Opie and Opie v Collum; Collum v Opie and Opie No. Scgrg-99-826 Judgment No. S376

RICHARD KEITH OPIE (First Plaintiff) and

LISA MARIE OPIE (Second Plaintiff) and
STELLA ANNE COLLUM (Defendant) and
STELLA ANNE COLLUM (Plaintiff by counter-claim) and
RICHARD KEITH OPIE (First Defendant by counter-claim) and
LISA MARIE OPIE (Second defendant by counter-claim)
[1999] SASC 376

1 MARTIN J. The defendant is in the process of constructing a house on a block of land immediately adjacent to a house property owned by the plaintiffs. The footings and floor slab have been laid and a large integrated garage constructed. The garage includes a concrete slab that forms both the ceiling of the entire garage and the floor of an upper section which covers half the total area of the garage. A brick wall has been built along the common boundary between the properties. A dispute has arisen concerning aspects of that construction and, in particular, concerning the wall. The plaintiffs’ claim is based in contract and seeks to restrain the defendant from constructing the house and, including the wall, other than in accordance with plans referred to as "the coloured plans". They also seek a mandatory injunction requiring the defendant to remove so much of the wall as is already erected and which does not conform with the coloured plans.
2 The statement of claim also seeks damages. The defendant has filed a counter-claim seeking damages arising out of the conduct of the plaintiffs in instituting these proceedings. As the house is under construction, however, an early trial was granted on the basis that it would proceed only on the specific contractual issues related to the construction of the dwelling and the wall and on the equitable relief sought by the plaintiffs. Evidence-in-chief from all witnesses has been given by affidavit supplemented by brief oral examination. All witnesses were cross-examined.
Background
3 The plaintiffs are married and have twins aged three and a half years. The first plaintiff has worked in the real estate industry for approximately fifteen years. The second plaintiff is a medical practitioner. The defendant is married to David Cheney. Both the defendant and her husband have known Mr Opie for approximately ten years. The defendant is a solicitor and Mr Cheney has been involved in the design and construction of new homes, specialising in reproduction period styles, since 1985. The defendant and Mr Cheney have had business dealings with Mr Opie over a number of years. Mr Opie is familiar with the types of developments undertaken by Mr Cheney.
4 In March of 1997, on behalf of the defendant, Mr Cheney purchased at auction the house now owned by the plaintiffs, together with an adjoining tennis court, situated at 157 East Terrace, Adelaide. The tennis court block was on a separate Certificate of Title. Both blocks front onto the western side of East Terrace. Access can be gained to the rear of the blocks through Harvey Lane. The tennis court block adjoins the northern side of the house block. The wall at the centre of the dispute is the southern wall of the residence being constructed by the defendant and Mr Cheney on the tennis court block ("the southern wall"). It stretches almost the entire east to west length of the common boundary.
5 Through the presence of a colleague of Mr Opie’s at the auction, Mr Opie became aware immediately of the purchase by Mr Cheney. Shortly after the purchase, Mr Opie rang Mr Cheney to ask what he planned to do with the house. From his previous association with Mr Cheney he was aware of Mr Cheney’s desire to build his ultimate home on East Terrace. Mr Opie anticipated that Mr Cheney might seek to sell the house and build on the tennis court block. On this first occasion of contact about the property, Mr Cheney indicated he was not sure what he and the defendant would do with the house, but they were seeking to develop the tennis court land. Mr Opie agrees he may well have indicated he had a client who was interested in purchasing the house. He suggested to Mr Cheney that if he wanted to sell the house he should make contact.
6 According to Mr Opie, he again contacted Mr Cheney in about October 1997 and asked whether Mr Cheney was interested in selling the house. Mr Opie said the conversation followed the usual course with Mr Cheney, who tended to take over. With very little prompting, Mr Cheney explained that he and Ms Collum were building a very special home for themselves which would be ornate and fit into the character of the street. Mr Opie said it was not uncommon for he and Mr Cheney to talk about East Terrace because they both regarded it as a magnificent location. Mr Cheney told him they would sell the existing house, but they did not want to do so until all heritage and other issues relating to his plan to develop a new home on the tennis court had been resolved.
7 Mr Cheney recalls only one telephone conversation during 1997 following the purchase of the property. He said it occurred in late September or early October 1997. The difference of recollection between Mr Opie and Mr Cheney as to whether they spoke on one or two occasions in 1997 is not of any particular significance in itself.
8 In about March 1998, Mr Opie again telephoned Mr Cheney about the house property. By this time he was not inquiring as a land agent with a view to purchasing on behalf of a client. He and Dr Opie had become interested in purchasing the house for themselves and their family. There is a difference of recollection between Mr Opie and Mr Cheney as to the content of this conversation.
9 According to Mr Opie he asked whether Mr Cheney had made a decision and was told that the property had been offered to friends who had now declined to proceed with the purchase. Mr Cheney said he would have Ms Collum send a copy of the floor plan of the existing house to Mr Opie (which was subsequently received on 2 April 1998 in the form of a "Brock Partners brochure" relating to the previous sale). Mr Opie mentioned to Mr Cheney that he had heard on the grapevine that Mr Cheney was having problems with the heritage requirements in relation to his proposed development and, in particular, that the Heritage Department was concerned about the proximity of the proposed construction to the northern boundary of the existing house property.
10 Mr Opie said that at the conclusion of the conversation Mr Cheney referred to Mr Opie talking to his client and getting back to Mr Cheney. After hanging up, it occurred to Mr Opie that Mr Cheney was not aware that Mr Opie was inquiring on his own behalf. He telephoned Mr Cheney immediately and advised him that he was inquiring for himself and his wife and not on behalf of a client. The conversation finished on the basis that Mr and Dr Opie would talk about the matter and speak further with Mr Cheney. Subsequently a time was made for Mr and Dr Opie to inspect the premises.
11 Mr Cheney gave evidence that during the conversation of March 1998, Mr Opie again advised him that he had a client who was interested in purchasing the house property. Mr Cheney denied that Mr Opie indicated it was Mr Opie and his wife who were interested in purchasing the house. He said they spoke about the appeal in connection with the development application which had been heard by the Environment, Resources and Development Court. (Mr Opie denied there was any mention of the appeal.) As to the provision of a floor plan of the house, according to Mr Cheney there was no arrangement during this conversation for the provision of that document as the topic was subsequently discussed at a meeting at George Street, Norwood.
12 Following these telephone conversations, face to face meetings critical to the plaintiffs’ case occurred in April, 1998. According to Mr Opie, he met with Mr Cheney on only one occasion at premises occupied by Mr Cheney and the defendant in George Street, Norwood. That meeting occurred early in April 1997 and was followed by one on-site meeting involving both plaintiffs and Mr Cheney on 7 April 1998. Mr Cheney maintained there were two meetings at George Street and two on-site. In addition, their versions as to the content of their discussions are starkly opposed on critical issues. I have been driven to the conclusion that, in certain respects, those differences cannot be explained by honest differences in recollections.
The Plaintiff’s Case
13 Mr Opie said he met with Mr Cheney at George Street, Norwood prior to 7 April 1998. He accepted it could have been on or about 1 April 1998. He said they discussed the interest he and his wife had in purchasing the house and their concerns for their young children in connection with living in the city. They discussed the East Terrace land opportunity. Mr Cheney mentioned that he had Mr McElhinney and Mr Hayes QC acting for him and that they were working on loop-holes in the Heritage Act. Mr Opie denied, however, that there was any mention of the word "appeal". He said Mr Cheney was uncertain whether he would obtain approval to build what he wanted to build.
14 According to Mr Opie, it was during this meeting that he was given a set of coloured plans. He explained the context in this way:
"During the course of our meeting inside George Street, we went through discussions of what we wanted in terms of a home for our family, and that we would be buying this home for the next - long period of time as our family home. We were aware that it did require and need a lot of work and we would take a very long-term approach to that. So we discussed those general parameters. We were discussing the proximity of the building to ours and the streetscape, etc. David gave me a copy of some, what we called, coloured plans, and we went through those."
15 Mr Opie went on to explain that Mr Cheney presented the plans as something "very very special". He maintained these were the only plans that were produced to him by Mr Cheney. He said:
"What David said to me is ‘I`ve got some very special plans that we had to get coloured in for approval with Heritage and council, so we had to do very elaborate plans to show them what the building was going to look like’, and he insinuated this was the Ben Hur production of a plan which he needed to submit to give the ultimate presentation to Heritage and, from that, we had our discussions which went through a whole lot of aspects with streetscape to set-backs and all those issues."
16 According to Mr Opie they discussed the realignment of the boundary dividing the two properties and the points at which the southern wall, to be built along the common boundary, would step in and then step back ("the returns"). Mr Opie said:
"I then asked Mr Cheney how high the wall on the southern side of the Proposed Development would be. I said I was concerned about the impact the height of the wall would have on the north-west corner of the existing house and the backyard. Mr Cheney said that the height of the southern wall of the Proposed Development could be seen in the Coloured Plans. He pointed to various features on the sheet of the Coloured Plans which depicts the southern elevation of the Proposed Development (4), and the sheet which depicts the street scape (1)."
17 Mr Opie said Mr Cheney ran his fingers across the plan indicating a constant height for the wall and, subsequently, Mr Opie marked the points on that particular plan as points "A" and "B".
18 The coloured plans disclosed a proposed development of significant size utilising the entire block for construction except for a small front garden at the eastern end fronting onto East Terrace. The front section of the intended residence at the eastern end of the block was shown as a two-storey construction of mansion type proportions. That section was shown on a page of the plans referred to as the "streetscape" to be a little lower and smaller in overall dimensions than the existing house on the southern side eventually bought by the plaintiffs. Moving west, a middle single storey section was drawn containing a kitchen on the southern side and a courtyard on the northern half. The western section adjoining the rear boundary was shown as a large garage. The southern half of the garage was a single storey, but the northern half included a second storey of two bedrooms.
19 The meeting at Norwood is the first step in the first plaintiffs’ case concerning the representations made by the defendant through Mr Cheney upon which the plaintiffs said they relied in entering into the contract to purchase the house property.
20 The second stage of the representations occurred on 7 April 1998 when there was an on-site inspection involving both of the plaintiffs and Mr Cheney. Mr Opie said he told Mr Cheney of their plan to open up the north-western corner of the existing house to create an open kitchen and meals area, leading out to the pergola. They moved into the rear yard of the house where the presence of outbuildings and growth over the tennis court fence made it difficult to get to the western boundary from inside the property. At a point about two-thirds along the common boundary between the properties, and just past the western alignment of the existing house, a set of double gates led from the backyard of the house to the tennis court. When in the backyard, Mr Opie advised Mr Cheney that it was important to him and his wife to know what backyard would exist after the boundary realignment and the new house was built. He explained they intended that the property be their family home for the next twenty to thirty years and were thinking of putting in a pool adjacent to the north-western corner of the house. In addition, they planned to establish an entertainment area incorporating the land between the pool, the house and the existing pergola (which is situated on the northern wall near the north-western corner of the house). Mr Opie said he advised Mr Cheney that the area of land with which they would be left on the northern side of the house, and particularly in the area of the existing pergola, was critical to their decision whether to purchase. In the context of that area, Mr Opie said he was concerned about the position of what is referred to as the "western return" in the wall. That return was a step in the wall shown on the coloured plans as 13 metres east of the western end of the common boundary. The boundary wall was drawn as stepping or returning one metre to the north before continuing east, thus increasing the area of the relatively small rear yard. Mr Opie wanted to know how far to the west of the western wall of the house that return would occur. He said that from the north-western corner of the house, Mr Cheney took about five large paces in a westerly direction and stopped. He indicated he was at the point where the western return of the wall would occur.
21 The affidavit of Mr Opie then proceeded as follows:

I asked Mr Cheney to indicate what the final height of the southern wall of the Proposed Development would be. Mr Cheney pointed to the pergola and said that the top of the wall of the Proposed Development would be at about the top of the pergola. At the time he did so Mr Cheney was standing in the vicinity of the gates to the tennis court. He then pointed to the old shed in the north west corner of the House Property and said that the height of the wall would "certainly not be as high as the old shed".
In the course of our meeting on 7 April Mr Cheney also said that my wife and I should not be concerned about the height of the southern wall of the Proposed Development as he was having difficulties obtaining planning approval. He said one of the primary concerns which had been expressed by the authorities in the course of that process was the heritage significance of the existing house and in particular, the verandah on the northern side. He said that the authorities had expressed concern about the impact that the construction of the Proposed Development might have on the amenity of the existing house. He said the particular issue was the proximity of the southern boundary of the Proposed Development to the existing house, the ultimate height of the Proposed Development and the effect it might have on the view from the street along the northern wall of the existing house. Mr Cheney said that he had serious concerns about whether he would be able to obtain planning approval to construct the southern wall of the Proposed Development at the height and in the position indicated in the Coloured Plans. He said he thought he might be required to move the wall back from the boundary and that he was involved in court proceedings over "these issues" at the time. Mr Cheney said words to the effect of "You will be protected. I am arguing about these same issues with the Heritage people"."
22 During cross-examination Mr Opie maintained his versions concerning the critical aspects of the representations made by Mr Cheney orally and through the use of the coloured plans. He said that Mr Cheney told him that the existing house would be grander and higher than the one being constructed. Mr Opie also said, however, that Mr Cheney told him the house to be built would be controlled in height and of a similar height to the existing house, but would not exceed the existing house in height. He agreed that he knew the type of houses generally built by Mr Cheney were very large houses and that he was proposing to construct another of those very large houses like the existing house. From Mr Opie’s perspective, these statements confirmed the impression he gained from the coloured plans. Mr Opie said he understood from the coloured plans that the existing residence would be "just a little bit higher" than the house to be constructed.
23 While acknowledging that more detailed plans than the coloured plans would be needed for approval to build, Mr Opie maintained that he accepted what he was told by Mr Cheney, namely, that the coloured plans were prepared for submission to the Adelaide City Council in connection with approvals related to the heritage requirements. He denied Mr Cheney’s evidence of the events at George Street, Norwood in their critical aspects, particularly in connection with Mr Cheney’s version that they discussed and examined a set of detailed development plans ("the development plans"). He said there was no possibility of development plans having been examined or that he had forgotten such an examination. There was only one set of plans, namely, the coloured plans.
24 It was suggested to Mr Opie that he could not have believed that the coloured plans were the plans relied upon by Mr Cheney in his application to the Adelaide City Council for approval of the proposed development. Mr Opie said it was in his understanding that the plans were used in seeking a planning approval but that, in due course, more detailed plans would be required for building approval. He was cross-examined about his experience of development applications and said he had worked with developers who had lodged plans, but had not been physically involved with any of that work. From his limited experience, in addition to the coloured plans, he thought specific plans containing details of the construction from an engineering point of view would be required before building approval was obtained. He did not ever seek to look at such plans because he did not believe that the application had reached that stage.
25 After the conclusion of Mr Opie’s evidence, the plaintiffs called Michael Hillan, an experienced architect and licensed builder. During his evidence it emerged that Mr Opie, on behalf of others, had dealt with Mr Hillan in respect of a proposed development for a new residence. Detailed development plans had been prepared and lodged and Mr Hillan had engaged in discussions with Mr Opie concerning those plans.
26 Mr Opie clearly drew a distinction between the coloured plans which he said he believed were used in respect of planning approval and building plans containing the necessary technical specifications. His knowledge of plans such as those referred to by Mr Hillan is not inconsistent with his evidence concerning the distinction between the types of plans. In addition, contrary to the tenor of the cross-examination, later evidence clearly established that the coloured plans were attached to the development application dated 24 July 1997 which was filed with the Adelaide City Council.
27 As to the various topics Mr Cheney said were discussed at the different meetings, Mr Opie agreed that many of those topics were mentioned although, in certain respects, he differed as to the context of those discussions. In the main, however, those matters are peripheral to the critical issues. He denied the critical aspects of Mr Cheney’s evidence concerning the on-site meeting. In particular, he denied the development plans were used during any meeting and maintained that Mr Cheney had demonstrated the intended height of the southern wall by reference to the pergola and the rear shed. He said he and Dr Opie had two or three critical matters to discuss with Mr Cheney and the height of the wall was one of those matters. He said:
"[O]ur inspection at the property was basically two-fold. One, I was to look at the house to ascertain the position of boundaries and heights, and I wasn’t interested in listening to any sort of waffle or hearsay. So we questioned David - or I questioned David about how high it was actually going to be and made him specifically point to where it was going to be, and then in almost jest "It’s not going to be anywhere near as high as the stable" because he knew we were concerned about it.
Q.     He pointed to the pergola and said "It would be at about the top of the pergola".
A      Correct.
Q.     And then you say he then pointed to the shed and said that it would not be as high as the shed.
A.     Nowhere near as high as the shed."
28 Mr Opie also denied that Mr Cheney used the northern balcony balustrade and the stable gable as end point indicators of the approximate height of the southern wall. Similarly, he said there was no reference to the galvanised posts poking up through the vines.
29 It was clear from the cross-examination of Mr Opie that, according to his evidence, Mr Cheney did not ever nominate a figure in metres or any other form of specific measurement for the height of the southern wall. The height was given purely by reference to the coloured plans, the pergola and the shed. Mr Opie said the claim for an injunction to restrain construction over 3.8 metres in height arose because, although the height of the pergola was subsequently measured as 3.1 metres, the architect retained to give expert evidence for Mr Opie had said that the coloured plans demonstrated the wall was intended to be 3.8 metres. In those circumstances Mr Opie accepted that it could only be limited to 3.8 metres and not the 3.1 metres.   He said it had not occurred to him that if the wall was restricted to 3.8 metres, the height of the ceilings of the middle section of the defendant’s house would be so low as to be completely out of character with the style of the house being constructed.
30 Toward the end of the cross-examination, Mr Opie gave a long answer that demonstrated the degree of frustration and hopelessness that he experienced in his dealings with Mr Cheney. He acknowledged that in March 1999 he saw the framework for the garage being erected which provided a clear indication that the wall on the southern side would be higher than he thought it should be. He agreed he did not do anything about it when he saw those frames erected and, in a lengthy answer, explained why he did not take action at that time. He said after the events concerning the western return where he was told it was their or his mistake, there were a series of difficulties which always seemed to be turned around to be his fault. He said he reached the point where he was "absolutely shell-shocked" and was scared to walk out of the back door for fear of what would happen next. He was in a state of disbelief and almost too embarrassed to say anything. He said it took some time to gain the courage to take action.
31 The answer was very telling as to how the events had taken their toll upon Mr Opie. I am satisfied that he was telling the truth when he gave that lengthy explanation.
