Moore v Stockland South Beach Pty Ltd [No 2] - [2012] WASC 468

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MOORE -v- STOCKLAND SOUTH BEACH PTY LTD [No 2] [2012] WASC 468

CORAM: CORBOY J

HEARD: 9 MAY, 25 & 26 OCTOBER 2012

DELIVERED : 4 DECEMBER 2012

FILE NO/S: CIV 2780 of 2009

BETWEEN: BRADLEY COLIN MOORE
REBECCA ANNE MOORE
First Plaintiffs
THE BUILDING DEVELOPMENT GROUP PTY LTD
Second Plaintiff
PHILLIP GORDON MARSH and KELLY ELIZABETH MARSH As trustees for the Anstey Trust, GORDON FRANK MARSH and JOAN IVY MARSH, and GOMAR PTY LTD As trustee for the Philgo Superannuation Fund
Third Plaintiffs
IAN MATHIESON
LINDSAY MATHIESON
Fourth Plaintiffs
CHRISTOPHER JAMES THOMAS
Fifth Plaintiff
AND
STOCKLAND SOUTH BEACH PTY LTD
Defendant

Catchwords:

Vendor and purchaser - Sale of lots to be created by proposed strata scheme - Notices given by purchasers purporting to avoid sales prior to registration of strata plan and plan of re-subdivision - Whether notices effective to avoid sales - Proper construction of s 70(4) of the Strata Titles Act 1985 (WA) - Whether parties had agreed a period for registration for the purpose of s 70(4)(a) - Whether agreement that separate indefeasible titles to be created by a specified date or a date to be nominated an agreement for the purpose of s 70(4)(a) - Whether agreement that made the sale and purchase of a proposed lot conditional on the creation of a separate indefeasible title an agreement for the purpose of s 70(4)(a)

Legislation:

Strata Titles Act 1985 (WA), s 70(4)

Result:

Declarations to be made that the sales contracts between the plaintiffs and the defendant have been avoided under s 70(4) of the Strata Titles Act 1985 (WA)

Category: B

Representation:

Counsel:

First Plaintiffs               :     Mr R G Bain QC & Mr D K Barker
Second Plaintiff            :     Mr R G Bain QC & Mr D K Barker
Third Plaintiffs             :     Mr R G Bain QC & Mr D K Barker
Fourth Plaintiffs            :     Mr R G Bain QC & Mr D K Barker
Fifth Plaintiff                :     Mr R G Bain QC & Mr D K Barker
Defendant:     Mr B Dharmananda SC

Solicitors:

First Plaintiffs               :     Chalmers Legal Studio Pty Ltd
Second Plaintiff            :     Chalmers Legal Studio Pty Ltd
Third Plaintiffs             :     Chalmers Legal Studio Pty Ltd
Fourth Plaintiffs            :     Chalmers Legal Studio Pty Ltd
Fifth Plaintiff                :     Chalmers Legal Studio Pty Ltd
Defendant:     Norton Rose Australia

Case(s) referred to in judgment(s):

Breskvar v Wall (1971) 126 CLR 376
Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189
Mirvac (WA) Pty Ltd v Yeo [2011] WASC 162
Moore v Stockland South Beach Pty Ltd [2011] WASC 337
Peldan v Anderson [2006] HCA 48; 227 CLR 471
Solid Investments Australia Pty Ltd v Clifford and Bayley [2010] VSCA 59; 27 VR 41
Sunworld Enterprises Pty Ltd v Lacco [2009] WASCA 175

CORBOY J:

The preliminary issues and the result

Each of the plaintiffs and the defendant entered into 'off the plan' contracts for the sale and purchase of lots to be created on registration of a strata plan and a plan of re‑subdivision for an apartment complex that was to be constructed on land owned by the defendant at Coogee (the Sale Contracts). The plaintiffs alleged that the Sale Contracts were void for uncertainty, alternatively that they had been terminated under s 69D and/or s 70(4) of the Strata Titles Act 1985 (WA) (the Act) or that they had been rescinded. They sought declarations to that effect. They also sought, in the alternative, an order that the sale of the proposed lots be avoided under s 87 of the Trade Practices Act 1974 (Cth).
The defendant denied that the Sale Contracts were void or at an end or were liable to be declared void or rescinded. It counterclaimed for specific performance or damages in lieu. The detail of the claims and counterclaims made by the parties was further explained in Moore v Stockland South Beach Pty Ltd [2011] WASC 337.
The plaintiffs applied for certain issues to be determined as separate preliminary issues. The application succeeded in part: Moore v Stockland. The parties formulated the preliminary issues to be determined as follows:
Preliminary Issue One
On what date was the strata plan/survey-strata plan 52597 registered for the purposes of section 70(4) of the Strata Titles Act 1985 ("the Act") for:
1.Building A (relating to the fourth plaintiffs); and
2.Building B (relating to the first, second, third and fifth plaintiffs).
Preliminary Issue Two
For the purpose of section 70(4) of the Act, have the fourth plaintiffs, by entering into the Fourth Plaintiffs' Contract, agreed in writing with the defendant the period within which the strata survey plan 52597 is to be registered. If so, did that period expire on 1 May 2009 or 1 May 2010.
Preliminary Issue Three
For the purpose of section 70(4) of the Act, have the first, second, third and fifth plaintiffs, by entering into the First Plaintiffs' Contract, the Second Plaintiff's Contract, the Third Plaintiff's Contract and the Fifth Plaintiff's Contract respectively, agreed in writing with the defendant the period within which the strata survey plan 52597 is to be registered. If so, did that period expire on 31 July 2009 or 30 July 2010.
Preliminary Issue Four
For the purpose of section 70(4) of the Act, did the fourth plaintiff by the Fourth Plaintiffs' Avoidance Notice avoid the sale by the defendant of lot 15 on strata plan 52597 to the fourth plaintiff.
Preliminary Issue Five
For the purpose of section 70(4) of the Act, did the first, second, third and fifth plaintiffs by the First Plaintiffs' Avoidance Notice, Second Plaintiff's Avoidance Notice, Third Plaintiffs' Avoidance Notice and Fifth Plaintiff's Avoidance Notice avoid the sales by the defendant of lots 41, 40, 48 and 44 on strata plan 52597, respectively, to the first, second, third and fifth plaintiffs.
The parties also agreed a statement of relevant facts. The statement is annexed to the reasons.
The effect of my determination of the preliminary issues is that each of the plaintiffs have avoided the sale of the proposed lots by notices of avoidance that they issued under s 70(4) of the Act prior to registration of the strata plan and plan of re-subdivision creating the lots.

