agreement should be reduced by the amount of the terms charges, that the vehicle was his property and that it should be returned to him. The basis of the claim was that the vehicle was wrongly described in the hire purchase agreement. The trial Judge, Wootten J, accepted that the wrong description meant that the agreement did not comply with the provisions of the Hire-Purchase Act 1960 (NSW)s 3. This in turn meant that s 3(4) of that Act applied, which provided that where the relevant provision of s 3 had not been complied with, the liability of the hirer is to be reduced by the amount of any terms charges. 120 The defendant sought to raise an estoppel on the basis that the plaintiff had known that the vehicle was wrongly described and had obtained legal advice as to the consequence of this, but had continued making repayments. Wootten J held that the effect of allowing the defendant to rely on the estoppel would be to negative s 3(4), and that estoppel cannot operate to frustrate a statutory provision in this way. 121 The decision of Wootten J was recently applied by Young CJ in Eq in Tudor Developments Pty Ltd v Makeig (supra). In that case, there was a contract for the sale of land. The plaintiff (vendor) has breached a condition of the contract requiring it to provide a certificate of insurance (Page 33)
to the defendant, which was required to be provided by Home Building Act 1989 (NSW) s 96A. The defendant (purchaser) purported to rescind the contract. The issue before Young CJ in Eq was a preliminary legal issue of whether estoppel could validly be pleaded against a defendant (purchaser) for the plaintiff's (vendor's) non-compliance with s 96A. His Honour found that estoppel could not be pleaded. Specifically, his Honour stated ([35]-[36]): 122 The plaintiff submits that to allow the defendants to raise an estoppel in the present case would frustrate or negative the operation of STA s 70(4). STA s 70 deals generally with contracts for the sale of a strata lot prior to the registration of the strata/survey-strata plan. STA s 70(4) provides: "(4) If the strata/survey-strata plan is not registered — the purchaser may avoid the sale at any time before the plan is registered." 123 STA s 70 is designed to protect purchasers. Indeed, Pt V of the STA in which it is contained is headed "Protection of purchasers" (the heading forming part of the written law: see Interpretation Act 1984 (WA) s32). It is a provision of the same kind considered in Tudor. In the present case, (Page 34)
the purchaser (plaintiff) and the vendors (defendants) agreed in writing a date within which registration was to occur. The effect of the estoppel sought to be argued by the defendants is to extend the time within which the registration was to occur without the need for there to be an agreement in writing. Its effect is thus to frustrate or negative the operation of STA s 70(4), both in its strict terms and underlying policy of protecting purchasers. The estoppel is thus impermissible. 124 For the sake of completeness, I should add that I do not consider it arguable that the file note of Ms Lovell constitutes an agreement in writing to further extend the registration date. There is no material before me suggesting that it is anything more than a file note of a conversation. Specifically, there is no material suggesting that the file note was to have any effect as a legally binding agreement between the plaintiff and the defendants. Even if it were, it is too uncertain so as to constitute an agreement in writing for the purposes of STA s 70(4). Even if it were sufficiently certain, the parties have agreed in the Contract as to how the registration date was to be extended. Any agreement to further extend the registration date for the purposes of STA s 70(4) would need to comply with the terms of the Contract, being the initial agreement in writing for the purposes of STA s 70(4)(a). As set out above, I do not find it arguable that the file note complies with the terms of SC cl 5.5.
Conclusion 125 For the reasons I have set out above, the material before me does not establish an issue or question to be tried as to whether conduct by, or on behalf of, the plaintiffs gives rise to an estoppel in relation to the way in which the Registration Date in the Contract was to be extended. Neither does the material raise an issue or question to be tried as to whether SC cl 5.5 was complied with. 126 It follows that the plaintiff is entitled to judgment. 127 I will hear from counsel on the precise form of the orders, including the basis of calculation of interest on the deposit.
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ANNEXURE
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