32 The evidence of Dr Opie generally supported that of her husband. She said that she first saw the Brock Partners brochure and, within a few days, her husband showed her the coloured plans which he said Mr Cheney had given him to show the house he planned to build next door. Prior to the on-site meeting, she and her husband had discussed possible alterations if they purchased the house:
"We had been looking for a house for a while, and we had both agreed that probably the most important thing, certainly to me, and also to Richard, was that I wanted a kitchen that overlooked the family room and overlooked the back yard. What we had found in the present house that we were in, we had a very small kitchen/family room that looked over the backyard, and because we have small children, I tended to live in the kitchen. That really became the hub of our house. We spent a lot of time discussing how we would make the kitchen overlook a family room and overlook the backyard, so the children could play in the backyard and be supervised through the window. So that was the main focus of our discussion. We had touched on some of the upstairs rooms, maybe changing them around, but, mostly, we had agreed that we would keep the front formal rooms, the first four rooms, pretty much as they were, and that most of our alterations would be around the kitchen/billiard room area, looking at opening it up and making it into that big family hub."
33 Dr Opie explained that she wanted to have glass of some form along the northern wall. She was aware that the wall would be on the boundary immediately outside the kitchen, but when she first looked at the coloured plans she believed the height of the wall would be lower than the kitchen windows. From looking at the streetscape page of the coloured plans, she observed that the windows on the proposed house were lower than the windows on the existing house and that the height of the wall shown on the coloured plans was slightly lower than the front window. Those features led her to the belief that the wall would be lower than her windows. In their general discussion before visiting the site, she and Mr Opie agreed they wanted the height of the wall illustrated. Dr Opie wanted a clearer picture of how the walls would impinge on the house they were thinking of buying because it would affect her and how she saw the house. It could affect her thoughts as to whether they should proceed with a purchase.
34 Not surprisingly, Dr Opie said she and her husband had numerous discussions both before and after the on-site inspection. She said Mr Opie had a folder with papers in it and they sat on several occasions and went through different matters that needed to be discussed. Importantly, Dr Opie said that prior to the purchase of the house she had never seen any plans that looked like the development plans. She had only seen the coloured plans, the Brock Partners brochure and a small plan attached to the contract. Although Dr Opie may not have seen plans of the previous development on which Mr Hillan worked for Mr Opie, I am satisfied that if Mr Opie had been given a set of the development plans it is highly unlikely that Dr Opie would not have seen them.
35 As to the on-site meeting, Dr Opie said they spent twenty minutes to half an hour looking through the house and discussing upgrading and possible alterations with Mr Cheney. During the course of that discussion they talked about bringing additional light into the kitchen by putting in more glass in the northern wall, in the area of the pergola, and the possible attitude of the Heritage authorities to opening holes in that wall. She said they discussed the possibility of a set of French doors from the kitchen out onto the pergola and, later, discussed the natural progression to constructing an area from the pergola through to the bay window for use as one large entertaining area.
36 According to Dr Opie, they went into the backyard and, as she was moving toward a particular area of the backyard, her husband said "Don’t worry about that, come over here (indicating the area adjacent to the pergola and tennis court), this is important". She said that Mr Opie explained it was important as Mr Cheney was going to show them where the boundary would be. Her description was similar to that given by Mr Opie. She described Mr Cheney taking four or five long strides from the north-western corner of the house to indicate where the western return of the wall would be. She stood on the spot marked by Mr Cheney while he moved to a point near the tennis court fence and indicated, by pointing at the fence, where the return would take place. She was asked by her husband whether they could live with that and she replied in the affirmative.
37 Dr Opie said she recalled the pacing by Mr Cheney quite clearly. She said he was wearing shorts and work boots. His action in taking large steps was the same as her husband had previously done for her on other occasions because she sometimes finds it quite difficult to picture a particular length. In addition, after the western return in the wall had been indicated, Mr Cheney and her husband moved away and she was left standing like a human surveyor’s peg and feeling a little foolish.
38 Asked what her interest in the point of the western return was, Dr Opie said:
"I understood that it was important because, at that point, the building that Mr Cheney had planned would start encroaching back on our - it came back south and at that point, so it was very important to me that I knew where that corner was going to be, because it makes a difference to how close the wall was going to be to the particular part of our backyard where the pergola and our outdoor entertaining area was going to be."
39 Dr Opie said she did not recall Mr Cheney commencing at the western end of the tennis court and pacing out about 13 steps toward the east. As to whether it was an incident that did not occur or might have occurred and she had failed to recall it, Dr Opie said she thought it did not happen because she was with them all the time except for two or three minutes when they left her standing in the backyard. She was left alone for long enough to feel foolish, but probably only two minutes, and she then moved quite quickly to the tennis court. She thought that if the pacing of 13 steps had been done that quickly she would have noticed it.
40 Importantly, according to Dr Opie, she joined her husband and Mr Cheney who had walked toward the house and were talking about the wall to be erected along the boundary between the house and the tennis court. She said they were talking about the height of the wall. Mr Cheney directed their attention to the windows in the western wall of the existing house and said something about a special feature of the brickwork above the windows and how it was constructed. She said:
"He then said words to the effect of ‘the height of the wall [on the boundary] will not be higher than the top of the brick arches that he was indicating over the windows. He added ‘that’s about the height of the pergola’".
41 Dr Opie said the description given by Mr Cheney of the height of the wall was about what she had been expecting from her previous estimation based on the coloured plans. She denied that Mr Cheney said the wall would run at the same height as the balustrade on the balcony and step down about a metre near the bay window. She was certain that if he had said that she would have remembered it because "my mind’s eye picture of it is of it being so much lower". She remembered relying on Mr Cheney’s indication of the height to confirm her thoughts. She did not recall any reference to the old shed.
42 Dr Opie then described how Mr Cheney indicated the approximate position of the new boundary and gave them a description of the three sections of the proposed new dwelling. During those discussions, Mr Cheney talked about the problems he was having because of the heritage listing of the existing house, but Dr Opie did not pay a lot of attention as the conversation was mainly between Mr Opie and Mr Cheney.
43 As to the change in the position of the western return relative to the western end of the house and how it affects her feeling or thinking about what may or may not be done with the rear area, Dr Opie said:
"Yes, it vastly effects what I imagine that we can do with that area, because the wall comes in so much closer and makes such a sharp corner that it only makes a small walkway around to the pergola area, instead of what we had thought, which was a big entertaining area directly west of our house, and then moving around into the pergola area."
44 In the context of the return and wall as being constructed and its effect, she then said:
"Yes, I think it does, because, to me, the most important room, for me, is the kitchen/family room. I have always wanted it to be light and pleasant to be in, and also somewhere where we can have lots of glass, so that I can easily stay where I am working in the kitchen and be able to see what the children are doing outside. For me, with the big wall there, the kitchen is quite dark, so, instead of being able to, for instance, have a coffee with my friends, which is quite important to me, and be able to have it in pleasant surroundings, I don’t do that any more, because it’s dingy in there, so, yes, it has affected how I use the kitchen now, and also how I would look at expanding the kitchen and renovating it."
45 Dr Opie agreed that from the outset she knew a wall would be positioned immediately outside the kitchen window and one of her primary objectives from the beginning was to open up the kitchen so it had more light. She was aware that the wall would reduce the light. She gave the following explanation of her feelings about the additional height above that which she anticipated:
"At the height that I anticipated it, I was well aware that I would have windows looking onto a wall, but at the height that they were, it would be - to my mind it would have the aesthetics of a courtyard wall. It would be a barrier, but it would be like a courtyard wall, and it would, if it was rendered and painted, actually make quite a cosy outdoor area. At the height that it is now, when I walk out there, it’s like a squash court. There’s nothing that’s - the height doesn’t make it like a courtyard; it makes it like having a great big building next door, and also the height that I thought it was going to be, a lot more light falls in the kitchen over the day, whereas the higher it goes the less light falls over the day."
46 As to the effect of the extra height from the western return west to the rear boundary, Dr Opie said:
"That makes a really big difference to my little family, because that’s where our clothes line is, and that’s the only area at the moment that’s grass so that’s where our children play, and it’s pretty much in shadow the whole day, so to me that makes a big difference for now, and in the future that makes a big difference as to what we would plan to do with that section. We were going to put a pool there, but it would always be shaded, and that extra height makes a big difference, it casts a big shadow, and it sort of looms over our grassed area."
47 After the trial had proceeded for some days and the plaintiffs appeared to have led most, if not all, of their evidence, the plaintiffs sought leave to amend the statement of claim. Leave was granted. This resulted in the plaintiffs being recalled to give additional evidence about the effects of certain features of the construction about which they had, until recently, been unaware.
48 On the basis that the house might be constructed two to three metres higher than shown in the coloured plans, both plaintiffs were concerned about the appearance from the street and the lack of balance with other residences, as well as the physical height of the dwelling under construction which would overshadow or dominate their residence. Both were concerned about the effect on the availability of sunlight to the balcony which is situated on their upper level in the north-eastern corner. Dr Opie agreed it would be much better if it was constructed at the same height as their residence. Mr Opie, however, gave the following evidence:
"Q.    Do you have any difficulty if the house front is built at virtually the same height as yours.
A.    In terms of being reasonable, no, but, in terms of, I guess, the preservation of a heritage building and I guess a factor that it is there for today and it will be there for a very, very long time from my children’s point of view and the overall streetscape and preservation of a heritage building I do.
Q.    Why would there be a problem in those areas if it is virtually the same height at the front as your’s.
A.    For the simple reason if you go down the road to the Harrison residence, next to the - I don’t know the numbers off the top of my head, next to the Duggans’ residence, the Harrisons’ residence has been set down below the Duggans’ residence, which preserves and, I guess, highlights the heritage building and doesn’t dominate over the top of it. So, the presence of that building will always be preserved and kept for today and ever, because the reality is that, like the Harrisons’ residence, the new proposed residence will never be demolished, because of the value of the building that goes on the land."
49 The plaintiffs also expressed similar concerns about the effect of the wall as constructed at the western end which is at a height of 5.8 metres. They had planned to follow the line of 3.8 metres across the western boundary and return around the southern boundary at the same height. Understandably, they would not consider constructing those walls at 5.8 metres. Mr Opie said they had planned either to alter or to demolish and rebuild the garage to achieve the flow-on effect from a wall of 3.8 metres.
50 Both plaintiffs agreed that the additional height has created a problem within the kitchen because of the lack of light and the domination of the wall. What they envisaged as a pleasant courtyard is now a cold, dark and unfriendly environment.
51 Windows overlooking their premises are also a matter of concern because of the privacy the plaintiffs seek within their rear yard. Although some invasion of privacy would have occurred if built to the coloured plans, they expressed concern that if the windows proceed as now planned in the southern wall of the bedrooms over the garage, and the wall is at a height of 3.8 metres, there will be a much greater lack of privacy. In that context, Mr Opie spoke of the effect of a box window apparently intended for the western wall of the upper front section of the development near the south-western corner. That window would overlook the entire rear and section of the northern side of the plaintiff’s property.
52 As mentioned, the on-site meeting is the second of the critical stages in the plaintiffs’ case concerning representations made by Mr Cheney as to the height of the southern wall of the proposed development. Those representations, and in particular the provision of the coloured plans, were followed by negotiations over the final terms of the contract for the purchase of the existing house property.   In cross-examination Mr Opie agreed that he met with the defendant and Mr Cheney at the defendant’s office where a price of $630 000.00 was agreed. He saw a copy of a small floor plan which was virtually the same as the plan that was later annexed to the contract ("the contract plan"). While at the defendant’s office they had a brief discussion about attempting to identify the boundary alignments on the small plan, but gave up and put it in the "too hard basket" as they became confused. Mr Opie said his recollection of the discussions was "not quite as intense" as reflected in the affidavit of Ms Collum. As they could not accurately depict the boundary it was left that Ms Collum would prepare a plan.
53 On 3 June 1998 the defendant sent to the plaintiffs by facsimile a draft of Special Conditions for inclusion in the contract, together with a copy of the contract plan which showed the proposed land division to realign the boundary between the house property and the tennis court. Mr Opie believed that plan indicated the distance between the western wall of the existing house and the western return was in excess of the 4 - 5 metres which Mr Cheney paced out on 7 April 1998.
54 On 9 June 1998 Mr Opie attended at the defendant’s office to sign the contract for the purchase of the existing house property. According to Mr Opie, prior to signing the contract the defendant asked a number of questions of Mr Opie and Mr Cheney and referred to the Special Conditions. The contract identified Ms Collum as the vendor and Mr Opie and/or his nominee or nominees as purchaser. The contract was signed by Mr Opie and Ms Collum.
55 The relevant Special Conditions are as follows:
"SPECIAL CONDITIONS

This agreement is subject to the deposit in the Lands Titles Office by the Registrar-General pursuant to the Real Property Act 1886 of a plan of land division in accordance with the attached plan on or before the 20th day of November 1998 or such other date as the Vendor and Purchaser may agree in writing.
The Vendor must use all reasonable endeavours, at the Vendor’s cost in all things, to satisfy Special Condition 1.
If Special Condition 1 is not fulfilled:
3.1 this agreement terminates immediately without the need for notice by either party but without prejudice to the rights or remedies of either party which have arisen prior to the date of termination; and
3.2 all money paid by the Purchaser pursuant to this agreement must be refunded to the Purchaser as soon as is reasonably practicable.
The Purchaser acknowledges and agrees that at settlement no separate Certificate of title for the Land may have issued or be available for production to the Purchaser but the Purchaser is not entitled to refuse to settle on that account.
5.1    The Purchaser acknowledges that it is the Vendor’s intention to construct a two-storey dwelling (‘the proposed development’) on the balance of land in Certificate of Title Volume 5465 Folio 145 (‘the balance of the land’) and that the Vendor has provided to the Purchaser a plan of the proposed development (‘the house plan’).
5.2     Subject to sub-clause 5.3, the Purchaser agrees to give any consents which may be required for the Vendor to proceed with the proposed development and agrees to make no objection to the proposed development or any change to the house plan.
5.3     The Vendor agrees that the aspect and position of the southern side of the proposed development must not vary significantly from those depicted in the house plan as provided to the Purchaser (and, in particular, that no additional windows may be placed in the southern wall of the proposed development) unless the Vendor first obtains the Purchaser’s approval for such variation and the Purchaser must not withhold such approval unless the Purchaser reasonably determines that the variation affects the Purchaser’s enjoyment of the land.
5.4     The Vendor agrees to consult and agree with the Purchaser in relation to:-

the external finish of that portion of the southern wall of the proposed development which is located on the boundary between the Land and the balance of the land; and
the dividing fence between the Land and the balance of the land
and to meet the cost of both.

The Purchaser agrees to permit the Vendor to erect a temporary chain-mesh perimeter fence on the Land and to maintain the fence for a period of 8 months after the date of commencement of construction of the proposed development.
….."
56 Mr Opie said that on 10 June 1998 the defendant noted that the first Special Condition referred to an attached Plan of Land Division and the meeting continued as follows:
"Ms Collum then addressed Clause 5.1. She asked whether I had received a copy of the plans of the Proposed Development. I said ‘Yes. David has given us a copy of the coloured plans.’ Mr Cheney said ‘Yes, that’s right’. Ms Collum then asked whether my wife and I were happy with the plans. I said we were. Ms Collum then drew attention to Clause 5.3 and the words in brackets. She noted that the plans already indicated that windows would be placed in the southern wall of the development. After a brief discussion Clause 5.3 was amended and initialled so as to provide that "no additional" windows would be placed in the southern wall of the Proposed Development without prior approval of my wife and me. Ms Collum and I then signed the contract and initialled the various alterations."
57 Differences between the parties began to emerge in November 1998. Mr Opie said he became aware of site works on the tennis court which suggested to him that the western return would be little more than a metre west of the western wall of the existing house. That positioning was in contrast to the 4 - 5 metres indicated by Mr Cheney when he paced out the distance during the site meeting of 7 April 1998 and to the distance indicated in the contract plan. He spoke with Mr Cheney about the matter, who responded that the contract plan was only a rough plan. Mr Cheney said the draftsman had not been able to get to the back of the house property in order to accurately plot it and the house position was therefore only approximate. He said his draftsman must have made a mistake and he apologised for that mistake. He offered to compensate by gardening or some other works once the development was completed.
58 Mr Opie said he met with an architect, Mr Danvers, on 16 November 1998, who obtained a copy of the floor plan provided and Adelaide City Council and forwarded it to him. He received that copy on 16 November 1998. He spoke again with Mr Cheney and said that he and his wife felt compromised. Mr Cheney responded that they had purchased the house well, but he would speak to Ms Collum and get back to them. The following day Mr Cheney repeated his position that the contract plan was never intended to plot the exact position of the existing house and was only to show the proposed line of division. When Mr Opie said the contract plan matched the pacing that had been done by Mr Cheney on 7 April, Mr Cheney said he had not paced out any distances on site and was not interested in talking about compromises.
59 Correspondence between solicitors followed concerning the positioning of the western return and other issues of dispute that arose between the parties. Settlement occurred in accordance with the contract on 23 November 1998.
60 Mr Opie said that in about mid April 1999, construction of the southern wall commenced. He and his wife became concerned when the height of the wall appeared to be climbing to a point in excess of that depicted on the coloured plans and beyond the height Mr Cheney had represented to them at the site meeting of 7 April 1998. The plaintiffs’ solicitor obtained a copy of plans provided to the Adelaide City Council ("the latest plans"). The plaintiffs contend the latest plans depict a wall on the southern boundary of the development which is very different from that depicted in the coloured plans. Mr Opie said that at no time did Mr Cheney or Ms Collum speak to either him or his wife about any change in the height of the wall as required by cl 5.3 of the contract.
61 The plaintiffs’ solicitor wrote to the defendants’ solicitor on 5 May 1999 noting their objection and seeking certain undertakings. In referring to a breach of cl 5.3, the letter stated:
"The house plan provided to our clients clearly shows a wall along the relevant boundary which is of a constant height along its entire length and which height appears from the plan to be approximately 2-2.5 metres."
62 The allegation as to the height of 2-2.5 metres is in conflict with the plaintiffs’ case that the coloured plans indicate a wall of approximately 3.8 metres in height. Mr Opie said he did not have an understanding as at 5 May 1999 of a height in metres and when he saw the letter he did not absorb the physical mention of the height. He said the purpose of the letter was to say "look, this wall is going up beyond what you told us". From Mr Opie’s perspective, after all the other problems they had experienced he wanted a letter to be sent registering the fact that the wall was higher than had been represented.