The Sale Contracts

The Sale Contracts made between the first, second, third and fifth plaintiffs (referred to together as the first and other plaintiffs) were identical (exhibit 1/1). The Sale Contract made between the fourth plaintiffs and the defendant was substantially identical with the contracts made by the first and other plaintiffs (exhibit 1/2). However, the contracts stipulated different dates for the 'Registration Date' ‑ that is, the date by which 'Registration', as defined in the Sale Contracts, was to occur. The Sale Contracts made by the first and other plaintiffs specified that the Registration Date was 31 July 2009; the Registration Date stipulated by the contract made by the fourth plaintiffs was 1 May 2009 (condition 38.1 in each contract). The difference in dates apparently reflected the fact that the apartment that was to be purchased by the fourth plaintiffs was located in what was referred to as Building A, while the apartments that were to be purchased by the first and other plaintiffs were situated in Building B.
Further, the proposed strata plan annexed to the fourth plaintiffs' contract (the Strata Plan) comprised 26 proposed lots, the 26th lot being an undivided area of land. The proposed plan annexed to the first and other plaintiffs' contracts (the Plan of Re-subdivision) described 53 lots, the additional lots being created out of the previously undivided portion of the land referred to as lot 26 in the Strata Plan.
Each Sale Contract adopted an identical structure. The contracts comprised:
(a)a 'reference schedule' containing certain particulars of the contract and the parties;
(b)standard form sale conditions that were identical for each contract ‑ the preliminary issues concern the meaning and effect of certain provisions in those conditions;
(c)the Joint Form of General Conditions for the Sale of Land (2002 revision), jointly published by the Law Society of Western Australia and the Real Estate Institute of Western Australia (annexure 1 to the contracts);
(d)the Strata Plan or Plan of Re-subdivision (annexure 2 to the contracts); and
(e)various other annexures (including documents that the defendant as vendor was obliged by the Act to disclose to the plaintiffs as purchasers).
The relevant terms of the standard form conditions were as follows:
(a)Conditions 8.1 to 8.23 stipulated the time by which various approvals for the Strata Plan and Plan of Re-subdivision were to be obtained and 'Registration' was to be effected. The sale and purchase of the proposed lots was made conditional on those approvals and registrations.
(b)Condition 8.4 provided that, 'the sale and purchase of the Property is conditional on Registration being effected by the Registration Date (or if applicable, any extended Registration Date under Sale Condition 8.18)' (the 'Property' being the proposed lot the subject of the sale contract). The term 'Registration' was defined by condition 38.1 in the first and other plaintiffs' sale contracts to mean 'the creation of a separate indefeasible title for the Property'. The term was defined in the fourth plaintiffs' contract as 'registration of the Plan as a strata plan at Landgate and the creation of a separate indefeasible title for the Property'.
(c)Condition 8.5 provided that either party could terminate the contract by giving notice to the other party at any time after the Registration Date if the condition contained in condition 8.4 had not been satisfied.
(d)Condition 8.6 provided that the defendant could terminate the contract any time before 'the Registration Date (as extended)' if it formed the opinion that Registration would not be effected by 'the Registration Date (or, if applicable, any extended Registration Date under Sale Condition 8.18)'.
(e)Condition 8.18 provided that, subject to condition 8.21, the defendant 'may (but is not obliged to) extend either or both the Registration Date and the Settlement Date, on one or more occasion, if there are delays in effecting the Development for any of the following reasons'. There followed seven reasons, including 'anything else beyond the Seller's control'. The term 'Settlement Date' was defined to mean the date specified in condition 7.3 (condition 38.1). Condition 7 provided for settlement after Registration had been effected.
(f)Condition 8.19 required the defendant to issue a notice if it proposed to rely on condition 8.18 stating the reason for the relevant delay, 'which will be conclusive evidence', and the extended Settlement Date and/or Registration Date.
(g)Condition 8.20 provided that the plaintiff purchasers were not entitled to make any 'Objection' in relation to the defendant exercising its right under condition 8.18. The term 'Objection' was defined to mean 'any objection, requisition, claim for compensation, withholding of all or part of the Purchase Price, refusal to complete Settlement or delay in completing Settlement' (condition 38.1).
(h)Condition 8.21 stipulated that the defendant could not extend the Registration Date beyond the 'Last Date'. The condition also provided that the defendant could not extend the Settlement Date beyond 10 business days after the Last Date. The Last Date for the first and other plaintiffs' sale contracts was 31 July 2010. The Last Date for the fourth plaintiffs' sale contract was 1 May 2010 (condition 38.1 in each contract).
(i)Clause 8.23 provided that the plaintiff purchasers and the defendant agreed that the provisions of condition 8 were a valid agreement in relation to Registration for the purpose of s 70(4) of the Act.

The Act

Division 1, pt II of the Act concerns the creation of lots by a strata plan or a survey-strata plan. Section 4(1) provides that land may be subdivided into lots, or lots and common property, by the registration of a strata plan or a survey‑strata plan. Section 4(2) provides that where a strata/survey‑strata plan is registered under the Act, the lots comprised in the plan, or any one or more of them, may be devolved or may be transferred, leased, mortgaged or otherwise dealt with in the same manner and form as land held under the provisions of the Transfer of Land Act 1893 (WA) (TLA). Further, on registration:
(a)the plan is 'embodied' into the Register and a 'proprietor' shall hold a lot subject to any interests for the time being noted on the registered strata/survey‑strata plan (s 4(3));
(b)a memorial shall be entered on the certificate of title relating to the parcel of land 'where a strata/survey‑strata plan is registered' and 'thereupon' the Registrar of Titles may create and register a separate certificate of title for each lot (s 4(4));
(c)subject to s 4 of the Act, any dealing affecting a lot has the same effect in relation to the lot as a similar dealing affecting a lot on a plan of subdivision lodged pursuant to s 166 TLA has in relation to such a lot (s 4(6)).
Section 8(1) of the Act provides that lots or common property, or lots and common property, may be re‑subdivided by the registration of a plan under and in a manner provided by the Act as a plan of re‑subdivision. Section 8A sets out requirements for a plan of re‑subdivision. Section 8B(1) provides that, subject to s 8B(2), every transfer or other document that is necessary to give effect to the plan of re‑subdivision shall be lodged for registration together with the plan. Section 8B(2) allows for regulations enabling the registration of an instrument (a 'disposition statement') by which various interests in land affected by the proposed re‑subdivision are disposed of or vested. By s 8C, a plan of re‑subdivision shall be deemed to be part of the strata/survey‑strata plan, as previously registered, on registration of the re‑subdivision plan. The Registrar of Titles is obliged to amend the strata/survey‑strata plan and the schedule of unit entitlements in the manner prescribed on registration of the plan of re‑subdivision.
Part V of the Act is entitled 'Protection of Purchasers'. The legislative history of the part, and in particular of s 70(4), was traced by Buss JA in Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189 at [11] and following.
Sections 69 to 70A of pt V provide that:
(a)a purchaser is to be supplied with 'notifiable information', as provided for by s 69A and s 69B, before a contract to buy a lot or proposed lot is made (s 69);
(b)the vendor under a contract to sell a lot or proposed lot is required by notice in writing to give the purchaser full particulars of any 'notifiable variation' (s 69C);
(c)a purchaser may avoid a contract where the vendor has failed to comply with the requirements of s 69 or s 69C (s 69D) and the vendor is liable to repay the purchaser all moneys paid by the purchaser (s 69E);
(d)a contract or arrangement is of no effect to the extent that it purports to exclude or restrict the operation of the Part (s 70A).
Section 70 contains provisions relating to the holding of deposits and other contract moneys were a lot has been presold. Section 70(4) provides that:
If the strata/survey‑strata plan is not registered ‑
(a)within such period after the date of the contract as is agreed in writing by the purchaser and the vendor; or
(b)in the absence of any such agreement, within 6 months after that date,
the purchaser may avoid the sale at any time before the plan is registered.
The purchaser may recover any money paid under the contract where a purchaser avoids a sale under s 70(4) (s 70(5)).
Section 70(8) defines the expression 'date of the contract' for the purpose of s 70 to mean 'the day on which the contract or sale referred to in subsection (1) was signed, or, if the parties signed it on different days, the last of those days'.

Notifications under condition 8.18 and the plaintiffs' notices of avoidance

The agreed statement of facts stated that the defendant gave notices to the plaintiffs under condition 8.18 and the plaintiffs gave notices to the defendant that were expressed to have been issued under s 70(4) of the Act. The dates on which those various notices were given was also agreed:
(a)The defendant sent notices to the first and other plaintiffs on 14 July 2009 stating that the Registration Date for their sales contracts had been extended to 30 July 2010. A notice was given to the fourth plaintiffs on 4 May 2009 stating that the Registration Date for their contract was extended to 1 May 2010.
(b)The first to fourth plaintiffs gave notices of avoidance on various dates between 11 August 2009 and November 2009. The fifth plaintiff gave a notice of avoidance on 19 March 2010.

Harman Nominees

Harman Nominees was an appeal from the decision of Kenneth Martin J in Mirvac (WA) Pty Ltd v Yeo [2011] WASC 162. The Court of Appeal's decision was delivered after the hearing in this matter but while the decision was reserved. Accordingly, the parties were given an opportunity to provide supplementary submissions on the effect of the Court of Appeal's decision.
Buss JA (with whom Newnes JA agreed) held in Harman Nominees that:
(a)The purchaser and vendor may agree a period within which the strata/survey‑strata plan is to be registered for the purpose of s 70(4)(a) after the date of the contract and before the purchaser has avoided the contract of sale and purchase. Consequently, the agreement need not be contained in the 'off the plan' contract [45].
(b)The parties may make several successive written agreements for the purpose of s 70(4)(a) [46].
(c)The word 'period' when used in s 70(4)(a) means 'a portion or interval of time which is fixed and ascertainable when the parties agree in writing upon the period'. The section 'therefore contemplates a single and ascertainable date (and not two or more possible dates) on which the purchaser will be entitled to avoid the sale if the strata/survey‑strata plan has not been registered' [58] (emphasis added).
(d)The word 'period' did not encompass both an interval that had fixed (that is, specified) commencement and end dates and an interval that was defined by the occurrence of one or more specified events (for example, the determination by the vendor of an end date) [53], [64] and following. It was necessary for the end date to be certain ‑ that promoted transparency and avoided the risk of a vendor endeavouring to secure an agreement to a period defined by reference to a future event that may not occur within a reasonable time as a result of contingencies about which the vendor was likely to be better informed than the purchaser [68].
(e)The object of s 70(4) was to:
(i)enable the parties to agree in writing on a period after the date of the contract within which the strata/survey‑plan must be registered if the parties contemplate that registration may not occur within six months after that date;
(ii)protect the purchaser's interest by enabling it to avoid the sale if the strata/survey‑plan was not registered within an agreed time and to enable it to recover all moneys paid under the contract on avoiding the sale [61].
Murphy JA held that the word 'period' was to be construed as follows:
In its ordinary meaning, the word 'period', when used in connection with a specified commencement date, and when applied to a timeframe 'within which' something is to be done, would signify some specified division or portion of time. In such a context, it ordinarily connotes a measurable and finite interval of time. There is, in the text of s 70, read in the context of the Act as a whole, no basis upon which to depart from the ordinary meaning of the word 'period' in this regard. [136]

Preliminary issue 1

The plaintiffs contended that the answer to preliminary issue 1 (concerning the dates on which the Strata Plan and the Plan of Re‑subdivision were registered) was 12 February 2010 (Building A; fourth plaintiffs) and 7 May 2010 (Building B; first and other plaintiffs) (plaintiffs' submissions, par 29). The defendant accepted the plaintiffs' answer (defendant's submissions, par 6).
The effect of the answer was that the plaintiffs gave notices purporting to avoid their contracts under s 70(4) of the Act prior to the dates on which the Strata Plan and the Plan of Re‑subdivision were registered.

Preliminary issues 2 and 3

The plaintiffs' 'primary' contentions at the hearing and the defendant's response