63 The defendant sought to use the reference to the height of 2-2.5 metres and the absence of any reference to the representation based on the height of the pergola as a basis for suggesting that Mr Opie’s evidence was implausible. I did not draw that conclusion from that matter or any of the other matters relied upon by the defendant. I accept Mr Opie’s evidence that he did not give specific instructions concerning the height and left the wording of the letter to his solicitors.
64 Further correspondence followed which is canvassed later in these reasons.
65 Two additional issues arising out of the cross-examination of Mr Opie require particular consideration. The first concerned the distance from the western wall of the house to the western return in the southern wall of the development. As mentioned, the plaintiffs gave evidence that Mr Cheney stepped out about four or five paces west from the western wall to indicate the alignment of the western return. As constructed it is 1.1 metres.
66 The coloured plans record the distance from the western boundary east along the southern wall to the western return in that wall as 13 metres. The plan seen by Mr Opie on 27 April 1998 and the contract plan both record that distance as 14.72 metres. Mr Opie said he did not notice the discrepancy until preparing the matter for the present hearing. In addition, he said he was not concentrating upon the distance of the western return from the western boundary but, rather, upon the demonstration given by Mr Cheney during the on-site meeting indicating the distance of the return from the back of the house. He gave the following evidence:
"Q.    Your career as a land agent, in 15 years, are you not used to stepping out boundaries.
A.    Well, when it’s done for you by someone who has been in the building game for many years and they are very up-front and prepared to step it out for you and show you and do it in a very confident fashion, and with the difficulty of getting to the back of the block and the fact that we were on site and we weren’t allowed to show any real degree of interest in the property because of the tenants, we took what David to do as being correct. We had no reason to doubt him."
67 In addition, as previously mentioned Mr Opie also said he gained the impression from the contract plan that the distance from the house to the western return was greater than the distance paced out by Mr Cheney during the course of the on-site meeting. In this regard he was probably correct and was, understandably, misled by the contract plan. The western wall of the plaintiffs’ house is incorrectly drawn on the contract plan as between 6.6 and 6.7 metres east of the western return. Mr Hillan demonstrated how the error occurred. He plotted a comparison between the position of the plaintiffs’ house relative to the house under construction as shown on the contract plan and its true position. That comparison shows that the positioning of the plaintiffs’ residence on the contract plan was approximately correct from the front or eastern end west for part of the length of the northern wall to a bay window in that wall. However, the length of the section west from the bay window to the north-western corner of the house was substantially misrepresented. As drawn on the contract plan, that section was considerably shorter than its true length. This error tends to fit with the evidence given by Mr Opie that, in November 1998, Mr Cheney apologised for the error and said it occurred because his draftsman had been unable to gain access to the rear of the plaintiffs’ premises in order to accurately plot that section of the home relative to the proposed construction.
68 If Mr Opie had taken the precaution of measuring the distances of 13 or 14.72 metres from the western boundary, it would have been immediately apparent that the return was closer than the point he said was indicated by Mr Cheney. Similarly, a careful reading of the coloured and contract plans would have indicated to Mr Opie that, according to the plans, the western return was 1.72 metres closer to the house than stated in the coloured plans. To that extent Mr Opie was not as careful as he could have been. For reasons later discussed, however, in my opinion such a failure does not detract from the plaintiffs’ claim.
69 The second additional issue arising from cross-examination concerns Mr Opie’s knowledge as to which plan or plans were provided to the Adelaide City Council for the purposes of obtaining approval for the development on the tennis court. Mr Opie consistently maintained that he understood from Mr Cheney that the coloured plans were provided to the Council and that he was unaware of any other plans. In a letter of 18 November 1998 from the plaintiffs’ solicitors to the defendant, however, it was stated that the solicitors understood that the contract plan was a plan submitted to the Council for the purposes of obtaining development approval. Mr Opie said he did not convey that understanding to his solicitors. He was asked:
"Q.    As at 18 November 1998 did you understand that the plan attached to the contract was a plan submitted to the City of Adelaide for the purpose of obtaining development approval of the land retained by Mr Cheney?
A.     No, I didn’t. It was a plan I assume that was attached to the contract, when we signed the contract.
Q.     You may not have understood the question.
A.     Well, I’m not aware that it was a plan used for, as you said, the development application. It was the plan that we signed when we signed the contract with Stella and David.
Q.     Are you saying that as at 18 November you did not understand that that plan, which was attached to the contract you signed, was a plan which had been submitted to the Council for approval?
A.     No.
Q.     You did not understand that to be the case?
A.     No."
70 The letter in which reference was made to that understanding was dated 18 November 1998. Two days earlier on 16 November 1998, Mr Opie had consulted Mr Danvers about his concerns. In his presence Mr Danvers spoke with someone at the Adelaide City Council in order to obtain a plan showing the common boundary. Later that day Mr Danvers sent to Mr Opie by facsimile a copy of a plan which he described as "the cellar plan faxed from Tony Kelly of Adelaide City Council". That plan was, in its essential respects, identical to the contract plan. Mr Opie acknowledged, therefore, that on 16 November he understood from Mr Danvers’ note that the Council had been given, as part of the application for approval, the plan faxed to him by Mr Danvers which was, in essence, the contract plan. In those circumstances he was asked why he had previously said in evidence that two days later he was unaware that the contract plan was the plan submitted to the Council for approval.
71 Mr Opie’s knowledge or understanding in November 1998, gained as a consequence of the correspondence from Mr Danvers, does not directly assist in determining his knowledge or understanding during the critical period of March to June 1998. Counsel for the plaintiff was, however, legitimately attacking Mr Opie’s credit. It is unnecessary to set out the rather lengthy passages of cross-examination and questioning by me. The answers were confusing. I gained the clear impression that Mr Opie was worried about the implications in questions which he did not fully understand. On one view, a conclusion could be drawn that Mr Opie was prevaricating when faced with the inconsistency, but I did not draw that conclusion. Having observed him during the whole of his evidence and that questioning in particular, and upon further careful consideration of the questions and his answers, I am satisfied that Mr Opie was not being dishonest and was not prevaricating. He was stubbornly concentrating upon the issues he had fixed in his mind; in particular upon differences between the floor plan attached to the coloured plans and the contract plan and his belief that the contract plan emanated from drawings done prior to the coloured plans. He did not properly appreciate the import of the questions concerning the apparent conflict between his evidence concerning his understanding and the information he received from Mr Danvers.
72 In arriving at my conclusion concerning this particular section of Mr Opie’s evidence, I have also borne in mind my assessment of him throughout the remainder of his evidence. On a number of occasions his answers were not entirely appropriate for the questions. At times he was also concerned to address the implications of a line of questioning rather than the individual questions. I formed the clear view, however, that these failings were not due to any dishonesty or lack of truthfulness. They occurred because of Mr Opie’s tendency to a lack of clear thinking about the particular questions and because of his preoccupation with issues that were uppermost in his mind.
73 As mentioned, the plaintiffs called Michael Hillan, an experienced architect and licensed builder. He was an impressive witness. Mr Hillan examined the coloured plans with a view to determining whether they were drawn to scale. He said the floor plan section of the coloured plans was clearly drawn to a scale of 1:100. Although no measurements were inserted on the northern, southern or western elevations, using the dimensions of the block and enlarging the southern elevation sheet, he was able to satisfy himself that those elevations were drawn to scale. By way of cross-checking, he folded the drawings and overlayed the elevations to ascertain that they matched almost precisely. He did this across a number of points with different folds. In this way he was able to cross-check the southern, northern and western elevations and found them to be consistent with each other. He regarded that consistency as demonstrating that they were all drawn to the same scale. The sketches in sheets 2 and 3 that show the eastern elevation and the northern elevation of the eastern two-storey section both show the third dimension and, according to industry practice, would never be intended to be to scale.
74 Mr Hillan was initially of the view that the northern, southern and western elevations had been reduced in size for the purposes of the coloured plans. During cross-examination, however, he was shown what were obviously an earlier set of drawings on transparent paper and from which the coloured plans had been photocopied on to hard paper without any reduction in size. He acknowledged, therefore, that his assumption as to reduction in size was wrong. On the basis that no reduction had occurred, he was able to calculate that the northern, southern and western elevations of the coloured plans were drawn to a scale of approximately 1:139. It is an odd scale not commonly used in the industry.
75 Although it was never originally suggested directly to Mr Hillan that he was in error in arriving at the view that those elevations of the coloured plans were drawn to a common scale, there was considerable cross-examination about differences when the elevations were laid one on top of the other. It was a clear tenor of the cross-examination that Mr Hillan might have been in error because of the differences. In the opinion of Mr Hillan, however, the differences were insignificant and within the tolerances that he would allow.
76 Mr Hillan compared the positioning of the existing house on the contract plan relative to the new construction and, in particular, the western return of the wall with the true positioning by use of a survey plan. The western return has been built approximately 5.5 metres closer to the north-western corner of the house than shown on the contract plan. As mentioned previously, this was brought about by an inaccurate representation as to the size of the existing house, in particular as to the western section of the northern wall of the house from the bay window west toward the rear boundary. Mr Hillan said none of the drawings provided to the Adelaide City Council had correctly positioned the existing residence. The distance on the development plans was 6.6-6.7 metres compared with the 1.1 metres as constructed. In the context of the size of the wall as being constructed, the 1.1 metres from the north-western corner of the house to the western return results in what might be fairly described as a narrow area over which the wall looms.
77 As to the height of the wall in the middle section adjacent to the kitchen, Mr Hillan originally expressed the view that the coloured plans depicted a height of 3.8 metres. After considering the drawings on the transparencies and reassessing the scale, he said a height of approximately 3.6 metres was depicted.
78 Working from the detailed development plans lodged with the Adelaide City Council, Mr Hillan said the initial height of the wall at its eastern end was to be 4.4 metres and, at about 8 metres to the west of that eastern end, it was to rise to a height of about 5 metres. It then continued west at an average height of about 4.9 metres to the western boundary (depending on the rising ground level). A later plan disclosed, however, that while it was to commence at 4.4 metres at its eastern end, it was shown as rising to about 5.1 metres at a point approximately 6 metres to the west. It was drawn as continuing for approximately 18 metres to the west at an average height of 4.9 metres before rising to a height of 5.9 metres and continuing at that height for about 10 metres to the western boundary. When Mr Hillan visited the site on 14 July 1999, he found that the wall as built adjacent to the kitchen window was 5.2 metres and not 4.9 metres. He measured from the top of wall to ground level immediately adjacent to the kitchen window.
79 Mr Hillan also compared the distance separating the southern wall of the new house and the northern wall of the existing house as depicted on the development plan with the distance as constructed. He found that it was depicted on the plan as 2.3 metres, but is only 1.9 metres as built.
80 In the opinion of Mr Hillan, the intended overall height of the house under construction has also altered. As depicted in the coloured plans, it appeared to Mr Hillan to be approximately 9.6 metres, but is shown as approximately 11.75 metres in the development plans. Subsequently, Mr Hillan inspected further drawings providing details of proposed ceiling heights. In his opinion those drawings demonstrated that the height of the development when completed will exceed the height he originally calculated from the plans. If a truss roof is used an additional metre might be added, but if steel beams are used he would expect the height to increase by approximately 300 mm.
81 In order to assist the Court in understanding the impact of the additional height of both the wall and the front section of the premises, Mr Hillan prepared plans depicting the angle of sunlight at noon on 21 June (the winter solstice). He relied upon a publication called "Sunshine and Shade in Australasia" produced by the then Department of Housing and Construction which, in Mr Hillan’s experience, is generally used by architects and planners to determine what shadow will be cast by a proposed structure. In his opinion, if the wall was 3.8 metres in height the shadow cast would have a negligible impact on the kitchen window at noon on any day of the year. At the winter solstice, the shadow cast would affect less than ten per cent of the area of the window and it would have this effect for about one or two weeks in the middle of the year.
82 If the wall height was increased to 4.9 metres, the window would be in approximately 80 per cent shadow at 12 noon on the winter solstice. In addition, shadow would be cast on the kitchen window every day for about a ten week period, being five weeks either side of the winter solstice. Either side of 12 noon the shadow lengthens and the problem is accentuated. As a consequence, at a height of 4.9 metres, very little direct sunlight would fall on the kitchen window for significant portions of the middle of the day for a period from about late May to mid July.
83 As built, the finished height of the wall is 5.2 metres. Mr Hillan plotted the angle of sunlight at 12 noon on the winter solstice which, predictably, demonstrated that the shadow length increased. By the time of the winter solstice, one hundred per cent of the kitchen window will be in shadow for two weeks either side of the winter solstice. Similarly, it is clear that the problem will be accentuated either side of twelve noon.
84 The plans drawn by Mr Hillan are very helpful. They provide a clear demonstration of the very significant impact caused by the additional heights on the sunlight available to the kitchen window.
85 Similarly, the increased height of the front two-storey section will affect the amount of sunlight reaching the upper verandah of the plaintiffs’ residence on the northern side at noon during the winter. The impact is not as significant as the impact on the kitchen. Unlike the kitchen which will not gain direct sunlight during the mornings and in the afternoons, the verandah faces east and will be flooded with direct sunlight in the mornings. The amount of direct sunlight will vary in the afternoon depending on the time of year. The impact will be less in the summer because of the sun’s higher position, i.e. when it is not as far to the north.
86 Mr Hillan was asked about the reference in Mr Cheney’s affidavit to "butter drawings", an expression Mr Cheney used to describe the coloured plans. Mr Hillan said it was not an expression used within the industry and he was not familiar with it. Butter paper, a very cheap and thin paper, is a good medium on which to produce quick sketches. Erasing cannot be done and, if a change is needed, another piece of paper is put on top to trace what has been drawn on the butter paper.
87 A sketch was produced by the defendant at the request of counsel for the plaintiff which Mr Hillan described as a "conceptual sketch". He regarded it as the type of sketch that could be drawn for the architect’s own use before producing a drawing to take to the client. It is the type that might be drawn when sitting in a restaurant discussing a proposal with a client.
88 By way of comparison, however, in Mr Hillan’s view the coloured plans can properly be described as "design drawings" which more completely describe the concept and act like a suite of drawings. Collectively the coloured plans describe what is intended. It is the type of document that could be used to convey to a client what is being proposed for the client’s house. Mr Hillan was not surprised that the coloured plans had been annexed to and formed part of the original submission to the Adelaide City Council for development approval. In his opinion, while the absence of an identified scale could well result in planning staff requesting that the drawings be redone in a scale of 1:100, the coloured plans at an appropriate scale would have been acceptable.
89 Mr Hillan made the general observation that those who draw all the time and regularly read drawings cannot help but think to scale. Even the sketch on a serviette at a restaurant of what the front of a house could look like would almost be to scale in the sense of proportion as between the vertical and the horizontal. In his view, in the industry it is taken as read that something is to scale unless the person producing the drawing specifically draws attention to the absence of scale. An obvious example is provided on one sheet of the development plans upon which a specific notation has been made that the width of an adjacent lane is not to scale.
90 Mr Hillan was cross-examined at some length about the adequacy of the coloured plans for the purposes of a development application. He agreed he would not put the coloured plans forward with a development application because of the odd scale and missing details. He also agreed that it is common for developers to make preliminary enquiries of Council staff as to what may or may not be acceptable and, for that purpose, to show the staff plans of some type. If a clean passage was foreseen, the finished drawings might be used but, if a period of negotiation is foreseen, some intermediate or preliminary drawings might be provided. His attention was drawn to the various requirements for development approvals and the existence of the coloured plans on the Council file indicating they had been used as part of a preliminary exercise with Council staff. As mentioned earlier, however, the coloured plans were also used as part of the application for approval.
91 As to the streetscape, it was suggested that the drawing was certainly not to scale. Mr Hillan acknowledged that he did not have the dimensions of the neighbouring properties, but he thought that the Opie residence and the house immediately to the north of the defendant’s property appeared to be drawn to a scale. He could not say they were drawn to the same scale. Similarly, he could not say they were drawn to the same scale as the proposed residence and the proposed residence looked smaller to him than it should be. The individual elements appeared to be in proportion to each other, but when the houses were put together something appeared to be amiss. He would expect, according to industry practice, that a drawing such as this would display some proportion to reality.
92 Mr Hillan’s attention was drawn to the affidavit of Rodney Roach in which Mr Roach describes the second sheet of the coloured plans as a drawing that has been "roughly executed". In the opinion of Mr Hillan, it is not a rough drawing and shows quite a lot of detail. He agreed, however, that heights and dimensions cannot be discerned from that particular sheet.
93 During his examination and initial cross-examination, Mr Hillan was unaware of evidence discussed later in these reasons given by a graphic artist, Mr Opala. In subsequent cross-examination the effect of the evidence of Mr Opala was put to Mr Hillan. He accepted that Mr Opala could have drawn the elevation showing the third dimensions from a sketch without knowing anything of the height or the floor plans, but as to the suggestion that Mr Opala did not use the floor plans or the measurements from the floor plans in drawing the northern and southern elevations, Mr Hillan said:
"If that is to be true then, by coincidence, he has managed to depict, on the southern elevation, just referring to the southern elevation, to start with, he has managed to depict the overall length of the block, from east to west, but he has managed to be able to depict the house in exactly the correct proportion. He has managed to depict the western return in exactly the correct proportion. He has been able to depict the space between the double storey portion on the western and the double storey portion to the east correctly, in the exact proportion. All by coincidence, without referring to the floor plan. And, I am sorry, I couldn’t accept that. And then you could probably go to the - or you can go to the west elevation, that is a good example. If he hasn’t referred to the floor plan, he has drawn the west elevation in exactly the right proportion for its width relative to the south and the north elevation and according to the plan, without referring to the plan.
Q.     It is one thing to draw it in proportion, it is another thing to say that it is intended to be of a certain height, isn’t it. They are not the same.
A.     If he has got all of his horizontal dimensions correct, it is not unreasonable to expect the vertical dimension to be correct, so it is in proportion, I would have thought."
94 Mr Hillan properly conceded that if the author of the drawings had come to him and said he had prepared an artist’s impression off the top of his head without reference to measurements, Mr Hillan would not have used the coloured plans in the way that he did. He would still have expected, however, that they would be generally in proportion.
95 Following the previously mentioned amendments to the statement of claim, Mr Hillan was recalled on Monday, 2 August 1999. He said that on the previous Thursday evening, in the presence of solicitors for each party and Mr Cheney, he was shown five drawings that he had previously seen together with an additional single drawing ("the working drawing") which is a derivation of one of the drawings filed with the Adelaide City Council. He was given to understand that the working drawing is a working copy that is being used on site. In his view, the working drawing shows that the house is not being built in accordance with the other plans he had previously seen. In addition, Mr Hillan undertook a further site inspection on the following day.