The plaintiffs contended at the hearing (that is, prior to the decision in Harman Nominees being delivered) that:
(a)The word 'period', when construed according to the objectives of pt V of the Act, connoted a time that could be determined with certainty when a contract for the sale and purchase of a proposed lot was made.
(b)Condition 8 in the Sales Contracts did not contain an agreement for the purpose of s 70(4) of the Act ‑ it merely prescribed a process.
(c)Condition 8.21 did not constitute an agreement or provide a mechanism by which an agreement might be made for the purpose of s 70(4). It was merely a 'sunset clause'.
(d)An agreement within the meaning and for the purpose of s 70(4) required 'mutuality and balance'. Consequently, a unilateral determination and notification by the defendant that the Registration Date would be extended to a new date was not an agreement made by the plaintiffs and the defendant. To the extent that the section permitted multiple agreements about the period within which a strata plan was to be registered, each agreement had to be separately negotiated for by the vendor and agreed by the purchaser. Consequently, it was not enough for the purpose of s 70(4)(a) that the plaintiffs had agreed in the Sales Contracts to confer on the defendant a unilateral right to fix a new period. The reference in s 70(4) to an agreed period was to a period that had been specifically 'bargained for' by the parties.
The defendant contended that:
(a)Sections 70(1) and (2) of the Act required any deposit or other money payable by the purchaser prior to registration of a strata/survey‑strata plan to be held on trust pending registration. Section 70(4) was concerned with ensuring that money paid by a purchaser was not held for an indefinite or indeterminate period.
(b)Section 70(4)(a) did not require the parties to agree a 'specified' date. It was sufficient that they had agreed a means by which they could determine, with certainty, when the purchaser could exercise the right conferred by s 70(4).
(c)The Sales Contracts were not 'open‑ended' on the date by which the Strata Plan and the Plan of Re‑subdivision had to be registered. The inclusion of the condition specifying the Last Date provided certainty and gave effect to the policy objectives expressed in s 70: 'from the very start, the plaintiffs had absolute certainty that the strata plan had to be registered by, at the very latest, 1 May 2010 or 31 July 2010' (defendant's submissions, par 77).
(d)The parties had agreed a procedure by which the relevant date for the purpose of s 70(4) was known if that date was varied from the Registration Date. Further, the discretion to extend the Registration Date could only be exercised by the defendant for certain reasons:
Even though the defendant could act 'unilaterally' to extend the Registration Date, the parties expressly agreed that the defendant could not do so unless there was a delay beyond the defendant's control and, more importantly, they agreed the defendant could not, in any event, extend the registration date beyond [the Last Date]. In essence, from the outset, there was an overall finite, agreed period at the end of which the plaintiffs would be able to exercise the right of avoidance if the strata plan had not been registered (par 78; original emphasis).
(e)Condition 8.21 contained a 'bilateral agreement' setting 'an end date and defining, with clarity, the outer boundary of the "period" for the purposes of s 70(4)' (par 79).
The submission that s 70(4) of the Act did not require the parties to agree a specified date reflected a comparison that had been made by Kenneth Martin J in Mirvac v Yeo between the section and a broadly equivalent provision of the Sale of Land Act 1962 (Vic). The relevant section of the Victorian legislation, s 9AE, referred to a contract that 'specifies another period' and the 'end of that specified period'. The vendors in Mirvac v Yeo contended that the omission of the word 'specified' in s 70(4) was significant, when contrasted with the Victorian provision, as it indicated that Parliament had intended, by s 70(4)(a), to allow a vendor and a purchaser latitude ('contractual freedom') in how they formulated any agreement over the date by which a strata plan was to be registered. However, his Honour concluded, after reviewing the reasons of the Victorian Court of Appeal in Solid Investments Australia Pty Ltd v Clifford and Bayley [2010] VSCA 59; 27 VR 41 in which s 9AE was considered, that the distinction between s 70(4) and s 9AE in 'operative effect' was 'not that great' [89].
Buss JA referred in Harman Nominees to the submission that the omission of the word 'specified' from s 70(4)(a) was significant. His Honour said [69]:
It is true that s 70(4)(a), unlike analogous legislation in Victoria (see Solid Investments Australia …), refers to a 'period' rather than a 'specified period'. However, this difference is not significant because the 'period' within s 70(4)(a) must be 'agreed in writing by the purchaser and the vendor'. The absence of the word 'specified', in conjunction with the word 'period', is not inconsistent with a requirement, on the proper construction of s 70(4)(a) that the 'period' have a fixed and ascertainable end date when the parties agree in writing.

The effect of condition 8

The structure of condition 8 was that:
(a)The sale and purchase of a proposed lot was expressed to be conditional on Registration being effected by the Registration Date or any extended Registration Date. The parties could terminate the Sale Contract at any time after the Registration Date or any extended Registration Date if Registration had not occurred ‑ conditions 8.4 and 8.5.
(b)Condition 8.18 enabled the defendant to extend the Registration Date. As the defendant emphasised, that right could only be exercised in certain circumstances. However:
(i)only by the defendant could decide to extend the Registration Date;
(ii)the defendant could extend the Registration Date to whatever date it chose;
(iii)the defendant was not obliged to reach any agreement with the plaintiffs regarding the fact that an event specified in condition 8.18 had occurred or that the Registration Date should be extended as a consequence;
(iv)the defendant was also not obliged to reach any agreement with the plaintiffs over the period for which the date should be extended;
(v)the plaintiffs were simply notified that an event had occurred and was advised of the new Registration Date as determined by the defendant;
(vi)the plaintiffs could not 'Object' to the extension.
(c)Condition 8.21 limited the defendant's right to extend the Registration Date under condition 8.18.
The effect of condition 8 was that:
(a)The condition did not specify a single date that was fixed and ascertainable at the time that the Sales Contracts were made by which registration of the Strata Plan and the Plan of Re‑subdivision had to be effected for the purpose of s 70(4)(1) of the Act. As in Harman Nominees, the condition defined the Registration Date by reference to a specified date or a date determined by the defendant under condition 8.18. At the time that the Sales Contracts were made, the plaintiff purchasers could not identify with certainty a date on and from which they were entitled to avoid the sales under s 70(4) and to recover their deposits under s 70(5).
(b)The parties agreed by condition 8.18 to confer a right on the defendant that could be exercised unilaterally to extend the Registration Date. However, any extended date was not, in itself, a date that had been agreed between the plaintiffs and the defendant. The unilateral exercise of the right conferred by condition 8.18 did not constitute a further agreement between the plaintiffs and the defendant over the period within which registration of the Strata Plan and the Plan of Re‑subdivision was to be effected for the purpose of s 70(4)(a).
(c)Condition 8.21 did not contain an agreement fixing a date for Registration. The Registration Date was fixed by the definition of that term, read with conditions 8.4 and 8.5, and by any extension of the date notified by the defendant under condition 8.18. Condition 8.21 simply imposed a limit on the right to extend the date under condition 8.18.

The defendant's further submissions - Harman Nominees

The defendant contended in its further supplementary submissions on the effect of the decision in Harman Nominees that:
(a)'In essence' Buss JA and Murphy JA had concluded that the 'agreed "period" for the purposes of s 70(4)(a) must have an end point, ascertainable from the start when the relevant contract is made' (par 7). The Sales Contracts contained, by reason of the inclusion of condition 8.21, 'an agreement as to a period with a clear end point for registration'. That satisfied the object of pt V of the Act (par 8).
(b)Although Buss JA had observed that s 70(4)(a) contemplated a single and ascertainable date and not two or more possible dates on which the purchaser may avoid the sale (par 10):
(i)his Honour's reasoning did not support 'such a precise requirement for the purposes of giving meaning to "period" as used in s 70(4)(a)' (par 10);
(ii)his Honour's observation was made in the context of a contract that did not specify a last date by which registration had to be effected (par 11);
(iii)the observation was inconsistent with his Honour's acceptance that there can be several successive agreements over the period by which registration is to occur for the purpose of s 70(4)(a) (par 12).
(c)Buss JA had been concerned that a vendor should not be able to unilaterally decide any end date where there was no agreed end date at all. The Sales Contracts were significantly different from the contracts considered in Harman Nominees as they stipulated a last date beyond which the vendor could not extend the date for registration (par 13).
(d)The Sales Contracts contained two agreements for the periods by which registration was to occur ‑ a period ending on either 1 May 2009 or 31 July 2009 and a period ending on 1 May 2010 or 31 July 2010. The later end dates were agreed as the defendant was entitled to specify those dates by condition 8.18 (par 14). The parties had agreed to more than one period, ascertainable from the start, each with a specific cut‑off point. The second period 'with an ascertainable and fixed end date being the "Last Date" would be applicable instead of the first period if, by the use of Sale Condition 8.18, the defendant extended the Registration Date' (par 15). The agreement embodied in condition 8 satisfied 'the requirements for finality and certainty underpinned by the conception of an agreed "period" in s 70(4)(a)' (par 19).

Conclusion

In my view, the defendant's supplementary submissions glossed over the effect of the decision in Harman Nominees. I consider that the decision established the following matters regarding the meaning of s 70(4)(a) as applied to the Sales Contracts:
(a)The Court of Appeal decided that the word 'period' when used in s 70(4)(a) connoted a fixed and ascertainable (a measurable and finite) period [58] (Buss JA) and [136] (Murphy JA). The section requires that 'such' period must be agreed between the vendor and the purchaser. Consequently, the purchaser will know, with certainty, when it may exercise the right to avoid a sale contract under s 70(4)(a) at the time that the agreement is made. That promotes the object of pt V of the Act of protecting purchasers.
(b)It follows that the section requires the vendor and purchaser to agree a specified (fixed and ascertainable) end date. It is not sufficient that the parties to a sales contract agreed a date by reference to an event that will or may occur at some future time that was not fixed and known when the agreement was made or that they agreed a procedure by which an end date might be specified at some future point.
(c)The 'end date' that must be fixed and known to the purchaser at the time that the sales contract is made is the date on which the agreed period will end; that is, the date on and from which the purchaser may exercise the right of avoidance conferred by s 70(4)(a). Accordingly, it was not to the point that the Sales Contracts contained a provision specifying the last date by which Registration was to occur should the defendant determine at some time after the contracts were made that the Registration Date should be extended. The power conferred on the defendant by condition 8.18 to extend the Registration Date was very wide. However, it would have made no difference if the power was more circumscribed.
(d)Condition 8.21 contained an agreement 'as to a period with a clear end point for registration' as the defendant submitted. However, the Last Date would only provide the end date for the period within which Registration was to be effected if it happened to be the date determined by the defendant under condition 8.18. Condition 8.21 did not contain an agreement for the purpose of s 70(4)(a) and it did not fix the date on and from which the plaintiff purchasers could exercise the right conferred by s 70(4)(a). Rather, Registration was to be effected by the Registration Date or any extended Registration Date under condition 8.18. Condition 8.21 merely specified the last date by which Registration was to be effected; that is, it limited the period by which the Registration Date could be extended under condition 8.18. Put another way, condition 8.21 did not fix the Registration Date.
(e)Condition 8.4, read with condition 8.18, did not satisfy the requirements of s 70(4)(a) as the conditions did not specify a period within which registration was to occur that was fixed and ascertainable at the time that the Sales Contracts were made. Contrary to the defendant's submission, the proposition that s 70(4)(a) contemplated a single and ascertainable date and not two or more possible dates necessarily followed from the construction of the word 'period' as found by the Court of Appeal (and note the inclusion of the word 'therefore' in the second sentence of the reasons of Buss JA at [58]).
(f)A provision that merely specified an 'end point for registration' did not satisfy the requirement under s 70(4)(a) for an 'agreed period' nor did it achieve the object of pt V of the Act. The object of the part was achieved by requiring the parties to agree a fixed and ascertainable date so that purchaser would know when it could exercise the right conferred by s 70(4)(a) at the time when the agreement was made. Further, a determination by the defendant under condition 8.18 to extend the Registration Date would not result in a period within which registration was to occur that was an agreed period for the purpose of s 70(4)(a). The section refers to 'such period after the date of the contract as is agreed in writing'. The period fixed by a unilateral determination by the defendant is not such a period. What must be agreed by the purchaser and the vendor is the period rather than a means ‑ a procedure ‑ by which the vendor could unilaterally nominate the period.
Accordingly, I find that condition 8 did not contain an agreement for the purpose of s 70(4)(a) so that the plaintiffs were entitled to avoid their Sales Contracts by notices given any time after six months from the date on which the contracts were made (provided that the notices were given prior to registration of the Strata Plan or the Plan of Re‑subdivision).

The plaintiffs' alternative contentions and the defendant's response

The plaintiffs contended in the alternative that:
(a)The effect of the definition of Registration in the Sale Contracts was that the agreement contained in conditions 8.4 and 8.5 was not an agreement over the period within which registration was to occur for the purpose of s 70(4). Rather, the conditions were concerned with fixing the date by which a separate title for each proposed lot was to be created. Registration of a strata plan and the issue of separate titles were different matters.
(b)Performance of the defendant's obligations under the Sale Contracts was made conditional on Registration occurring within certain periods. An agreement that made the vendor's performance conditional on registration was not an agreement within the meaning of s 70(4) as the section was 'concerned entirely with the power of the purchaser to avoid the sale in the event that the Strata Plan is not registered within the time agreed by the parties, or in default of agreement, within six months after execution of the agreement': Sunworld Enterprises Pty Ltd v Lacco [2009] WASCA 175 [14] (Martin CJ).

Registration of a strata plan and the creation of separate titles

As previously noted, the definition of the term 'Registration' referred to the creation of separate indefeasible titles. The plaintiffs equated the creation of separate indefeasible titles with the issue of separate titles for the relevant lots comprised in the Strata Plan and the Plan of Re‑subdivision (and see the definition of 'Property' and 'Lot' in condition 38.1 of the Sales Contracts). Consequently, it was submitted that s 70(4) referred to the registration of a strata plan, whereas the definition of Registration in the Sales Contracts referred to the issue of separate titles with the result that the subject matter of the agreement contained in condition 8 was different to the subject matter of the agreement required by s 70(4)(a) (plaintiffs' submissions, par 61 and par 62).
The defendant's response to that contention involved an analysis of the provisions of the Act on the effect of registration of a strata plan/plan of re‑subdivision and the practice of Landgate in registering a plan and creating and registering certificates of title for the lots comprised in a plan. The relevant provisions of the Act are contained in pt II, div 1 and were summarised earlier in the reasons. The gist of the defendant's submissions was that 'a necessary and sufficient condition for the creation of a separate certificate of title for a lot under s 4(4) is the registration of the strata plan under ss 4(1) and 4(2)' (emphasis added) and that on registration of a plan of re‑subdivision, 'there is an automatic and simultaneous creation of indefeasible title for the newly created lots' (defendant's submissions, par 21 and par 33). Consequently, an agreement about the time by which indefeasible title for the relevant lots was to be created was an agreement for the period to which s 70(4)(a) referred:
… because the agreement that the creation of indefeasible title for the relevant lot has to be effected by the Registration Date is, of necessity, an agreement that provides for the period by which registration of the strata plan or the plan of re-subdivision, as the case may be, has to be effected. Registration of the strata plan or the plan of re-subdivision is a necessary and sufficient condition (and, in fact, a simultaneously occurring condition) for the creation of indefeasible title for each new strata lot (defendant's submissions, par 36).