96 Mr Hillan repeated his previous evidence that if the height of the southern wall adjacent to the kitchen was reduced to 3.8 metres, the ceiling in the meals and living room could be constructed at a height of approximately 3.45 metres (11 feet, 4 inches). By increasing the pitch of the roof from one degree to five degrees, sufficient room would be created in the ceiling space to accommodate insulation, plumbing and air-conditioning. The change in the pitch of the roof would result in less risk of leakage and the use of cheaper material. While acknowledging that the adequacy of a ceiling at the height of 3.45 metres is a subjective matter, Mr Hillan pointed out the minimum standard is 2.5 metres and ceilings of the height of 3.45 metres are higher than normal, but not unusual in this form of house.
97 Included in the numerous drawings prepared by Mr Hillan for the assistance of the court, was a drawing of the longitudinal section not shown on any of the other drawings or plans. This section ran east/west taking a slice through the middle of the premises looking in the same direction as if the southern elevation was being viewed. This drawing demonstrates that from the entry into the premises at the eastern end, the floor slab, which has already been constructed, steps up on three occasions. The final step is to the meals and living room area from where it remains a constant height to the western boundary. None of the plans or drawings seen by Mr Hillan demonstrate these steps.
98 Mr Hillan addressed the section of the southern wall immediately adjacent to the two-storey front portion of the house under construction. Because of the slope in the ground level, if the wall was 3.8 metres immediately adjacent to the kitchen windows of the Opie residence, and it was maintained at a constant height, it would be in the vicinity of four metres high along the eastern section adjacent to the two-storey front portion of the residence under construction. If, in that area, it was stepped down to a height of between 3.8 and 3.9 metres, it would result in ceilings in the rooms immediately on the northern side in the house under construction of between 3.25 and 3.6 metres. Ultimately, however, Mr Hillan made the observation that reducing height in that fashion would expose a box gutter which might not be desirable. From that point of view it might be preferable not to step the wall down, but to maintain a constant level which, in effect, would mean a slight increase in the height to the east because the ground level drops away.
99 This longitudinal section drawing also provided a pictorial view of the height of the house under construction. The height as depicted in the coloured drawings was approximately 9.6 metres. In the development plans provided to Council it was approximately 11.75 metres. From documents supplied by the defendant in the process of discovery, the frame information for the roof suggests that the final height will be 11.9 metres. If the house was to be constructed at about the same height as the Opie house, it would be constructed in accordance with the development plans submitted to the Adelaide City Council. In the opinion of Mr Hillan, the difference could be accommodated in the construction of the roof or in other ways without unduly compromising the internal ceiling heights. If it was constructed as shown in the coloured plans, the downstairs study could have a ceiling height of 3.6 metres (12 feet) and each upstairs room a ceiling height of 3.3 metres (11 feet). Importantly, if the house was constructed in accordance with the coloured plans, at the front its total height would be approximately two metres lower than the Opie residence. In the view of Mr Hillan, that lower height would make a very significant difference to the light on the balcony to the point where it would almost be the difference between some light and no light.
100 The same section drawing provided a view of the rear garage which, as constructed, has a ceiling height of 4.4 metres (14 feet, 5 inches). Mr Hillan gave the rather obvious evidence that garages tend not to be built at such a height. The large concrete slab that forms the ceiling of the garage and the base for the upper storey to be constructed over the northern half of the garage has already been put in place. It has been laid at a height level with the western section of the southern wall as already constructed. As mentioned, Mr Hillan said the southern wall in that area has been constructed at approximately 4.9 metres and has provision for the addition of another metre in height.
101 Mr Hillan prepared a further drawing demonstrating what could be achieved if the height of the wall was 3.8 metres. It would provide for a garage with a ceiling of 3.1 metres (10 feet). If the upper portion on the northern side was constructed as depicted in the coloured drawings to a total height of 7.3 metres as opposed to the 8.8 metres shown on the development plans, the two bedrooms would have ceiling heights of 3.3 metres (11 feet).
102 As the southern wall is the wall of the garage, it could not be lowered to 3.8 metres without lowering at least the southern half of the slab. Mr Hillan said removing the slab and rebuilding it at a lower level would involve a substantial operation. He described his limited experience of a similar but smaller operation and explained how the slab could be removed and rebuilt over the defendant’s garage. He had not made any calculations other than mentally while he was discussing the matter with others when he had come to a figure of between $20 000 and $30 000. He accepted, however, that he might be in error.
103 Mr Hillan was asked to consider the possibility of removing only the southern half of the slab. He said there is a difference in level between the northern and southern halves of the slab. It would be easier and cheaper to remove the southern half and rebuild it at the lower level. The southern half is free from impediments such as arches and the staircase. Generally speaking, he would expect the cost of removing the southern half to be about half of the cost of removing the entire slab, although some of the costs would still be incurred as there are economies of scale.
104 During cross-examination it emerged that Mr Hillan had not given careful consideration to the engineering plans relevant to removal of the slab which demonstrate that although the task would not be impossible, it was more difficult than he originally anticipated. It was clear that Mr Hillan had addressed the primary question as to whether it was possible, but he had been unable to properly consider the extent of the task. In addition, Mr Hillan was asked to comment on statements made by engineers in letters tendered for the limited purpose of avoiding reading the letters onto the transcript as part of the questions. Mr Hillan accepted some of the propositions, but qualified others. It is unnecessary to recite all of the relevant aspects upon which he commented. It is sufficient to observe that removing the slab or half of it would be a very substantial and expensive task.
105 It also emerged during cross-examination that Mr Hillan was unable to give any realistic estimate as to the likely cost of removing the slab or half of it and reconstructing it at a lower level. In the period in which he had been asked to think about this particular problem, Mr Hillan had spent many hours working on other aspects on behalf of the plaintiffs, but no time on the question of costs other than attempting to mentally add some numbers "just as a sort of matter of interest". Ultimately Mr Hillan properly declined to give an estimate of the likely range of cost.
106 The plaintiffs’ case for equitable relief is based in contract and, in particular, upon Special Condition 5.3. They say the "house plan as provided to the purchaser" referred to in Clause 5.3 is a reference to the coloured plans and that the relevant dimensions can be discerned with sufficient certainty from those plans. The primary aspects of the plaintiffs’ claims concern the height of the southern wall and the overall height of the development at the front eastern end. In addition, the plaintiffs say that other breaches of contract have occurred which are discussed later in these reasons. Although the plaintiffs said Mr Cheney misrepresented the position of the western return in the southern wall, they do not seek an equitable remedy for that misrepresentation.
The Defendant’s Case
107 Mr Cheney said he met with Mr Opie at George Street, Norwood on two occasions. The first was on about 1 April 1998 when he said Mr Opie again told him that he had a client who was interested in purchasing the existing house. Mr Cheney maintained he was not then aware that it was Mr Opie and his wife who were interested in purchasing the house.
108 In his affidavit of 13 July 1999, Mr Cheney summarised the content of the first meeting at Norwood as follows:
"Mr Opie again told me that he had a client who was interested in purchasing the existing house. At the first George Street meeting I gave to Mr Opie the Coloured Plans and I showed to him the plan which comprises exhibit RKO 14 to Opie’s Affidavit ("the Development Plan"). I explained to him that I proposed to construct a dwelling on the Tennis Court in accordance with the Development Plan in relation to which I had received a decision from the ERD Court on 31st March 1998 in my favour. I was aware however that there was a possibility of an appeal against that decision and advised Mr Opie accordingly. As I only had one copy of the Development Plan at that time I promised Mr Opie that I would have a new set prepared for him and deliver it to him as soon as possible. I did not advise Mr Opie that the Coloured Plans had been prepared for the purposes of an application to the Adelaide City Council and the State Heritage Branch for approval for the Proposed Development. I advised him that the Coloured Plans had been prepared as part of the preliminary application to the Adelaide City Council and that they had been superseded by the Development Plan. I went through the Development Plan with him in detail at the first George Street meeting and pointed out the differences between the Coloured Plans and the Development Plan. I also showed him photographs of the Michells’ house on North Terrace, Adelaide."
109 In a subsequent affidavit of 20 July 1999, Mr Cheney expanded on that evidence. He said he explained that the proposed development had been modelled on Michel House which is situated on North Terrace and that he has spent many hours photographing those premises. He said he told Mr Opie he had climbed all over the Michel House getting the dimensions correct and that Bendigo has good examples of Second Empire architecture while Adelaide has little. Mr Cheney showed Mr Opie a copy of the "butter drawings" which are the coloured plans referred to by Mr Opie. He advised that these were left over from his meetings with members of the Council when he was seeking support for the development application. There was discussion about Ad Art who was the artist responsible for drawing those drawings. Mr Cheney said:
"In the dresser in the front room of my unit I had a rolled up, untidy set of Development Plans, which were missing the sheet which contained the floor plan of the Proposed Development. I placed the Development Plans unrolled on the floor of the front room of our unit. I advised Richard that these were the Development Plans which had been approved for development consent following the hearing of the second appeal. We talked about John McElhinney and Brian Hayes QC whom I used and how good they were.
I recall Richard and I kneeling together on the tiles in the front room of my unit to look at the Development Plans and compare them with the Butter Drawings. I recall that we both complained about bending down and old age and I told him that I was forty that year.
Richard and I discussed in detail the Development Plans. At this time I understood that he may have a client interested in purchasing the Proposed Development. The artist’s impression of the floor plan did not accurately depict the Development Plans in certain respects. I therefore marked the floor plan to show the changes."
110 Mr Cheney then described the various changes he marked on the plan and said he showed Mr Opie one of the early butter drawings. He gave the coloured plans to Mr Opie saying, "give the guy this stuff for now", intending to refer to the fact that Mr Opie could show those butter drawings to his client. There was a further short conversation as Mr Opie was leaving. Mr Cheney said he told Mr Opie he would fax a copy of the brochure from the original sale of the house.
111 Mr Cheney specifically said that Mr Opie expressed no particular concern about the height of the wall between the properties during the first meeting at George Street. He said the height of the wall was apparent from the development plan, but Mr Opie made no specific inquiry. The discussions concerning the southern wall of the proposed development were conducted by reference to a sheet marked "elevations SHT.1" of the development plans. He explained to Mr Opie that the finished height of the main part of the southern wall would be in alignment with the existing balustrade of the verandah on the northern and eastern sides of the existing house. Mr Cheney said this is a height of about 5 metres. He said they discussed the possibility of finishing the boundary wall on the side of the existing house in a style which would be in keeping with the arches that form part of the facade of the existing house. In order to do this, the wall would need to be of a size and scale equal to the height of the balustrades of the existing house’s verandahs.
112 According to Mr Cheney, a second meeting occurred at Norwood on about 3 April 1998. He said it was on this occasion that Mr Opie indicated for the first time that it was Mr Opie and his wife who were interested in purchasing the existing house. Mr Opie was keen to know more about the proposed development and wanted a full set of the development plans if Mr Cheney had them. He maintained that he provided a full set of clean and complete development plans to Mr Opie. According to Mr Cheney they rolled out the development plans and discussed the fall on the site, showing the use of Mr Opie’s verandah post as a benchmark point. Mr Cheney took Mr Opie through the development plans step by step as if he was an owner coming through the back garage area. He then reversed the role and took him through the front door and walked him through the lounge room, dining room and through to the family room area on the plans. Mr Cheney said he referred Mr Opie specifically to the second storey of the garage of the proposed development by reference to the development plans and there was comment by Mr Opie about having separate living quarters for children and guests. Mr Cheney showed Mr Opie the change in the length of the last flank of the southern wall, increasing by 1.72 metres from the 13 metres shown in the coloured plans, and explained that this was to fit in another toilet by the kitchen which Ms Collum wanted. There was discussion on elevation 5 of the development plans when Mr Cheney explained the working of the side wall on the southern area upstairs and how it was different from the coloured plans. A number of other discrete topics were discussed. In particular they discussed the positioning of the wall and its effect upon the dining room of the existing house. Mr Cheney said he explained that the southern boundary wall could be red brick or rendered in a biscuit coloured mortar to match the mortar of the existing house. He then said:
"I said that the render would offer fantastic reflective qualities and the opportunity to place on that wall the sort of arch details of the size that exist at the front eastern verandah of the Existing House and I pointed to where these were apparent from the Brock Partners brochure. I also made reference to that evaluation of the Development Plans to show how those arches could simply be superimposed down the flank of the wall around about where the kitchen windows in the Existing House are, as they were about the same height. He said that the use of a wall fountain would be a fabulous feature there too perhaps. He was fairly undecided about what to do at the rear. He talked of a pool.
I said that I designed the house down the southern side without a roof pitch to make the wall feel as if it was part of the Existing House and not part of the Proposed Development, particularly if the render opportunity was used. Richard observed that city living was about low maintenance, outdoor eating and that children now play on computers and do not need great big rambling back yards. He made reference to Bernard Booth’s house in Toorak Gardens with all its outdoor facilities. I commented that we had the biggest backyard we needed in that the park was across the road."

In his affidavit of 13 July 1999, Mr Cheney said the first site meeting was on 5 April 1998. He said that they did not enter the premises, but had a discussion about the proposed development. He again indicated to Mr Opie that the finished height of the southern boundary wall would be approximately the height of the verandah balustrade on the existing house.
114 Mr Cheney’s affidavit of 20 July 1999 places the first site meeting as having occurred on either Thursday or Friday 2 or 3 April 1998 or Monday 6 April 1998. He gave a much more detailed version of the meeting. He said it took place outside and in front of the existing house where he placed the development plans on the bonnet of his utility for discussion with Mr Opie. Mr Cheney said:
"We identified the elevation component of the Development Plans with the background of the actual house in front of us as we looked west. It was difficult to see too much from that angle for the purpose of comparing heights with what was shown in the Development Plans. I also compared the height of the Southern Wall with the balustrade on the front verandah facing east and its three cloistered arches. We talked about the general height of the Proposed Development and how it would sit in a similar fashion to how the Existing House sits in that part of the street."
115 Mr Cheney said he used his 8 metre long, centimetre incremented tape to show the drop in the height of the southern wall at about the dining room area. He pointed out that the height of the southern wall west of the drop was about 5 metres. As it was difficult to obtain an orientation and perspective of the southern wall, at Mr Cheney’s suggestion they moved to the north-eastern corner to look through a neighbouring property’s front yard area from a position on the street footpath verge. From that point they were able to see the north side of the existing house, including the balustrade on the northern balcony, and the gabled top of the old tin stable at the rear of the property. Those points provided end points. He said he pointed out that the southern wall would be of a similar height to the northern balcony and the gable of the stables. He also used galvanised posts protruding above the pergola and tennis court fence as a reference to a point higher than the proposed wall was intended to be. He said he told Mr Opie again that it was a pitchless roof and, as a result, it would look like a garden wall from his side. He showed Mr Opie on elevation 6 and 8 of the development plans how the roof appeared and compared the pitchless roof with the defendant’s view of the wall to the north of their proposed premises.
116 Mr Cheney said there was further talk about future development by Mr and Dr Opie. A number of other topics were discussed.
117 The second on-site meeting described by Mr Cheney occurred on 7 April 1998. On this occasion Dr Opie was present. In his affidavit of 13 July 1999, Mr Cheney said they discussed generally the plaintiffs’ plans for alterations, but Mr Opie did not say that the area of land to be left on the northern side was critical to his decision whether or not to purchase the property. He said he told Mr Opie that, in relation to the location of the boundary, Mr Opie should refer to the development plan which had been provided to him. There was talk about finishing the southern side of the boundary wall in a style which would match the existing house and make it feel part of the existing house. Mr Cheney said he did not pace out any distance to the western return from the north-western corner of the house and, in relation to all boundary issues, he referred Mr Opie to the development plan. He said he suggested to Mr Opie that Mr Opie come back at his leisure and take such measurements as he required for his purposes.
118 Mr Cheney denied indicating that the top of the southern wall would be level with the top of the pergola. He pointed out that the pergola is approximately 3 metres high and that the development plan wall height is up to 5.1 metres, of which both he and Mr Opie were aware at the time of the meeting. He said he did indicate that the height of the wall would be approximately the height of the old shed in the north-western corner of the property and maintained that the height of the wall is slightly below the height of that shed (which has subsequently been removed). He denied other aspects of Mr Opie’s evidence.
119 In his later affidavit, Mr Cheney repeated a number of those matters. In addition he said he pointed out that, from the back of the existing house and looking east, the new boundary would be roughly three feet north of the tennis court fence. Mr Cheney said he walked to the tennis court fence at a point approximately 1.5 metres inside the western boundary. After placing his heel in ivy, he paced about 13 steps from the fence. At the conclusion of those steps he told Mr and Dr Opie that the 1 metre western return was roughly where he stood. He advised Mr Opie that if he wanted to check it out again he could use the old peg in the lane at the rear of the tennis court and work it out from there. Mr Cheney was not asked to explain why he measured out 13 paces, the distance shown on the coloured plans, rather than 14 or 15 paces to represent the 14.72 metres shown on the development plans. Mr and Dr Opie joined him and they moved in an easterly direction near the centre of the tennis court. Mr Cheney then said:
"We looked south and I explained the reference points of the northern balcony balustrade at one end and the stable gable to the other western end of the Tennis Court as end point indicators of the approximate height of the southern wall. There were a couple of galvanised posts poking up through the vines which were a little higher. I explained that I thought that the wall would be no higher than the shed gable and that towards the eastern end it would run at the same height as the balcony’s balustrade and then step down about a metre about near their bay window."
120 Mr Cheney said they then moved back to the gates of the tennis court where he explained to Dr Opie that the wall would have a flat roof like a factory and not a pitched one as on the northern side of the new development. He told her that this would make their wall feel like it was their garden wall and not the wall of a neighbour’s house with a roof on it. Dr Opie asked where the two-storey section of the new house sat at each end and he explained it was about where the bay window and verandah started on the existing house’s northern side. The rest was single-storey except for the section above the garage in the north-western corner of the tennis court. He said he explained that the front section was about the same height as the Opies’ house. Mr Cheney said Dr Opie appeared a little confused about where the two-storey part existed over the garage and he explained that situation. They discussed the three-storey apartments to the west of the properties.
121 Mr Cheney said they talked about unusual features of the existing house and about the unusually high windows above the kitchen sink windows, which were good facilitators of light into the kitchen. He said it was difficult to see those windows from under or near the pergola as the vines were covering that area. He said, however, that he did not make reference to brick work above the windows.
122 Mr Cheney left Mr and Dr Opie in the rear yard and waited for them in the front yard area. When they came out of the house he used the lawn area to explain the 4 metre section of the southern boundary by standing in the middle of the lawn and looking north and pointing out that the 1.5 metre return was about where he stood. There was further brief conversation before the meeting concluded.
123 As to the dispute concerning the positioning of the western return of the southern wall in relation to the western wall of the plaintiffs’ house, Mr Cheney said it is not possible to measure that distance using the contract plan. He said the contract plan is only a floor plan of the proposed development, altered by hand to show the existing and realigned boundaries. He said the boundary measurements on the contract plan are clearly different from those shown on the coloured plans and the discrepancy was never questioned by Mr Opie.
124 Mr Cheney was cross-examined about his use of the expression "butter drawings". In his first affidavit of 13 July 1999 he adopted the terminology used in Mr Opie’s affidavit of 9 July 1999, including the use of the expression "coloured plans". In his affidavit of 20 July 1999, however, Mr Cheney spoke of "butter drawings". He was adamant that he used that expression when he handed the documents to Mr Opie during their first meeting at Norwood. He said he did not ever refer to them as the "coloured plans" in the presence of either plaintiff. In this context I note the evidence of Ms Collum that she has regularly heard Mr Cheney use the expression "butter drawings" in relation to documents of the nature of those described by Mr Opie as the coloured plans.
125 It is necessary to refer in some detail to particular issues raised with Mr Cheney during cross-examination. The first concerned the development plans. In his affidavit of 13 July 1999, Mr Cheney said he showed Mr Opie the development plans during the first meeting at Norwood, but was unable to provide a copy to Mr Opie at that time as he had only one copy. In that affidavit Mr Cheney made no mention of that one copy being incomplete. In his later affidavit of 20 July 1999, however, Mr Cheney said that one copy he showed to Mr Opie was missing the sheet which contained the floor plan. As to why he did not arrange to obtain a complete copy in advance of the meeting, Mr Cheney said that he did not anticipate the meeting to be as important as it turned out to be.
126 Mr Cheney acknowledged during cross-examination that in his affidavit of 13 July 1999 he swore that he had shown Mr Opie a full set of the development plans, whereas in his later affidavit he said he did not have a full set. As to how that change came about within the space of a week, Mr Cheney said he had thought about the matter seriously and put the pieces together. It was simply a case of recalling more clearly the process that had occurred. Counsel for the plaintiffs suggested that in that week he had reflected on Mr Opie’s affidavit in which Mr Opie said that Mr Cheney marked a page of the coloured plans; marking the coloured plans hardly fitted, so counsel suggested, with Mr Cheney’s version that the coloured plans were unreliable, left over drawings; if he was to mark any plan, on his version it would have been the development plans. Mr Cheney denied that he changed his version to include a reference to a missing sheet from the development plans in order to provide a reason for marking a page of the coloured plans.
127 If this matter was considered in isolation, the explanation for the change would appear plausible. Considered in conjunction with other matters and findings discussed later in these reasons, however, I am left with doubts about the veracity of the explanation.
128 The second issue concerns a statement in Mr Cheney’s affidavit of 20 July 1999 that, during the first meeting at Norwood, he marked a page of the development plans that he was showing to Mr Opie with a circle and by writing the figure "1 500" adjacent to the circle. His attention was drawn to the relevant parts of his affidavit relating this incident to the first meeting at Norwood and he gave the following evidence:
"Q.    Can you recall ringing the development plans at the meeting at Norwood with Mr Opie, the one you called the first meeting.
A.    I believe it took place at the first meeting.
Q.    You have an actual recollection of that, do you; down on your hands and knees with Richard, talking about your bad backs and old age.
A.    I wasn’t on my hands. I certainly recall the ringing of the 1 500 of the development plan elevation.
Q.    In Richard’s presence.
A.    Yes.
Q.    So it would have to have been - I suppose your recollection is there were two meetings.
A.    Correct.
Q.    So you are saying it was definitely at one or the other, but you can’t be sure which.
A.    No, I believe it was the first meeting."
129 A little later in his evidence he repeated on more than one occasion that he believed he marked the development plans during the course of the first meeting at Norwood and not the second.
130 The Norwood meetings occurred in early April, 1999. The development plans were lodged with the Adelaide City Council in August 1997. The difficulty that confronted Mr Cheney was the appearance on the plans within the Council file of the original drawing of the circle and the original writing of the number 1 500 in his writing. Mr Cheney then accepted that the plan was marked by him in that manner prior to the receipt by the Council of the plan in August 1997. He was then asked about the accuracy of his evidence that he marked the plan in Mr Opie’s presence in April 1999:
"Q.    Do you accept that the evidence that you have sworn to in para.42 of your affidavit of 20 July 1999 and the evidence that you have given this last five minutes to his Honour must be wrong.
A.    I believe that 1 500 was done for Maggie Juniper at the Adelaide City Council.
Q.    When.
A.    Then.
Q.    September of 1997.
A.    Correct.
Q.    And that what we see now on the Exhibit RKO14 is a photocopy of that.
A.    Correct.
Q.    So that your evidence in para.42 that you ringed the development plans elevation when Duntocher and the proposed house were shown in elevation by writing in "1 500 end" which related to the northern cut of that boundary, you accept that that evidence is wrong.
A.    I believed I did it with Richard but I remember doing it with Maggie Juniper because it related to the distance between the two properties that we were discussing about and I believed I did it with Richard but I didn’t, in that sense, because I do recall it now, seeing it here.
Q.    What has prompted this fresh recollection.
A.    Because I have been struggling with the aspect of whether I did it with Richard or whether I did it with Maggie or anyone from the council because it relates to the distance of the kickback of that front area and I believed I did it with Richard because I was talking at the time with him about the off sets that related to the southern boundary where it connected to the eastern end of the property.
Q.    You are making this up as you are going along, aren’t you.
A.    No, I am not. I am telling you the absolute truth.
Q.    What’s in para.42 of your affidavit -
A.    I believed I did it with Richard but my recollection is incorrect.
Q.    When you said a moment ago you have been struggling with the aspect of whether you did it with Richard or with the council, when were you struggling with that aspect.
A.    Through the process of tracing my steps, that particular aspect of that marking.
Q.    If that’s so, why did you swear that you did it with Richard if there was some uncertainty in your mind.
A.    I believed I did it with Richard."
131 Later in his cross-examination on this topic, Mr Cheney was asked whether there was any reason why in his oral evidence he did not qualify his answers before being confronted with the Council copy of the plan. He said he had not thought about it and did not see the issue as "a significant thing".
132 The explanation by Mr Cheney was, to say the least, unconvincing. He gave the appearance of plausibility, but I reject his explanation. I have reached the clear view that Mr Cheney sought to bolster his version that he showed the development plans to Mr Opie during the first meeting. He gave deliberately false evidence either knowing that he had marked the plan on another occasion or in the knowledge that he was unable to recall the occasion on which he had marked the plan.
133 The second issue also arose in the context of the question as to what plans were provided to Mr Opie. In his affidavit of 20 July 1999, Mr Cheney referred to his normal practice of commencing negotiations for a development with the relevant Council, without incurring the expense of preparing detailed architectural plans, by obtaining an artist’s impression on what he refers to as "butter drawings". He said he arranged for an artist’s impressions of the development to be prepared in order to conduct preliminary communications with the Adelaide City Council and representatives of State Heritage. He was seeking to obtain a "feel" for the guidelines under which the Council would permit him to develop the tennis court. As is the usual practice, these drawings are nearly always prepared prior to the preparation of architectural plans and prior to accurate dimensions of the proposed development being determined.
134 Mr Cheney said he had preliminary communications with the Council during the period April to June 1997. In the course of those meetings, the proposed development changed, ultimately reaching the form demonstrated by the coloured plans provided to Mr Opie. They were prepared by personnel from Ad Art, but accurate dimensions of the proposed development had not then been worked out. The northern, southern and western elevations were not, therefore, prepared to scale. Mr Cheney said that, in accordance with his usual practice where preliminary discussions have occurred, he ultimately supplemented the preliminary drawings with architecturally detailed development plans.
135 Mr Cheney’s affidavit then stated that on 22 August 1997 he lodged the development plans with the Council for the purpose of seeking approval for the proposed development. He made no mention of the original application for approval dated 24 July 1997. Similarly, he made no mention of the fact that the only plans annexed to the application of 24 July 1997 were the coloured plans. The development plans are dated 18 August 1997 and were not filed with the Council until 20 August 1997. The use of the coloured plans with the application of 24 July 1997 possessed the obvious capacity to demonstrate that Mr Cheney placed more significance on those plans in the context of his application for approval than he would have had the court believe they deserved.
136 Prior to Mr Cheney being confronted with the fact that the development plans were dated 18 August 1997 and did not accompany the application of 24 July 1997, his attention was drawn to the statement in his affidavit that he lodged development plans on 22 August 1997. In that context he said the coloured plans were "left overs", superseded by the application to the Council based on the development plans. He gave the following evidence:
"Q.    You say they [the coloured plans] were never part of the formal application process of the kind that you have referred to in para.21.
A.    They were superseded by the actual development plans for the purpose of obtaining development approval.
Q.    The so-called butter drawings were the development application, weren’t they.
A.    Absolutely not.
Q.    They were filed on 24 July 1997, weren’t they.
A.    They were included as part of the preliminary discussions that we had with council when we lodged for our official development plan application, as reference to being part of the preliminary discussions that we had.
Q.    I’m putting it to you that what Mr Opie calls the "coloured drawings", what you call the "butter plans", they were the application to the Adelaide City Council on 24 July 1997. Do you dispute that.
A.    They were included as part of the preliminary discussions that we had with the council for the development of that site, and in a process point of view, they had been superseded by the development plans."
137 Mr Cheney gave evidence that he lodged the development application dated 24 July 1997. He included the coloured plans with the application. He was asked:
"Q.    Do you say you put with that application any other plans.
A.    Yes.
Q.    A set of the development plans.
A.    Yes, to form part of the whole application.
Q.    Why put the coloured plans if you were putting in the development plans.
A.    Because they form part of what had gone on in that process, and I simply included everything that had been in the preliminary discussions with the council."
138 Mr Cheney acknowledged that following the lodging of the development application he expected the Council would send out notification to the neighbours of the proposal. In particular, the neighbours would be told that plans of the development were available for inspection. He had also acknowledged in earlier evidence, that if Mr Opie thought that the building Mr Cheney was intending to build related to the coloured plans, Mr Opie was "deluding himself".
139 Against that background, counsel confronted Mr Cheney with the fact that his application was dated 24 July 1997 and could not have been accompanied by the development plans which were dated 18 August 1997. The application was accompanied only by the coloured plans. Only the coloured plans would have been available for inspection by the neighbours. When first confronted, Mr Cheney attempted to evade answering the question. He was asked why he put forward drawings which were left over from previous discussions and on which, according to his earlier evidence, no-one could rely in assessing what he intended to build. He answered:
"Because they were part of what was a critical component to the house being reviewed by the planning staff for its aesthetic merit, and, in order to complete that process, the planning staff required further information, and the further information was the plans dated in August, as part of that process."
140 Mr Cheney was asked how he came to make the mistake earlier in his evidence when he said that the development plans were also filed with the application of 24 July 1997. The following answers were given:
"A.     Traditionally, when I make an application, that process involves the lodging of full development plan drawings, as in A1 size, and this particular application was sensitive, because of the aesthetic ramifications of that building in that location. What I used to kick that process off with, as part of that original development application, was the butter drawings, and I hadn’t followed the steps that were involved after that, but, not long after, the full drawings were required to form part of, and complete, the information required for the Council to make a decision on my approval.
Q.     Perhaps you might answer my first question:         Are you able to explain how you came to make a mistake in your earlier evidence when you said, in answer to me, that the development plans accompanied the application of 24 July. When you filed them, you filed the application, plus two sets of plans; the coloured plans and the development plans. That was your evidence. You now acknowledge it was wrong. My question is can you explain to me how you came to make that mistake.
A.     My explanation is that I know, to complete the planning process approval, they would require the full drawings, and I haven’t addressed it in my mind throughout the last three to four weeks as to the actual sequence of how those things occurred, so I was wrong in my recollection of the fact that I thought the two lots went together. There was a time frame in between them, and that is evident by the dates."
141 Again, I found Mr Cheney’s explanation unconvincing. I am satisfied that he was well aware, when swearing his affidavit and giving evidence, that only the coloured plans accompanied the application of 24 July 1997. For the purposes of these proceedings, Mr Cheney has been anxious to convey the impression that the coloured plans were worthy of little attention and that he was unlikely to have invited Mr Opie to rely upon them. He deliberately attempted to avoid fully informing the court of the use made of those plans with the original application because he perceived it might convey an impression of the importance he placed upon the plans that had the capacity to support the evidence of Mr Opie.
142 I am satisfied that Mr Cheney intended the neighbours to rely upon the coloured plans as giving a clear and accurate impression of the dimensions of the proposed development. In addition, as part of his appeal process, he provided the coloured plans to expert architects and planners in seeking their support for his application for approval. In particular, he requested a planner to address issues he knew were relevant to the Council such as density, height, proportions and overall scale of the proposal. Mr Cheney intended that the architects and planners rely on the coloured plans for those purposes.
143 Ultimately, Mr Cheney was forced to retreat from the position he had originally adopted in his evidence that, if Mr Opie thought the building he was going to build related to the coloured plans, Mr Opie was deluding himself. He was eventually asked whether he agreed with the proposition that the coloured plans were unreliable as a basis for an assessment of what he was going to build and he responded:
"No, I don’t, in the sense that they represented the form of the building in the streetscape, via the streetscape elevation, and they represented an indicative flavour of the style of house that would be built there, I hope I’ve answered your question correctly."
144 As to why in his affidavit he had omitted any mention of the application of 24 July 1997 and referred only to lodging the development plans on 22 August 1997, Mr Cheney acknowledged it would have given a more accurate picture of the process, but said the development plans were lodged to complete the whole application process. He denied the reference to lodging the development plans and the absence of any reference to the earlier application gave a misleading impression.
145 In the context of the coloured plans, Mr Cheney was also cross-examined to suggest that the streetscape illustrated that the proposed development would be smaller and lower than the Opie residence. He was unwilling to admit the obvious. In addition, he was unable to give a satisfactory explanation as to why the transparencies produced as the original of the coloured plans contained a photocopy of a picture of the proposed development which was not the same as the picture presented on the streetscape in the coloured plans given to Mr Opie. It was not the original of the coloured plans. The erroneous description of that particular document as the original provided yet another example of the unsatisfactory manner in which Mr Cheney approached his obligation of providing accurate evidence to the Court.
146 The third particular issue arising from cross-examination concerned the inaccurate positioning on the contract plan of the north-western corner of the Opie residence relative to the western return in the southern wall. Mr Cheney denied noticing the error. He said the sketch was prepared by a draftsman for the planning appeal. Its purpose was to display the orientation of the proposed house to the neighbouring premises. He said the heritage officers were concerned about the impact of the proposed dwelling because it would be next to the two State heritage homes. He was required to show the orientation from the streetscape, but not the full east-west length.
147 It is clear that Mr Cheney is a person with a careful eye to the meticulous detail of planning the construction of reproduction dwellings. It is highly unlikely that he would have overlooked such an obvious error on a plan drawn to scale. In addition, I have reached the clear view that the plaintiffs gave truthful evidence in describing Mr Cheney stepping out four or five large paces west from the western wall of their residence to demonstrate the position of the western return. I reject Mr Cheney’s evidence that he paced 13 metres east from the western boundary to a point about a metre west of the western wall. I find it is not a coincidence that Mr Cheney paced out a distance similar to the distance incorrectly shown on the contract plan. I reject his evidence that he is unable to recall any specific request for him to indicate the distance. I find that Mr Cheney deliberately misled the plaintiffs as to the distance between the western wall of the existing residence and the western return of the southern wall in the proposed development.
148 The final topic that requires particular attention relates to representations concerning the height of the southern wall.   Mr Cheney denied that either of the plaintiffs asked him how high the wall was going to be. He said they did not show any specific interest in the height of the wall. It was just a topic that was discussed as they were moving east along the tennis court. According to Mr Cheney, he gesticulated by moving his arm and saying the wall would be in line, roughly, with the balustrade of the balcony "and run through to no higher than but near about the gable of the stables that were in the western end". He said there was no response apart from accepting what he had said. Mr Cheney maintained the height of the wall was clear from the previous meeting between him and Mr Opie. Dr Opie was reserved and no questions came from her on this topic.
149 I am satisfied that the height of the wall was one of the issues of particular concern to the plaintiffs and that they have given truthful and reliable evidence concerning the representations made by Mr Cheney as to the height of the wall. I reject his version that they did not show any specific interest and that he indicated the height by reference to the balustrade.
150 As to events subsequent to the meeting on site, Mr Cheney agreed Mr Opie spoke with him on 16 November 1998 and advised him that he believed the position of the western return was different from the position represented in the contract plan. He said, however, that there was no reference to any alleged statement by Mr Cheney about that distance. The only complaint by Mr Opie was that Mr Danvers had relied on the contract plan to prepare drawings which Mr Opie now found were inaccurate. Mr Cheney said he explained to Mr Opie that the contract plan did not accurately depict the neighbouring properties nor did it purport to do so. However, he did not say the contract plan was only a rough plan or tell Mr Opie that there had been any mistake by the draftsman who prepared the plan or by any other party.   Mr Opie did not make any reference to an alleged misrepresentation by Mr Cheney, but said he was annoyed with himself for having relied on the contract plan in incurring costs with Mr Danvers. Mr Cheney said he did not apologise or offer any compensation.
151 Mr Cheney recalled a further conversation on the evening of 16 November 1998 when Mr Opie advised that he and his wife felt there had been a loss of amenity and suggested they should be allowed a reduction of $30000 in the purchase price. Mr Cheney responded that he would speak with Ms Collum and get back to Mr Opie, but did not say that they had "purchased the house well". On 18 November 1998 he spoke with Mr Opie and said that Ms Collum was not prepared to pay any compensation. He does not recall whether or not Mr Opie asserted that the contract plan matched what Mr Cheney had allegedly paced out at the site meeting.
152 The evidence of Ms Collum, although restricted because of her limited contact with the plaintiffs, generally supported that of Mr Cheney. She said she told Mr Cheney to make absolutely sure that Mr Opie knew what she and Mr Cheney were proposing to build on the tennis court. Mr Cheney told her that Mr Opie knew exactly what they proposed to build. He told her he had given all the documentation relating to the proposed development to Mr Opie. In particular he told her that he had provided Mr Opie with a copy of the plans from the appeal which were the development plans together with a copy of the "butter drawings".