There were several matters raised by the plaintiffs' contention and the defendant's response that were not directly addressed by the parties but which were, in my view, relevant to the issue to be determined. Those matters are best explained after further considering the relevant provisions of the Act and the Strata Titles General Regulations 1996 (the Regulations) and the procedure by which a plan and the certificates of title for the lots created by a plan are registered.
A strata plan is registered under the Act: see s 4. Registration is effected by the Registrar of Titles who is obliged to register a plan if it complies with the Act and the Regulations: s 5B(4) of the Act. Registration of plan of re‑subdivision is also effected by the Registrar.
Part 4 of the Regulations concerns registration of strata plans and plans of re-subdivision. Regulation 18 prescribes the manner of registration for a 'document', including a plan. It provides that registration of a document under the Act is effected by the notation of sufficient information to identify the transaction and the time and date of registration of the document on the relevant plan or relevant form in the plan and the authentication of that notation by the affixing of the seal and the facsimile signature of the Registrar of Titles. Regulation 21 provides a procedure for registering a disposition statement in respect of a plan of re‑subdivision. On being satisfied that the plan of re‑subdivision and the relevant instruments that are required to accompany the plan are in order for registration, the Registrar must direct that:
(a)the certificates of title in respect of the lots the subject of the application be cancelled;
(b)certificates of title be issued in respect of each lot on the plan of re‑subdivision;
(c)each certificate that is issued or the strata/survey‑strata plan be endorsed so that every notation relating to an encumbrance that applied to the lots and common property in the scheme the subject of the application is brought forward and endorsed on the certificates of title issued in respect of the lots on the plan of re‑subdivision or the strata/survey‑strata plan in respect of the common property on the plan of the re‑subdivision in accordance with the disposition statement that accompanies the application.
The practice followed by the Registrar of Titles in registering a strata plan or a plan of re-subdivision is summarised in the Strata Titles Practice Manual published by Landgate (the Manual). The parties referred to two editions of the Manual in their submissions ‑ edition 6.0, January 2008 (which applied at the time that the Sales Contracts were made) and edition 7.0, January 2011 (the current edition). The principle difference between the editions identified by the parties was that edition 7.0 described a process for lodging plans and documents for registration known as 'lot synchronisation' (see section 13.1.1). That process has been available since 1 June 2010. The Strata Plan and Plan of Re-subdivision were registered before 1 June 2010. Accordingly, the references to the Manual in what follows are to edition 6.0 (the Sales Contracts were made in 2007, except for the contract entered into by the fifth plaintiff; however, the parties did not suggest that it was necessary to refer to an earlier edition of the Manual).
Reference was also made in submissions to the Land Titles Registration Practice Manual (edition 9.0, March 2010) published by Landgate (the Registration Manual). There was no objection to the manuals being received as evidence of the practice adopted by the Registrar of Titles for registering a strata plan or plan of re‑subdivision.
It is not proposed to set out the full detail of the registration process as described by the Manual and the Registration Manual. However, the following matters were particularly relevant to the issues under consideration:
(a)The Registrar of Titles is required to be satisfied that a plan complies with the Act and the Regulations prior to registration. Accordingly, a plan that is lodged for registration is audited for compliance. The plan is placed 'in order for dealings' once it has been audited and found to comply provided that it is not necessary for the plan to be approved by the Western Australian Planning Commission (WAPC). The plan will only be placed 'in order for dealings' when WAPC approval has been obtained if that is required (s 13.1 and s 13.2 of the Manual).
(b)An application to register a plan can only be lodged at Landgate once the plan has been placed 'in order for dealings' (s 13.1).
(c)Any requirements that must occur before the plan can be registered will be noted on the plan when it is placed 'in order for dealings'. Further, certain steps will be taken in relation to encumbrances and easements affecting the parcel of land prior to registration. So, for example, mortgages, charges, leases and caveats over the whole of the land in the relevant parcel will be brought forward and shown on the title for every lot on the plan. Mortgages, charges and leases of part of the land in the parcel are removed before registration and caveats as to a portion of the parcel are withdrawn (s 13.2).
(d)The following statement appears in the Manual (s 13.2):
On the registration of the Strata/Survey‑Strata Plan, separate titles are automatically issued for each lot on it in the name of the applicant. No separate application for titles is needed. No titles are created and registered for common property in Strata Plans or for common property lots in Survey‑Strata Plans. (emphasis added)
(e)A strata company is immediately and automatically created on registration of a strata/survey‑plan (s 13.6).
The Registration Manual also contained a section on subdivision and strata/survey‑strata plans (s 6). The Registration Manual refers to the fact that an application for registration of a plan can only be made once the plan has been marked 'in order for dealings' (s 6.4.1). The Registration Manual further states that where no comments have been made by the auditor on a plan placed 'in order for dealings', the plan is unconditional and 'merely requires an application by the land owner … together with the production of the former duplicate titles, for new titles to be created and registered'. Further, 'on the creation and registration of the titles the status of the plan is changed from in order for dealings to approved, with an operative date being the same date that the application for new titles was lodged' (s 6.1.7). The Registration Manual also describes the process by which encumbrances affecting the relevant parcel are dealt with prior to registration and states (s 6.4.1):
Concurrently with the registration of the strata/survey‑strata plan, separate titles are prepared for each lot on it in the name of the applicant. No titles are created and registered for common property in strata plans or for common property lots in survey‑strata plans.
The defendants contended that the practice described in the Manual and the Registration Manual established that separate titles for the lots comprised in a strata plan or plan of re-subdivision were created automatically and simultaneously with the registration of a plan. That, it was submitted, was consistent with the legal position ‑ registration of the plan was the necessary and sufficient step required for the creation of separate titles (the defendant apparently drew a distinction between registration of a plan being sufficient to create a separate indefeasible title to the lots comprised in the plan as a matter of law and the simultaneous registration of a plan and the creation of separate indefeasible titles to the lots comprised in the plan as a matter of fact ‑ see par 36 of the defendant's submissions reproduced earlier in the reasons).
The plaintiffs, on the other hand, contended that the statements contained in the Manual and the Registration Manual were merely statements of conclusion. The manuals did not establish that, in fact, separate titles were issued simultaneously with (on the same day as) the registration of a strata plan or plan of re‑subdivision.
As previously noted, the plaintiffs equated the creation of separate indefeasible titles for the lots comprised in a strata plan or plan of re‑subdivision with the issue of titles. The passages reproduced above from the Manual and the Registration Manual referred to the creation and registration of certificates of title and the issue of titles. It was not clear from the manuals whether the expressions 'creation and registration of titles' and 'issue of titles' were used to denote different processes or whether they were used interchangeably to describe the same process. Further, the manuals did not identify exactly when the acts of registering a strata plan and the creation and registration of titles or the issue of titles (if there is a difference between the creation and issue of titles) actually occurred. The fact that titles were automatically issued for each lot on the registration of a strata plan and that separate titles were prepared 'concurrently' with the registration of a strata plan did not necessarily mean that separate indefeasible titles were created or titles issued on the same date as the strata plan was registered. That point was emphasised by the plaintiffs at the hearing.
The basis for the defendant's submission that an agreement about the period within which separate indefeasible titles were to be created was an agreement about the period within which the Strata Plan and the Plan of Re‑subdivision were to be registered for the purpose of s 70(4)(a) of the Act was not entirely clear. There were at least three possibilities. It might be contended that:
(a)The practice of the Registrar of Titles is to simultaneously register a strata plan and create and register certificates of title for each lot described by the plan ‑ that is, a plan will only be registered when the certificates of title to the lots comprised in the plan have been prepared and are ready for registration so that, as a matter of administrative practice, plans and certificates of title for the lots described by the plans are registered on the same day.
(b)The creation and registration of separate titles is a necessary step to complete the registration of a plan as a matter of law ‑ that is, it may be that the Act and/or the Regulations expressly or impliedly provide that a plan will only take effect as a registered plan (with, for example, the consequences stated in s 4 of the Act) when separate titles for the lots comprised in the plan have been created and registered.
(c)The registration of a strata plan or plan of re‑subdivision, in itself, creates separate indefeasible titles to the lots comprised in the plan ‑ that is, that registration of a plan is sufficient for the creation of separate indefeasible titles.
The parties only addressed the first of those possibilities in detail notwithstanding that the second or third possibility was implicit in the defendant's submissions. Further, they did not consider the provisions of the TLA for the purpose of construing the expression 'the creation of separate indefeasible titles' when used to define Registration and Registration Date. Rather, they assumed that the plaintiffs' contention was to be determined according to the provisions of the Act and the Regulations and whatever procedures were described in the manuals published by Landgate.
The term 'indefeasibility' is, of course, used to describe the effect of registration of an instrument under the Torrens land registration system (although the words 'indefeasible' or 'indefeasibility' do not appear in the TLA and see D J Whalan, The Torrens System in Australia (1982) at 296 ‑ 297 on why the expression 'indefeasible title' may be a misnomer). The title of a registered proprietor comes from the fact of registration under Torrens title legislation. That was explained by Barwick CJ in Breskvar v Wall (1971) 126 CLR 376 (at 385):
The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor.
Similarly, in Peldan v Anderson [2006] HCA 48; 227 CLR 471 the High Court said, in relation to a unilateral severance of a joint tenancy effected by the registration of a form of transfer executed by one of the joint tenants ([20]):
… the Carindale property was land the title to which was provided by the Queensland Torrens title legislation, the Land Title Act. In such a case, the interests as joint tenants were extinguished by registration of a new instrument which created an indefeasible title as tenants in common. This is because, notwithstanding that the Land Title Act (like cognate statutes in other States) uses the language of 'transfer', title is comprised by the record contained in the register. A lot or an interest in a lot 'passes' by registration of an instrument … The title of the registered proprietor comes from the fact of registration, and it is this which is the source of the title rather than what Windeyer J contrasted as 'a retrospective approbation of … a derivative right'.
Section 48 of the TLA provides that the Registrar shall cause to be maintained a Register. Section 4(3) of the Act provides that a strata/survey‑strata plan shall 'for the purposes' of the TLA be deemed upon registration under the Act to be embodied in the Register.
Section 48A TLA provides that each certificate of title 'created for registration' shall be in an approved form. The certificate of title is to be endorsed with the particulars of all dealings and matters affecting the land that is the subject of the certificate where the particulars are required by the TLA to be registered or entered in the Register: s 48A(2).
Section 48B(1) TLA provides that 'where a certificate of title has been registered the Registrar shall issue a duplicate certificate of title to the proprietor of the land that is the subject of the certificate of title'. However, the proprietor may request that a duplicate certificate of title not be 'issued' or that it be 'issued' to another person authorised by the proprietor to receive the duplicate.
Section 52 TLA provides that a certificate of title, in the case of a paper title, is registered when it has been allocated a reference number distinguishing it from all other certificates of title and it has been sealed. A certificate of title, in the case of a digital title, is registered when it has been allocated a reference number and it has been incorporated into the Registrar's digital database as a certificate of title.
Section 58 TLA provides that no 'instrument' shall be 'effectual to pass any estate or interest in any land under the operation of this Act or to render such land liable to any mortgage or charge or to make any dealing in respect of Crown land effective' until registration. However, on registration 'the estate or interest comprised in the instrument shall pass or … the land shall become liable in manner and subject to the covenants and conditions set forth and specified in the instrument or by this Act declared to be implied in instruments of a like nature'.
The term 'instrument' is defined by s 4 of the Act to include various documents ‑ most relevantly, a 'document for the conveyance, assignment, transfer … of freehold land'. The definition of instrument also expressly refers to a document lodged with a plan or diagram under pt IVA for the purpose of creating an easement or restrictive covenant under that Part. Part IVA of the TLA is concerned with the creation of easements and restrictive covenants by notations on subdivision plans and diagrams. However, the definition of 'instrument' does not otherwise refer to a strata plan or plan of re‑subdivision.
The parties did not focus in their submissions on the process of construction by which the meaning of the expression 'creation of separate indefeasible titles', as used to define the term 'Registration', was to be objectively ascertained. That may have reflected the approach taken by the plaintiffs. It was assumed that the expression referred to the 'issue' of separate titles. However, the reasoning for that assumption was not exposed nor did not the plaintiffs make any submission as to what was meant by the issue of separate titles ‑ the next step in their argument was the assertion that the subject matter of an agreement over the issue of separate titles was different to the subject matter of an agreement over the registration of a strata plan or plan of re‑subdivision.
In my view, the following matters might be relevant to the proper construction of the expression 'creation of separate indefeasible titles' to the extent that the provisions of the Act, the Regulations, the TLA and practices of the Registrar provided a context within which the expression was to be construed:
(a)The TLA distinguishes between the creation of a certificate of title for registration and the issue of a duplicate certificate of title. It is not immediately apparent from the provisions of the TLA that the expression 'creation of separate indefeasible titles' is to be equated with the issue of separate titles.
(b)I am not certain that I fully appreciated the purport of the defendant's submission that the registration of a strata plan and a plan of re‑subdivision was a sufficient condition for the creation of separate indefeasible titles for the lots comprised in the plan. In particular, it was not clear whether the submission was based on a view about the effect of the provisions of the Act about registration or whether it was founded on the defendant’s assertions about the Registrar's practice as described in the Landgate manuals. However:
(i)It is obvious that registration of a strata plan/plan of re‑subdivision is necessary for the creation of separate titles for the lots comprised in the plan. Lots are only created on the registration of a plan under the Act. However, titles to those lots can only be created under the TLA.
(ii)An indefeasible title to a lot comprised in a strata plan or a plan of re‑subdivision is conferred by registration under the TLA of the certificate of title created for the lot. I do not consider that an indefeasible title to a lot is created by the registration of a strata plan or a plan of re‑subdivision under the Act notwithstanding that the plan is deemed to be embodied in the Register on registration and the lots comprised in the plan may be dealt with in the 'same manner and form' as land held under the TLA on registration of the plan.
(iii)Consequently, registration of a strata plan or a plan of re‑subdivision is not a sufficient condition for the creation of separate indefeasible titles for the purpose of the satisfying the definition of Registration and fixing the Registration Date.
(c)Section 4(4) of the Act describes a procedure that links the registration of a strata plan with the creation and registration of separate certificates of title for the lots comprised in the plan. A memorial is entered on the certificate of title relating to the parcel of land the subject of the plan where the plan is registered under the Act. 'Thereupon' the Registrar of Titles may create and register a separate certificate of title for each lot. Consequently, s 4(4) contemplates a three‑step process: registration of the strata plan; entry of a memorial on the original certificate of title; and the creation of separate certificates of title for each lot comprised in the plan. However, the Manual and the Registration Manual do not refer to the entry of a memorial on the certificate of title for land that is the subject of a strata plan and they do not indicate whether the three steps contemplated by s 4(4) are undertaken simultaneously as a matter of practice. Further, the Registration Manual states that the status of strata plan is changed from 'in order for dealings' to 'approved' on creation and registration of the titles to the lots described by the plan. That suggests that registration of a plan follows the creation and registration of separate titles, whereas s 4(4) suggests that the order may be the other way around. Again, the Registration Manual does not establish whether those matters invariably occur simultaneously as a matter of practice. Finally, the Manual and the Registration Manual do not describe the process by which certificates of title are actually registered according to the procedure prescribed by s 52 TLA. Consequently, it is not possible to determine from the manuals when that occurs according to the Registrar's practice.
(d)There may be differences between the registration of a strata plan and a plan of re‑subdivision and more particularly, the process by which they are registered and the titles for the lots comprised in the plans are created and registered. The parties did not expressly deal with whether the Act or the Regulations distinguished in a material way between the registration process for a strata plan and a plan of re‑subdivision or whether there were relevant differences in the Registrar's practice relating to each form of plan.