153 Mr Cheney provided Ms Collum with a plan to annexe to the contract in order to indicate the manner in which the boundaries were to be realigned between the house and the tennis court. She said that on 27 April 1998 she met with Mr Cheney and Mr Opie at her office to discuss a draft contract and the purchase price. There was general discussion about the proposal to build and the difficulties they had encountered in obtaining planning approval. According to Ms Collum:
"I asked Mr Opie if he was happy with what we were proposing to build on the Tennis Court and he said that he was. I told him that I was most concerned to ensure that he was fully aware of what we were proposing to build and that we did not in any way impair our ability to build what we wanted to build on the property. He told me that Mr Cheney had given him a copy of the plans and that he was happy with the proposal."
154 The purchase price was agreed and Mr Cheney and Mr Opie shook hands. It was also agreed that Ms Collum would prepare the Special Conditions.
155 Ms Collum was confident that Mr Opie did not use the expression "coloured plans" during the course of this meeting. If he had done so, she would have wondered what he was talking about as she did not know of any "coloured plans". She only knew of "butter drawings".
156 Ms Collum said that Mr Cheney left the meeting. She and Mr Opie then had a discussion concerning the manner in which the realigned boundary between the house and the tennis court should be depicted. She showed the proposed contract plan to Mr Opie who suggested that they draw the existing boundary on to the small plan rather than bothering to transcribe the details on to the Title plan. Ms Collum accepted that suggestion as a practical solution. They then discussed positionings and the length of the boundary by comparing the Title plan with the contract plan and plotted the appropriate measurements roughly on a copy of the contract plan. According to Ms Collum, the returns at each end of the southern wall and their positionings were apparent from the contract plan.
157 Ms Collum said she faxed a draft of the Special Conditions to Mr Opie on 1 May 1998. They could not be settled prior to her leaving for overseas on 3 May 1998. Upon her return she redrafted the conditions and faxed them to Mr Opie on 3 June 1998, together with a copy of the contract plan. Mr Opie faxed back an amendment on the same day. The following day they had a discussion about the Special Conditions and eventually agreed upon the wording.
158 As to the meeting of 9 June 1998, the occasion on which the contract was signed, Ms Collum said she raised cl 5.3 with Mr Cheney and Mr Opie and some discussion followed. There was consensus about the windows on the southern side. Ms Collum said that in the context of discussions about the windows on the southern side, she asked Mr Cheney and Mr Opie if they were happy with what was in the house plan and they both confirmed that they were. She wanted to ensure that there was consensus concerning the windows in the southern side of the proposed development. She did not, however, ask Mr Opie if he had received a copy of the plans of the proposed development. She said she was told by Mr Opie on 27 April 1998 that he had been provided with the plans and Mr Cheney had similarly told her that he had provided the development plans to Mr Opie. She said it was also apparent from the discussions with Mr Opie on 27 April 1998 concerning the proposed boundary that Mr Opie was familiar with the proposed development, including the realigned boundaries.
159 Ms Collum accepted that in the management of the process of the construction of the building she has, essentially, left everything to Mr Cheney. She was present in court when her counsel made a statement that, in effect, Mr Cheney should be treated as a de facto defendant in these proceedings. During cross-examination Ms Collum also accepted that general description in the sense that he had authority to act on her behalf in the things he said or did in connection with the development. The defendant did not dispute the plaintiffs’ contention that she was bound by the conduct of Mr Cheney. I am satisfied that the defendant authorised Mr Cheney to act on her behalf in all the dealings and negotiations with the plaintiffs and she is bound by his conduct in that regard: see Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Limited (1931) 46 CLR 41 per Dixon J at 49-50.
160 I am satisfied that Ms Collum is a witness of truth. To the extent that her evidence differs from that of Mr Opie, those differences are explicable as differences in recollection. I am satisfied that Mr Opie did not make any reference to "coloured plans" during the meeting of 27 April 1998, but I am also satisfied that Mr Opie was not being deliberately untruthful in that regard. I have carefully considered the possibility that he has deliberately embellished his evidence, but I have rejected that possibility.
161 In support of Mr Cheney’s evidence concerning the coloured plans, the defendant tendered an affidavit of Adam Zbigniew Opala, a graphic artist who has been employed by Ad Art for approximately nine years. He has had considerable experience in preparing artist’s impressions of buildings and houses, usually from photographs. He also prepares impressions of new houses and is often provided with architectural plans in respect of premises that have not been constructed. He said he does not use the measurements from these plans to prepare his drawings. He bases his drawings on his feeling of the appearance of the house from the plans.
162 During the past four to five years, Mr Opala has prepared about thirty to fifty drawings for Mr Cheney, generally in respect of proposed houses. Usually his drawings are based on a rough free-hand sketch which Mr Cheney draws for him. It appears that the majority of the drawings are for European style houses, a style with which Mr Opala is familiar. He also relies upon discussions with Mr Cheney and his general knowledge of the style in which Mr Cheney frequently builds. They discuss the stone or bricks to be used and details such as doors, window types and arches. Mr Opala said, however, that Mr Cheney does not provide him with any dimensions and he bases the size of the houses he draws on his memory of the style of house involved. Once the drawing is finished Mr Cheney usually discusses the drawing with Mr Opala and indicates amendments he requires.
163 Mr Opala drew the drawings on the transparencies from which the coloured plans, other than the sheet showing the floor plan, were photocopied. He said he was initially asked to draw the front of the house looking from East Terrace and a view from the northern side. Mr Cheney drew a rough sketch and described the house as of a French style with a French style roof. Mr Cheney told Mr Opala that the size of the house would fit with the rest of the street and gave a description of how the house would look which included the type of ornaments on the roof and the front of the house. From his knowledge of French style houses and the description given by Mr Cheney, Mr Opala knew the style which Mr Cheney wanted him to draw.
164 Mr Opala said he did not visit the site. He was not provided with any dimensions of the proposed house. The second and third sheets of the coloured drawings which display the eastern and northern elevations, including a third dimension, are photocopies of the drawings which Mr Opala prepared after his first meeting with Mr Cheney. He said the third, fourth and fifth sheets which show the northern, southern and western elevations, were drawn later in response to a further request from Mr Cheney. In preparation, Mr Cheney drew a rough sketch of the house in red texta which is an exhibit in the these proceedings. In addition, Mr Cheney asked Mr Opala to prepare a drawing of the streetscape from East Terrace.
165 The top part of the first sheet of the coloured plans is a drawing of the setback positions of the houses from East Terrace. Sheet 7 is a floor plan. According to Mr Opala, those drawings were prepared by a Mr David Henderson of Ad Art. Mr Opala said he did not use the floor plan or the measurements from the floor plan to prepare his drawings and he was not aware of those measurements at the time he worked on his drawings.
166 Mr Opala based the drawing of the streetscape on photographs of the street. He did not include the defendant’s proposed house which was subsequently added by taking a photocopy of Mr Opala’s drawing of the house from its front view, reducing it in size and sticking it onto the streetscape. He was unable to say who carried out that task.
167 As to the northern and southern elevations depicted on the fourth and fifth sheets of the coloured plans, Mr Opala was unsure which he drew first, but said he based the first drawing on his "feeling of houses of that French style and based on David’s rough sketch". The second of the drawings was based on the first so that the two would be similar in appearance. He said he did this by ruling off points of the first sheet onto the page used to draw the second sheet which formed a grid upon which he based the second drawing. Mr Opala did not, however, use any measurements or the floor plan in preparing those drawings. In particular, in drawing the southern elevation Mr Opala did not know the height of the southern wall or the house and did not intend to show any particular heights. Similarly in drawing the northern and western elevation, Mr Opala said he did not have any knowledge of dimensions or intend to show any particular heights. The windows were drawn at a size based on the rough and uneven sketch and upon Mr Opala’s impression of windows in that type of French style. He did not know or intend to show any particular size with respect to the windows.
168 During cross-examination Mr Opala confirmed that whichever of the northern or southern elevation he completed first, he used that elevation as a template for the other. In that sense, they match. It was his intention to draw the various elevations in proportion to each other. He was positive that he did not see the floor plan. It was pointed out to him that the position in which he placed the western return of the southern wall was exactly in proportion to the same measurement as it appeared on the floor plan which is drawn to scale. He was unaware of that correlation. Asked how he could explain that he positioned the western return correctly and how he knew of the existence of that return, his evidence was as follows:
"A.     I remember I just draw from very rough sketch and David Cheney saw that and I don’t know what’s happened after, but it was done and he was quite happy about this.
Q.    But did the rough sketch show the wall, the edge with the return in it. Do you understand what I mean by "the return".
A.    Yes.
Q.    Did the rough sketch show the return in the wall.
A.    I think it should be, because David Cheney come many times, sometimes when I draw and put some correction, or say, "Listen, I don’t like this length, maybe change" and show me the finger, just mark roughly, and I do this sometimes few times up to the moment when he was happy in proportion and also "That’s great, I like this".
Q.     Did he do that with these drawings, come back and -
A.    I think, yes.
Q.    Look at them and ask you to change things or -
A.    Yes, I think it was few changes. I am not really remember exactly but was - I remember it was between those with the wall, but -"
169 Mr Opala agreed that Mr Cheney consulted closely with him about the drawings. He suggested the dimensions that Mr Opala should adopt in drawing them and corrected him on a number of occasions until he, Mr Cheney, was satisfied that what Mr Opala was drawing correctly reflected the size and scale of what Mr Cheney wanted. This included the proportions of the buildings and the walls he was drawing. Asked if that included getting those matters to scale in terms of their height and width, Mr Opala answered:
"A.     Yes. But that’s only by their word. He just say - mark the finger sometimes, "or maybe a bit higher", but everything was just in proportion in finger.
Q.    That is how you saw your job, was to draw everything in proportion according to how he wanted it.
A.    Yes."
170 The evidence of Mr Opala does not support the impression that Mr Cheney attempted to convey as to the preparation of the coloured plans. I am satisfied that Mr Cheney played a very active role in ensuring that what was drawn was accurate in depicting vertical and horizontal proportions based upon the total size of the block.
171 In an attempt to support Mr Cheney’s version concerning the coloured plans, the defendant called Mr Rodney Roach, a qualified architect. During cross-examination it emerged that Mr Roach had been given a set of coloured plans of different measurements from those provided to Mr Opie and used in the course of the trial. The use of different plans rendered inapplicable certain parts of a report prepared by Mr Roach and tendered. The defendant has chosen not to explain the circumstances in which Mr Roach was given different documents as the basis of his work.
172 In the witness box Mr Roach used both the transparencies and the coloured plans provided to Mr Opie in order to carry out a comparison involving the floor plans and, in particular, the northern, southern and western elevations. Differences emerged which led Mr Roach to the view that he would not rely upon the plans for a building application. However, the evidence of Mr Roach does not lead me to doubt the evidence of Mr Hillan concerning the use and scale of the coloured plans. In addition, I am satisfied that Mr Cheney regarded the coloured plans as sufficiently accurate to be used as representing an accurate portrayal of the dimensions and proportions of the various aspects displayed in those plans. In this context, I am satisfied that Mr Cheney ensured that Mr Opala was given sufficient information to achieve that result.
Findings
173 I have already indicated that I accept the evidence of the plaintiffs as both truthful and reliable on particular issues. I have given anxious consideration to the matters that counsel for the defendant suggested cast doubt upon the reliability of Mr Opie’s evidence, but I am satisfied that Mr Opie was a truthful witness and was, generally speaking, reliable.
174 Dr Opie was a particularly impressive witness. No attempt was made to impugn her credibility or reliability during cross-examination or in submissions. She gave careful consideration to the questions and her answers. I find that her evidence was both truthful and accurate.
175 As to Mr Cheney, I have previously found that in a number of respects his evidence was unsatisfactory. I formed an unfavourable view of his credibility.
176 Where the evidence of the plaintiffs conflicts with that of Mr Cheney, I prefer the evidence of the plaintiffs. I am satisfied that Mr Cheney has deliberately sought to mislead the court on important issues in order to avoid the consequences of his representations and the contract.
177 On the critical issues, I find in favour of the plaintiffs. I prefer and accept the evidence of Mr Opie that there was only one meeting at Norwood and as to the content of that meeting. In particular, I accept Mr Opie’s evidence that he asked about the height of the southern wall and indicated he was concerned about the impact of the height of that wall. Mr Cheney indicated the height by reference to features on the coloured plans as described by Mr Opie. I find that Mr Cheney referred only to the coloured plans and did not produce or refer to the development plans during the course of the meeting at Norwood. Mr Cheney presented the coloured plans as special plans used in seeking heritage approval. I find that, prior to the signing of the contract, the only plan provided to Mr Opie in addition to the coloured plans was the contract plan.
178 I find that only one on-site meeting occurred. I reject the evidence of Mr Cheney that, at an on-site meeting, he produced a set of the development plans and discussed those plans with Mr Opie. From the Norwood meeting, Mr Cheney was aware that the positioning and height of the southern wall was important to the decision to be made by the plaintiffs as to whether to purchase the premises. He deliberately misrepresented the height of the wall and the position of the western return during the course of the on-site inspection. Bearing in mind the defendant’s submissions that it is implausible that Mr Cheney would have set out to deliberately mislead Mr Opie, I have considered the possibility that the misrepresentation was unintentional and brought about by inadvertence or carelessness. Notwithstanding that a motive to deliberately mislead Mr Opie is not apparent from the evidence, I am satisfied that the misrepresentation was deliberate. As mentioned, Mr Cheney is a person of considerable experience in the building industry who pays particular attention to details. He was discussing a development of particular personal interest which he had planned meticulously. I am satisfied that he was well aware at the time of making the representations that they were misleading to a significant extent.
179 There is no evidence to suggest that Ms Collum was aware of Mr Cheney’s misleading conduct, but she is bound by what Mr Cheney did and said in the course of his dealings with the plaintiffs. The defendant did not dispute that she was bound by Mr Cheney’s conduct.
180 As previously stated, I accept the evidence of the plaintiffs as to the manner in which Mr Cheney demonstrated the position of the western return. I find that he indicated a position approximately five metres to the west of the western wall of the existing premises.
181 I find that Mr Cheney represented the height of the southern wall would be about the height of the pergola and of the brickwork over the windows in the western wall of the existing premises which he said was about the height of the pergola. In conjunction with those representations, I am satisfied that Mr Cheney presented the coloured plans to Mr Opie with the intention that Mr Opie should rely upon those plans, together with his representations, in determining the dimensions of the proposed development, including the height of the southern wall and the overall height of the development. The plaintiffs relied upon the coloured plans and the representations, including the misrepresentations, made by Mr Cheney in arriving at a decision to purchase the premises.
The Contract
182 The first issue to be determined is the identification of the house plan referred to in clauses 5.1-5.4 of the contract. Clause 5.1 is an acknowledgment by the plaintiffs of the defendant’s intention to construct a two-storey dwelling on the balance of the land and an acknowledgment "that the Vendor has provided to the Purchaser a plan of the proposed development ("the house plan")". The house plan is clearly not the contract plan attached to the contract. No other assistance in identifying the house plan that is the subject of clauses 5.1-5.3 is provided in the contract. In these circumstances the plaintiffs submitted, and the defendant did not submit to the contrary, that extrinsic evidence is admissible for the purpose of identifying the particular subject matter, namely, the plan of the proposed development that had been provided by the vendor, Ms Collum, to the purchaser, Mr Opie : see White & Another v Australia and New Zealand Theatres Limited (1943) 67 CLR 266.
183 I have found that, apart from the contract plan, the only plans of the proposed development provided to the plaintiffs were the coloured plans provided by Mr Cheney. I find that the coloured plans are the house plan for the purposes of clauses 5.1-5.4 of the contract.
184 The critical clause is cl 5.3. For ease of reference I repeat the terms of that clause:
"5.3   The Vendor agrees that the aspect and position of the southern side of the proposed development must not vary significantly from those depicted in the house plan as provided to the Purchaser (and, in particular, that no additional windows may be placed in the southern wall of the proposed development) unless the Vendor first obtains the Purchaser’s approval for such variation and the Purchaser must not withhold such approval unless the Purchaser reasonably determines that the variation affects the Purchaser’s enjoyment of the land."
185 Counsel for the defendant suggested that this clause should be construed narrowly in order to give effect to the terms of the contract as a whole. He suggested that in the context of the terms of the contract as a whole, the appropriate construction is that the defendant is permitted to build whatever two-storey dwelling she pleases, without interference from the plaintiffs, subject only to the provisions of cl 5.3. In essence he submitted the intention of the parties is best reflected as follows:
"The defendant retained the right to alter the Proposed Development without the need to obtain Mr Opie’s consent; and
the defendant was obliged to seek the plaintiffs’ consent only in respect of significant changes to the southern boundary of the proposed development".
186 Using this construction, the defendant argued that to construe "southern side" more broadly than meaning "southern boundary" would be contrary to the intention of the parties that the defendant could change the proposed development without the need for consent, other than in respect of specific circumstances. The defendant further submitted that the word "significant" should be given its plain English meaning, being substantive or important, and the phrase "aspect and position" should be construed as "applying conjunctively".
187 Ultimately, the submission concluded as follows:
"Construed as a whole, and in the light of the parol evidence, cl 5.3 should be construed as relating to changes in aspect and position on the southern side of the Proposed Development which are significant in their effect on Duntocher [the name of the plaintiffs’ residence]."
188 The final submission did not identify which "parol evidence" should be considered. Earlier in the same written submission, however, it was contended that the parol evidence of Ms Collum should be used to support the defendant’s contention as to the narrow construction to be given to cl 5.3. Particular reference was made to paragraphs 8, 10, 15, 16, 18 and 34 in the affidavit of Ms Collum dated 19 July 1999.
189 The plaintiff objected to the use of the evidence of Ms Collum as evidence of the intention of the parties. Counsel submitted that this use would offend against the rules of contractual interpretation. In response, the defendant first submitted that because the affidavit of Ms Collum was tendered and received without objection, the evidence contained in the affidavit had been received for all purposes. It was said it was too late to make a submission that its use should be limited.
190 The plaintiff relied upon Jones v Sutherland County Council [1979] 2 NSWLR 206 for the proposition that the evidence having been received, it was admissible for all purposes. Particular reliance was placed upon the passage in the judgment of one member of the court of appeal who said that because the documents in that case had been admitted into evidence, the fact that they contained hearsay material was relevant only to the question of their weight. That broad and unrestricted view was not shared by Samuels JA who drew a distinction between admission of evidence, without objection, which is legally admissible for some purposes and evidence admitted without objection which is not legally admissible for any purpose. His Honour said (p219):
"In my opinion, the general principle which emerges from the authorities (leaving aside the question of statements which are both admissions and self-serving) is this. If evidence, admitted without objection, is legally admissible in proof of some issue in the case, its evidentiary use should be confined to that purpose. The testatrix’s statements in Hughes’ case provide an example. If, on the other hand, evidence, admitted without objection, is not legally admissible in proof of any issue, it may, once in, be used "as proof to the extent of whatever rational persuasive power it may have"."