It follows from those matters that I do not accept that the expression 'creation of separate indefeasible titles' is necessarily to be understood as referring to the issue of separate titles or the registration of the Strata Plan or Plan of Re‑subdivision. Further:
(a)The parties argued only some of the matters to which reference has been made. Moreover, they did not expressly develop their arguments by reference to the principles of construction relevant to the ascertaining the meaning to be given to the term 'Registration' as defined in the Sales Contracts.
(b)The manuals published by Landgate did not answer a question that might prove significant for the determination of the plaintiffs' contentions ‑ whether, as a matter of practice, certificates of title are created and registered (registration being essential to the creation of an indefeasible title) at the very same time as a strata plan and a plan of re‑subdivision are registered ‑ the issue for s 70(4)(a) whether there had been an agreement about a period that was fixed and ascertainable.
(c)The issue is one that the parties have sought to have determined as a preliminary issue. It has been determined on other grounds.
I have concluded that the first of the plaintiffs' alternative contentions on this issue should not be finally determined having regard to those matters. The parties should be given an opportunity to adduce further evidence and make additional submissions on the contention should it become necessary for the contention to be finally determined. That course will, in my view, best do justice as between the parties.

Condition 8.4 and s 70(4)(a)

Condition 8.4 provided that the sale and purchase of the Property was conditional on Registration being effected by the Registration Date or any extended Registration Date. The plaintiffs contended that the inclusion of a provision that made the defendant's performance of its obligations under the Sales Contracts conditional on the registration of the Strata Plan or the Plan of Re‑subdivision was incompatible with the requirements of s 70(4)(a) so that any agreement contained in the Sales Contracts regarding registration was not an agreement within the meaning and for the purpose of the section.
The plaintiffs relied on the passage in the reasons delivered by Martin CJ in Sunworld Enterprises that was reproduced earlier in the reasons to make that contention. However, in my view, the submission ignored the context within which the Chief Justice's observation was made.
The sale contract made between the parties in Sunworld Enterprises provided that the vendor would prepare a strata plan and apply for registration of the plan prior to the date for settlement under the contract. It was further agreed that 'in accordance with s 70(4) of the [Strata Titles Act] the strata plan may be registered within 30 months after the vendor accepted the purchaser's offer and either party could terminate the sale contract after 32 months from the date on which the purchaser's offer had been accepted' if the strata plan had not been registered. The vendor purported to terminate the contract 36 months after it was made and prior to registration of the strata plan.
It was held at first instance that the vendor's power to terminate the contract was derived from s 70(4) of the Act, presumably as the right to terminate was contained in a clause that also referred to that section. On appeal, the Chief Justice stated that, 'I cannot see any basis upon which it could be concluded that such part of cl 11.4 which confers an express power upon the seller to terminate a contract could be "derived from s 70(4)" in any sense' [14]. That was because s 70(4) was concerned with the power of the purchaser to avoid a sale in the event that a strata plan was not registered within an agreed time or within six months after the making of the sale contract. The vendor did, however, possess a power to terminate the contract - the power conferred by the very provisions of the contract [15]. Consequently, the Chief Justice's observation regarding s 70(4) of the Act was merely to indicate that the section was not relevant to construing the power to terminate the sale contract conferred on the vendor or the circumstances in which that power could be exercised. The fact that the vendor's right to termination was contained in a clause that was also directed to the purchaser's right to avoid the sale contract under s 70(4)(a) was of no consequence.

Issues 4 and 5

The determination of issues of 4 and 5 depended on the outcome of issues 1 to 3. It follows from the findings made on issues 1 to 3 that each of the plaintiffs avoided the sales of the proposed lots the subject of their Sales Contracts by giving notices under s 70(4)(a) of the Act.