191 The third member of the Court did not deal with the issue.
192 The case of Hughes to which Samuels JA referred is Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 in which Gibbs J, with the concurrence of Mason and Aicken JJ, explained the general principle as follows (p153):
"There are no doubt some cases in which inadmissible evidence, having been admitted, may be treated as evidence for all purposes; for example, where one party by his conduct at the trial has led the other to believe that evidence, although hearsay, may be treated as evidence of the facts stated, and the other in reliance on that belief has refrained from adducing proper evidence, the former party is precluded from objecting to the use of the evidence to prove the facts stated. However, in general it is the duty of a judge to reach his decision on evidence that is legally admissible, and to put evidence only to those uses which the law allows. When a statement is admitted, not as evidence of its truth but simply as original evidence, the mere fact of its admission cannot enable it to be given an additional probative value which the law denies it."
193 In view of the urgent need to resolve this dispute because the defendant’s house is under construction, this trial was brought on at short notice. The evidence in chief was received by way of affidavit, supplemented only by limited oral examination. The paragraphs of Ms Collum’s affidavit to which objection is taken were admissible for purposes other than as evidence of Ms Collum’s intention. In my opinion, the fact that the plaintiff did not object to particular uses of the evidence contained in the affidavit does not mean that the evidence is admissible for all purposes, including purposes for which it would not be admissible if objection had been taken. I have limited the use of the evidence of Ms Collum and other witnesses in accordance with the general principle in Hughes to which I have referred.
194 The second basis upon which the defendant submitted that particular paragraphs of the affidavit of Ms Collum were admissible in support of the narrow construction of cl 5.3 for which the defendant contends was expressed as follows:
"The court is permitted to have regard to the objective framework of facts within which the contract came into existence, to determine the parties’ presumed intention in this setting. Evidence relating to the "genesis" and objectively the "aim" of the contract is admissible."
195 In support of that contention the defendant referred to Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337. Particular reliance was placed upon a passage in the judgment of Mason J at p348. In Codelfa, the High Court considered a number of contractual matters, including the circumstances in which the court would imply the existence of a term in a contract. The passage in the judgment of Mason J relied upon by the defendant was a reference by his Honour to the decision of the House of Lords in Prenn v Simmonds [1971] 3 All ER 237. In respect of that decision, Mason J said (p348):
"It was held that, although evidence of prior negotiations and of the parties’ intentions, and a fortiori the intentions of one of the parties, ought not to be received, evidence restricted to the factual background known to the parties at or before the date of the contract, including evidence of the "genesis" and objectively of the "aim" of the transaction, was admissible."
196 The approach of Lord Wilberforce had previously been accepted by Mason J in a judgment concurred in by other members of the High Court in Secured Income Real Estate (Australia) Limited v St Martin’s Investments Pty Ltd (1979) 144 CLR 596 at 606. In Codelfa his Honour confirmed his acceptance of that approach and then said (p 352):
"The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract."
197 I note that shortly after that passage, his Honour observed that in interpreting the contract a court takes into account what reasonable persons in the circumstances of the parties to the contract would have intended to convey by the words chosen.
198 The objective framework of facts within which the contract to purchase the existing residence came into existence is essentially based upon the fact that, to the knowledge of the parties, the defendant was intending to construct a dwelling on the block adjoining the existing residence, part of which would involve construction on the boundary between the existing residence and the proposed residence. The proposed development was, therefore, in very close proximity to the northern side of the existing residence. It had the potential to interfere with the amenity of the existing residence, including the rear yard. In that context and in the context of a purchase of the existing residence by the plaintiffs, the parties entered into a contract which identified the common boundary and which, through the Special Conditions, expressed their agreement as to their rights in connection with the proposed construction.
199 I have applied the principles to which I have referred to all the evidence. As to Ms Collum’s affidavit, in my opinion to the extent that the paragraphs relate to the aspirations or intentions of the parties, they are inadmissible in interpreting the Special Conditions.
200 In paragraph 8, Ms Collum referred to her instruction to Mr Cheney to make absolutely sure that Mr Opie knew what they were proposing to build and to her desire to ensure that they did not introduce a neighbour who might raise objections to the proposed development. The statement to Mr Cheney is relevant to the likelihood that Mr Cheney might subsequently deliberately mislead Mr Opie by failing to provide him with a copy of the development plans.
201 Paragraph 10 again referred to Ms Collum’s aim of reducing the potential for objections and her preference not to sell the house property until the construction was completed. In conjunction with the evidence of Mr Cheney, that statement was admissible as evidence supporting the defendant’s contention that Mr Cheney was not anxious to sell the property and had no motive to mislead the plaintiffs.
202 Paragraphs 15 and 16 are concerned with discussions between Mr Opie and Ms Collum. They are relevant to the relationship that existed and the likelihood that Mr Cheney would deliberately seek to mislead Mr Opie. In addition, generally speaking these paragraphs which gave evidence of Mr Opie’s dealings with the defendant and Mr Cheney are relevant to the overall assessment of Mr Opie’s conduct and in considering the credibility of his evidence concerning his reliance on the coloured plans and the representations of Mr Cheney. These and other paragraphs may also have some relevance to the exercise of the discretionary equitable remedies.
203 Paragraphs 18 and 34 provided evidence of the negotiations concerning and preparation of the Special Conditions of the contract. That evidence forms part of the general background and is also relevant to the plaintiffs’ contention that the Special Conditions should be construed contra proferentum.
204 In addition to the matters that I have mentioned, Ms Collum gave evidence in those paragraphs of statements and actions of the parties that are reflective of their actual intentions and expectations. The evidence of intentions and expectations is not admissible for the purpose of interpreting the contract, including cl 5.3 and the other Special Conditions.
205 There can be no doubt that cl 5.3 is to be interpreted in the context of the entire contract and, in particular, in the context of all the Special Conditions. Clause 5.1 is an acknowledgment by the plaintiffs of the defendant’s intention to construct a two-storey dwelling on the balance of the land. The plaintiffs also acknowledged in cl 5.1 that they had knowledge of what was proposed through the plan that had been provided. Clause 5.2 specifies that, subject to cl 5.3, the plaintiffs are required to give any consents required for the defendant to proceed with the development and that they agree "to make no objection to the proposed development or any change to the house plan". It is in that context that cl 5.3 provides that the defendant agrees to be restrained in respect of significant variations to the aspect and position of the southern side of the proposed development from those depicted in the house plans.
206 While I accept the defendant’s contention that the Special Conditions objectively evince an intention to limit the circumstances in which the plaintiffs were entitled to object to the proposed development and changes to that development, it also discloses an intention to impose a clear restraint upon the defendant’s right to alter the southern side of the development. The Special Conditions were intended to provide a degree of protection for both parties.
207 I do not agree with the defendant’s submission that the expression "southern side" should construed as meaning the "southern boundary" of the proposed development. If the parties had intended to restrict the operation of cl 5.3 to those parts of construction on the southern boundary, the clause would have said so. In this context I note that the southern elevation of the coloured plans shows that part of the southern wall of the front eastern section of the house is set back a short distance to the north of the boundary ("the house wall"). Given the objective framework to which I have referred, in my opinion the parties did not intend to exclude from cl 5.3 those windows in the house wall that were not on the boundary. In my view, cl 5.3 clearly contemplates that the "southern side" might involve part of the construction not on the southern boundary.
208 I also reject the submission of counsel for the plaintiffs that the expression "southern side" should be construed as a reference to any part of the development visible from the southern side. Counsel likened it to the view obtained from the southern elevation of the coloured plans. In my opinion, however, the words cannot be given such a broad interpretation. While the expression was not intended to be limited to the southern boundary, it was not intended to extend, for example, to the northern half of the development.
209 The words "southern side of the proposed development" should be given their ordinary and natural meaning. In my view, the language is not ambiguous. There is nothing in the objective framework or factual matrix of the contract to suggest that, objectively assessed, the parties intended that the words should bear any meaning other than their ordinary and natural meaning. In the context of the entire contract and the special conditions within which those words appear, in my opinion they were intended to delineate the areas of the construction on or in the near vicinity of the southern boundary.
210 Clause 5.3 imposes a restriction on varying the "aspect and position" of the southern side of the development. The definitions of "aspect" in the Shorter Oxford English and Macquarie Dictionaries include a reference to the appearance presented to the eye and to the mind. In my opinion the language is not ambiguous and the meaning found in the dictionaries is the ordinary and natural meaning to be attributed to that word in cl 5.3. Similarly, the ordinary and natural meaning should be given to the word "position" as it relates to the southern side of the development. In my opinion, cl 5.3 is concerned with both the aspect and the position of the southern side of the development as separate issues. The objective framework of the contract supports this view.
211 The restriction on varying the aspect and position of the southern side is limited to a requirement that it must not be varied "significantly" from those depicted in the coloured plans. The definitions of "significantly" in the dictionaries refer to "important", "notable" and "of consequence". There is no reference to "substantive" or "substantial" which is part of the interpretation for which the defendant contends. However, the Special Conditions disclose a clear intention both to protect the defendant from objections by the plaintiffs and to protect the plaintiffs from specified changes to the construction in the near vicinity of the plaintiffs’ premises. In those circumstances it is reasonable to conclude that the parties intended to impose the restriction in respect of important or substantial variations. The plaintiffs did not suggest otherwise.
212 As to whether a variation is substantial or important, the defendant submitted that the issue should be determined by reference to its effect on the plaintiffs’ premises. The plaintiff did not address this question.
213 In the context of a proposed construction in the immediate vicinity of the plaintiffs’ premises, by cl 5.3 the parties intended to provide a measure of protection for the plaintiffs in respect of changes to the appearance presented to the eye and to the mind of the southern side of the development. In addition, cl 5.3 provides that the plaintiffs must not withhold their approval for a variation unless the plaintiffs "reasonably" determine that the variation affects their enjoyment of the land. Hence it was intended that before consent could be withheld, the plaintiffs must determine that the variation affects their enjoyment of the land and that determination must be reasonable.
214 In my opinion, the parties intended that the issue of significance be determined by reference to whether, viewed objectively from the plaintiffs’ premises, the variation has an important or substantial effect on the appearance presented to the eye and to the mind. Similarly the question is to be asked whether viewed in the same way, the variation in the position is important or substantial. Further, it is not sufficient for the withholding of approval that a variation is important or substantial unless the plaintiffs determine that the variation affects their enjoyment of the land and that determination is reasonable. The proviso contemplates the possibility that an important or substantial variation to the aspect or position of the southern side may not be reasonably determined as affecting the plaintiffs’ enjoyment of the land.
Variations
215 In considering the evidence on all issues, and particularly the issues I am about to discuss, I have had the advantage of viewing the properties on two occasions. Those views are not evidence, but were of assistance to me in understanding the evidence.

Height of Southern Wall
216 The amended statement of claim identifies a number of variations which the plaintiffs claim require their consent pursuant to cl 5.3. The first concerns the height of the southern wall on the boundary. The plaintiffs claim that the southern wall was represented in the coloured plans to be a constant height of 3.8 metres. I have previously mentioned the evidence of Mr Hillan concerning the heights and the steps up moving east to west that are apparent in the development plans and latest plan. Generally speaking, the defendants’ land rises from east to west. As constructed, there were some difficulties in identifying the starting point for the measurements because of the changing ground levels and the construction work that has already occurred. The defendants tendered an affidavit from a surveying consultant, Mr Hewett, who had ascertained the relevant ground level at various points along the wall. Mr Hewett measured the height of the wall at those points. Mr Hillan accepted the accuracy of Mr Hewett’s measurements.
217 According to Mr Hewett, as constructed the southern wall commences at its eastern end at a height of 4.32 metres. The wall is a constant height for 8 metres to the west before stepping up to a height of 5.14 metres. The top of the wall is then at constant level for the remainder of its length to the western boundary, but as the ground level fluctuates moving west, the height measured from the ground level varies accordingly. It varies between 5.15 and 4.8 metres. Immediately to the north of the plaintiffs’ kitchen window it is approximately 5.15 metres.
218 The construction of the wall is complete except for an additional metre in height yet to be added to a nine metre section measured from the western boundary. It is intended to construct the additional metre in order to conceal plant and equipment such as air-conditioning units. If the additional metre is added, the southern wall will be approximately 5.8-6.0 metres in height for the nine metre section measured east from the western boundary. The additional metre will also mean that the wall is stepped up on two occasions moving from east to west in comparison with the constant height of the wall depicted in the coloured plans.
219 The primary thrust of the defence is the contention that the height of the southern wall cannot be determined from the coloured plans. The defendant submitted that the coloured plans are not to scale and the height of the wall depicted in the southern elevation cannot be determined. In respect of height, therefore, it was argued that the contract is too ambiguous or uncertain to be enforced.
220 I have found that, objectively assessed, the coloured plans were intended by the parties to be the term in the contract which identified the southern side of the proposed development, including the aspect of that side, and against which the significance of any variations to that aspect were to be assessed. I am satisfied that the parties contemplated that the height of the proposed development on the southern side, including the height of the southern wall, was part of that aspect. The parties intended that the coloured plans be used to determine the height of the southern side, including the height of the southern wall, in order that the significance of any variations to the aspect by reason of any variation in height could be determined. That interpretation being plain, the court should not lightly conclude that the parties’ intentions cannot be carried into effect because the party against whom it is sought to enforce the clause now says the clause is unenforceable by reason of ambiguity or uncertainty. This is a commercial contract that has been performed and one in which the intention of the parties as to the purpose or role of the coloured plans in the contract is clear.
221 As mentioned, in the context of construing the Special Conditions, counsel for the plaintiff submitted that as the defendant had prepared the Special Conditions they should be construed contra proferentum by resolving any doubt or ambiguity against the defendant. Counsel for the defendant submitted, however, that the rule is limited in its application and does not apply to the type of contract under consideration. In addition, it was said that the clause was "devised cooperatively" between Mr Opie and Ms Collum and the rule was, therefore, inapplicable.
222 In anticipation of the meeting of 27 April 1999 at which the purchase price was agreed, Ms Collum prepared a draft contract for the sale of the property for discussion purposes. It was agreed at that meeting that Ms Collum would prepare the Special Conditions. On 1 May 1998 Ms Collum sent a draft of these Special Conditions to Mr Opie by facsimile. Those conditions included reference to the intention to construct a dwelling and agreement by the plaintiffs to give any consents required. Subsequently, Mr Opie sent additional conditions to Ms Collum concerned with the registration of the plan of land division. Ms Collum then travelled overseas and, on her return, produced a further draft of the Special Conditions covering the issues raised in the drafts previously prepared by her and by Mr Opie. A few days later Mr Opie sent the draft back with brief handwritten amendments. In the draft of cl 5 which referred to the intention of the defendant to construct a dwelling and the agreement of the plaintiffs to give consent, it was Mr Opie’s handwritten amendments that first introduced the topic of the construction occurring "per plans provided by vendor to purchaser". Mr Opie’s suggested amendments also proposed that the plaintiffs had to be consulted with respect to any changes and their consent would be required. Ms Collum responded by informing Mr Opie she was not prepared to accept his proposed amendment. She insisted on retaining her right to alter the proposed development without obtaining his consent. She said Mr Opie responded that he wanted to ensure there were no significant changes to the southern boundary and she agreed to obtain his consent to any significant change to the southern boundary and, in particular, to the addition of any windows. It was in those circumstances that Ms Collum redrafted cl 5.
223 Although the bulk of the drafting was done by Ms Collum, it is apparent from that outline of the evidence that Mr Opie took an active part in identifying the topics to be covered in the Special Conditions. The fact that Ms Collum was a solicitor did not give rise to any imbalance of power between the parties. In particular, it was Mr Opie who introduced to the Special Conditions the concept of the plans that had been provided to him. In those circumstances, in my opinion it would be inappropriate by reason of Ms Collum’s role in drafting the Conditions to resort to a rule of construction that is adverse to either party.
224 There is an added feature, however, that must be taken into account. Although it was Mr Opie who introduced the concept of the plan that had been provided to him, the plan that became the subject of the contract had been provided by the defendant through Mr Cheney. In those circumstances, where the parties intended that the plan be relied upon in the manner to which I have referred, the court should not readily infer that the height cannot be ascertained from the plan because the party who supplied the plan with the intention that it be used to ascertain the height now says that the height cannot be ascertained from that plan.
225 Ultimately, rules of construction such as contra proferentum only apply in cases of ambiguity. For the reasons that follow, in my opinion such ambiguity does not exist and the height of the southern wall and other features of the construction can be ascertained with sufficient certainty from the coloured plans.
226 In the context of determining whether the height of the southern wall and other features can be ascertained from the coloured plans, the parties led considerable evidence, primarily from Mr Hillan, Mr Cheney, Mr Opala and Mr Roach. The plaintiffs also seek to rely upon evidence as to the use to which Mr Cheney put the coloured plans in order to demonstrate that his claim as to uncertainty is without credit.
227 In essence, the defendants submitted that the elevations in the coloured plans were prepared without reference to heights. They were drawn by reference only to a rough sketch and on the basis that the residence would be of a size which would fit in with the rest of the street. Mr Opala did not know or intend to depict any heights. The submission pointed out that Mr Hillan had erred in his assumption that the elevations on the coloured plans were drawn to a scale of 1:100 and then reduced in size when photocopied. It was said that once the foundation for Mr Hillan’s evidence is shown to be incorrect, there is no basis for deducing a scale from the elevations.
228 The floor plan sheet of the coloured plans was drawn to a scale of 1:100. I have already referred to the evidence of Mr Hillan that not only do the northern, southern and western elevations match each other in scale, but in the northern and southern elevations the overall length of the block from east to west is accurately depicted and the house in the correct proportion. The position of the western return is in exactly the correct proportion. Similarly, the space between the two double storey portions is correctly depicted in proportion. The western elevation is in exactly the right proportion for its width relative to the south and north elevations. As discussed earlier in these reasons, Mr Hillan was not prepared to accept that these matches occurred purely by coincidence. I agree with the view expressed by Mr Hillan. In this context, the true roles of Mr Opala and Mr Cheney that emerged during the cross-examination of Mr Opala are of particular significance. In preparing the coloured plans, Mr Opala followed the instructions of Mr Cheney who was closely involved with the preparation of those plans.
229 In attacking the reliability of the coloured plans as to height, the defendant also submitted that the overall height deduced by Mr Hillan of 9.6 metres is inconsistent with the intention of Mr Opala who set out to reflect a development that would be of a height and size that would fit in with the rest of the street. It was argued, therefore, that the deduced scale leads to the wrong result and is unreliable.
230 I do not agree with the defendant’s contention that a finished height of 9.6 metres derived from the southern elevation of the coloured plans is inconsistent with an intention that the development be depicted in the coloured plans at a height and of a size that would fit in with the rest of the street. Secondly, the eastern elevation shows the house in the third dimension which Mr Hillan explained is not drawn to scale. Thirdly, Mr Opala drew at least two versions of the front viewed from the east. It is to be remembered that Mr Opala did not draw the proposed house onto the streetscape. It was added after he drew the remainder of the streetscape by taking a photocopy of his drawing of the house viewed from its front, reducing it in size and sticking onto the streetscape. The drawing produced in that fashion on the copies provided to Mr Opie and to the Adelaide City Council with the application of 24 July 1997 are different from the reduced copy of the drawing attached to the original transparencies which were produced to the court as the original drawings prepared by Mr Opala. As already mentioned, Mr Cheney was unable to explain satisfactorily why the copy attached to the transparencies was first produced to the court as the original of the set given to Mr Opie.
231 Assuming for present purposes that evidence of intention is admissible on this issue, it is the intention of Mr Cheney and not Mr Opala that is critical. While Mr Cheney asserted in evidence that through the coloured plans he intended to inform the Council, and indirectly the neighbours, that the houses would be "peas in a pod and would read as complementary items of similar height", in my opinion a careful examination of the streetscape on the set of coloured plans given to Mr Opie demonstrates that the proposed development was depicted as smaller in overall dimensions and lower in height than the plaintiffs’ premises. In particular, it is set lower and the dividing line between the lower and upper floors is noticeably lower than the equivalent line on the plaintiffs’ premises.
232 In the context of what is conveyed by the streetscape, Mr Opala could not remember whether he or Mr Cheney carried out the physical task of photocopying his drawing of the house and sticking it to the streetscape that he had drawn. Mr Cheney was subsequently recalled on the topic of the different design shown on the photocopy attached to the transparencies, but he was not asked who carried out the physical task. In view of the process of attaching the drawing of the proposed development to the streetscape, care must be taken in making a comparison because, for example, the depiction of the dimensions and height of the proposed development in comparison with the plaintiffs’ residence obviously depends upon both the size of the photocopy and the level at which the photocopy is stuck to the transparency. It is worth noting, however, that the photocopy of the other design which now accompanies the transparencies is notably smaller in dimensions and overall height than the drawing of the plaintiffs’ residence on the transparency. It is a simple matter of laying the photocopy over the drawing on the transparency to observe the considerable difference. Mr Cheney described the drawing accompanying the transparencies as a previous design prepared as a possible option for the site to be used as a fall-back position because of some concern expressed by the Council about setbacks. He said it provided a softer option for the "juncture of the two properties".
233 In the light of the matters to which I have referred, and particularly the close role played by Mr Cheney in the preparation of the coloured plans by Mr Opala, these matters do not cause me to doubt that the relevant heights can be safely ascertained with sufficient precision from the coloured plans. I mentioned sufficient precision because counsel for the defendant attacked the evidence of Mr Hillan on the basis of a lack of precision as to the height of the southern wall derived from the coloured plans Having stated in his affidavit that the coloured plans depicted a wall of 3.8 metres, in the witness box Mr Hillan spoke of a height of 3.5-3.7 metres. He did so, however, with the comment that he was experiencing some difficulty because of the thickness of the line on the coloured plans. In subsequent evidence when the transparencies were produced, Mr Hillan came to a figure of 3.6 metres.
234 Mr Hillan acknowledged the existence of variations and agreed that the coloured plans were not sufficient as building plans. Generally speaking, he regarded the variations as within acceptable tolerances bearing in mind the purpose for which he understood the plans were prepared. Similarly, bearing in mind the purpose the parties intended the plans play in the contract, in my opinion these variations do not render the clause so uncertain through the use of the plans as to result in the clause being unenforceable. The height upon which the plaintiffs rely is the highest of the figures given in the variations to which I have referred.
235 Counsel for the defendant also highlighted the fact that the coloured plans do not make provision for the sloping ground level. The plaintiffs answered that this was of no consequence and the obvious building solution is to step the wall in the manner in which Mr Cheney has already constructed the wall. Counsel said that if in stepping the wall is at some points lower than 3.8 metres, the plaintiffs could not be heard to complain. He suggested, however, that they could be heard to complain if at its highest point before the next riser the wall was in excess of 3.8 metres. In essence, he contended the maximum height at any point from the sloping ground level should be 3.8 metres.
236 There is no difficulty in ascertaining ground level as the parties agree that the line adopted by Mr Hewett should be used. In my opinion, the fact that the parties agreed to use a plan that did not reflect a sloping ground level is not of any significance in deciding whether cl 5.3 is so uncertain that it cannot be enforced.
237 The submissions of the defendant also referred to the evidence of Mr Opie that he is unable to determine the height of the southern wall in metres from any of the sheets comprising the coloured plans. Similarly, Dr Opie said her understanding of the height of the building was derived from what she had been told by Mr Hillan. Generally she understood from the streetscape that the development would be lower in the roof line than the existing residence. The defendant argued, therefore, that the plaintiffs’ evidence failed to meet their case, namely, that they relied on the representations as to the finished height and the height of the southern wall as 9.6 and 3.8 metres respectively in entering and settling the contract.
238 It was clear from the evidence of the plaintiffs that they did not address their minds to the question of heights in metres. They relied upon their impressions of the streetscape and upon oral representations concerning the height of the southern wall made by Mr Cheney by reference to the height of the pergola and the brickwork over the rear windows. They assumed that the height represented by Mr Cheney was the height in metres disclosed on the coloured plans. In the presentation of their claim, they have accepted that they are contractually bound to accept a wall height higher than represented by Mr Cheney because the height of 3.8 metres is derived from the coloured plans.
239 The plaintiffs having accepted they are contractually bound by the heights derived from the coloured plans, in my opinion the defendant is not able to escape the constraints and consequences of cl 5.3 merely because the plaintiffs had not addressed their minds to the issues of height in metres. I am satisfied that Mr Cheney was aware of the heights depicted in the coloured plans. The parties intended to be bound by the term of the contract that incorporated the heights derived from the coloured plans and it is not to the point that the plaintiffs, who now accept that contractual state of affairs, did not have a height of metres in mind when entering into the contract.
240 As mentioned, I found Mr Hillan to be an impressive witness. I accept his evidence that the various heights of the proposed development can be ascertained with reasonable certainty by reference to the northern, southern and western elevations. There is a scale which is common to all elevations. That scale can be used to ascertain the height of the southern wall and other areas of the development with sufficient certainty in accordance with the intention of the parties. The inaccuracies or variations are relatively minor and do not destroy the integrity of the plans or create such uncertainty as to render this clause unenforceable.
241 I have found that the coloured plans are sufficiently certain with respect to height without reference to the use to which the plans were put by Mr Cheney. As previously discussed, in the course of the development application Mr Cheney used the coloured plans in circumstances demonstrating an intention that others rely upon the plans in order to determine the overall dimensions and other features of the proposed development. Mr Cheney provided the coloured plans to Mr Opie with the intention that Mr Opie rely upon them in the same way. Mr Cheney’s conduct in this regard demonstrates a belief on the part of Mr Cheney that the plans could be relied upon for those purposes. Those findings support the view reached independently of this evidence. I reject the evidence of Mr Cheney and the case for the defendant that the height of the southern wall and other parts of the development cannot safely be ascertained with sufficient degree of certainty in order to enforce cl 5.3.
242 The plaintiffs have given evidence to which I have referred of the effect of the additional height of the southern wall from their perspective. I have borne in mind the cross-examination directed to emphasising that the plaintiffs were aware when they purchased the premises that a wall would be built in close proximity to the northern wall of their residence, but I accept that their views of the impact are reasonable. In particular, I accept the evidence of Dr Opie and find that she gave a reasonable description when she said the additional height has converted the wall in the area adjacent to the house from possessing the aesthetics of a courtyard wall to possessing those of a squash court. I similarly accept their evidence concerning the impact on their rear yard. I find that the increase in height results in the wall looming over the plaintiffs’ premises as described by Dr Opie.
243 I found the evidence of Mr Hillan to which I have referred concerning the effect of the additional height on the amount of sunlight available to the kitchen windows and rear yard of considerable assistance. It was not challenged except for the proposition that it was overstated because he failed to take into account light available through two small windows positioned higher in the kitchen wall. Those windows assist in providing some light, but they do not detract from Mr Hillan’s evidence concerning the impact of the additional heights on sunlight available to the kitchen windows and rear yard. I am satisfied that it is reasonable to characterise that impact as substantial.
244 The written submissions of the defendant specifically asserted that the additional metre at the western end to be constructed in order to shield the plant and equipment is not a significant variation. Those submissions did not, however, assert that the increase in the height from 3.8 metres to the heights measured by Mr Hewett do not amount to significant variations. Nor did the submissions suggest that the plaintiffs’ determination that the variations affect their enjoyment of the land is not reasonable.
245 The first critical question for me is whether the plaintiffs have established that, viewed objectively from their premises, the increases in height of the southern wall above 3.8 metres amount to significant variations to the appearance to the eye and to the mind of the southern side of the development. The impact that the increases have on the amount of sunlight available is not of assistance in determining this first critical question. That impact is relevant to the next point related to the effect on the plaintiffs’ enjoyment of the land. The plaintiffs’ view as to the effects of the additional heights on the appearance to the eye and to the mind must be viewed with caution as their emotional involvement is likely to lead to a less than objective assessment. Their views are of limited relevance to the objective question to be determined by me.
246 I am satisfied that, viewed objectively from the plaintiffs’ premises, the increases in height of the southern wall above 3.8 metres amount to significant variations to the aspect of the southern side of the development. Viewed objectively, in my opinion the impact upon the amenity of the plaintiffs’ property is substantial. I find that the plaintiffs have reasonably determined that the variation affects their enjoyment of the land. I find that in constructing the southern wall at the various heights in excess of 3.8 metres without first obtaining the approval of the plaintiffs, the defendant was in breach of cl 5.3.

The garage has been constructed with portle frames and steel beams which are all connected. The height of the portle frames and beams is approximately 4.45 metres. The portle frame uprights are, of themselves, 3.3 metres in height. If it became necessary to lower the height of the first floor slab in the garage, the portle frames would need to be removed. The portle frames are bricked into the columns of the garage, so it would be necessary for all of the surrounding brickwork on the western, eastern and significant parts of the southern and northern flanks to be removed. There would be substantial cost, and significant practical difficulties in removing the portle frames and the slab from them.
The concrete staircase as presently constructed over the garage would need to be removed if the first floor slab was to be replaced at a lower height. The staircase would then need to be redesigned.
If any of these design height compromises are enforced the Proposed Development would require substantial re-design and engineering changes. I[t] has not been possible, in the time available to me, to address each of the consequences for the design of the Proposed Development as approved if it was to be restricted in height.
I estimate that the costs of lowering the existing structure involving the re-design of all calculations, bricklaying and sundry charges, steel beam and portle frames, bondek slab, concrete staircase, joinery, garage doors, demolition, crane hire and salvage costs would be in the order of $100,000.00. It is, however, difficult to estimate this cost."
297 Mr Cheney also expressed concern that it may be necessary to seek a further development approval. He said the previous decision on appeal by the Environment, Resources and Development Court was based upon a technical point relating to the administrative process of referring decisions to the Minister. He is concerned that if a fresh application is made, development plan consent would again be refused resulting in the substantial costs of a further appeal.
298 Finally, Mr Cheney said that if his business and reputation in the construction of authentic reproduction period mansions are to remain intact, he cannot build a "non-genuine reproduction period home". He has never built such a home. It has been his practice to show potential clients through his own home as a private display of his work and this could not occur if he is required to carry out the suggested compromises.
299 Mr Cheney displayed a degree of arrogance and indifference toward the interests of the plaintiffs in his dealings with them. That attitude was reflected in his evidence and in his insistence that no compromise was acceptable. While I accept that lowering the southern wall to 3.8 metres will result in a lowering of the ceiling height in the middle section to the level explained by Mr Hillan, and this will offend Mr Cheney’s ambition to build in accord with his personal views as to what is authentic and aesthetically desirable, I accept Mr Hillan’s evidence that a practical resolution can be found which will result in higher than usual ceilings and a construction that will be, overall, in proportion and aesthetically attractive. Generally speaking I prefer the evidence of Mr Hillan to that of Mr Cheney. In particular I accept Mr Hillan in preference to Mr Cheney as to what ceiling height can be achieved in the middle section if the wall is reduced to 3.8 metres. In my opinion, if the middle section is reduced in height as described by Mr Hillan, while the aim of Mr Cheney for perfection will not have been achieved, a smooth transition from the two-storey front section through to the rear can nevertheless be maintained.
300 As to the evidence that considerable construction costs could have been saved, the majority of those savings appear to have been estimated on the basis of a restriction of the total height of the eastern section to 9.6 metres. Leaving aside the costs related to the garage, it is not clear how much could have been saved in respect of items such as footings if the wall had been built to 3.8 metres with the flow-on effect to the middle section. I am prepared to assume in favour of the plaintiff that design changes brought about as a consequence of restricting the wall to 3.8 metres would have meant lower construction costs of a few thousand dollars would be thrown away.
301 In respect of the cost of lowering the height of the garage, or half of it, I have already found that the estimate given by Mr Hillan cannot be relied upon. I accept the evidence of Mr Cheney that the laying of the first floor slab of concrete cost approximately $15 000 which would again be incurred for relaying in addition to costs involved in demolishing and removing the existing concrete. Generally speaking, I prefer the evidence of Mr Hillan as to what is involved in the exercise within the limitation of Mr Hillan’s knowledge of matters such as the involvement of the portal frames. I accept the evidence of Mr Hillan in preference to that of Mr Cheney concerning the practicality of removing the southern half of the slab. In particular, I am satisfied that Mr Cheney was embellishing his evidence when he spoke of a need to redesign the stairs.
302 During the course of cross-examination of Mr Hillan about what was involved in and the likely cost of removing the slab and reconstructing it at a lower level, a number of letters from engineers were tendered and put before Mr Hillan. They were admitted on a limited basis, namely, as a convenient means of putting certain propositions to Mr Hillan. They were not admitted as evidence of the truth of their contents. Mr Hillan commented on a number of the propositions in the letters which it is unnecessary to canvass. The plaintiffs have drawn attention to the letters and the failure of the defendant to call any of the authors in connection with the issue of removing the slab. In particular, one of the letters was provided by Koukourou Engineers and Mr Cheney agreed in cross-examination on one particular issue that he would defer to the opinion of those engineers. As a consequence of the defendant’s failure to call any of the engineers, and in the absence of any evidence to suggest they were not available to give evidence or any other explanation for not calling them, the plaintiffs submitted that the principles in Jones v Dunkel (1959) 101 CLR 298 are applicable. It was properly said that an evidentiary onus rested on the defendant who was resisting the claimed relief on the basis of hardship.
303 Care must be taken in the application of the principle. In Spence v Demasi (1988) 48 SASR 538, Cox J, with whom White J agreed, described the principle in the following terms (p 547):
"The general rule is that "the unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case": Cross On Evidence (3rd Aust. ed, 1986), par 1.43. The circumstances must be such as to make it natural for the particular party to call the witness in question.... The rule is frequently applied, in both criminal and civil jurisdictions, with respect to material witnesses as well as to the parties themselves. It is a specific application of the well-established principle that a party is expected, within reasonable limits, to produce at the trial all the evidence that is fairly available to him."
304 In the circumstances of the matter under consideration by the Full Court, the majority held that the trial judge was justified in treating the case as exceptional and in declining to draw an adverse inference against the party for failing to give evidence. In this matter, I have borne in mind that the trial was conducted on short notice. Issues related to the costs associated with the removal of the wall, and in particular the costs in connection with alterations to the garage, were the subject of the gathering of evidence during the course of the trial. As a number of matters were being prepared and dealt with as the trial was proceeding, I have no doubt that additional time would have been needed in order to confer with the engineers and properly prepare for the leading of evidence from any of them. The letters were obtained at a late stage during the trial and it would have been necessary for the defendant to seek an adjournment in order to prepare to lead any of those witnesses. No application for an adjournment was made.
305 There were numerous issues associated with the practicality and mechanics involved in the exercise of removing the slab or part of it, as well the question of the likely cost. In all the circumstances, I am not prepared to draw an inference at large that none of the engineers would have assisted the defendant’s case in any respect. I am prepared to infer, however, that in some unknown respects their evidence would not have assisted the defendant. The failure to seek an opportunity to call any of those witnesses has left me with a feeling of unease about the evidence of Mr Cheney in this regard.
306 There is no doubt that the slab can be removed and that it would be a major exercise. As to the cost of removing and rebuilding the entire slab, I am not prepared to accept the evidence of Mr Cheney that it would be in the order of $100 000. I find that the original estimate given by Mr Hillan was too low. I am unable to make a precise finding. On balance I am satisfied the cost could exceed $50 000, but is unlikely to be as high as $100 000. I am also satisfied removing and rebuilding only the southern half of the slab is a practical and cheaper alternative.
307 As to Mr Cheney’s concern that it may be necessary to seek a further development approval, that possibility cannot be excluded and it would involve additional cost to the defendant. The result cannot be predicted with any certainty, but in view of the existing approval and the fact that the alterations would involve reducing the height of middle and rear sections of the development, I am not prepared to find that a refusal of consent is likely. Notwithstanding that view, I have taken into account as an element of hardship that the defendant may well incur the cost of a further development application and, possibly, of an appeal. In this context, the defendant also submitted that she would face a substantial risk of being unable to build any development on the property. There is no evidence to support that proposition and I am satisfied that such a risk is remote
308 As to Mr Cheney’s business and reputation, I am satisfied that any effect will be negligible if the defendant is obliged to reduce the southern wall to 3.8 metres and the flow-on effect results in alterations to the middle and western sections of the development. It is up to Mr Cheney how he represents the premises as eventually constructed. The public face provided by the eastern section does not have to be affected. In addition, it is difficult to envisage how the garage as constructed can genuinely be represented as an authentic reproduction period mansion.
309 I have discussed a number of matters raised by the defendant as matters of hardship which the defendant submitted should lead the Court to decline to make an order with respect to the southern wall leaving the plaintiffs to a remedy in damages. The hardship to which the defendant has referred is hardship that is said to have arisen after entry into the contract. Some authorities have led to a view that, as a general rule, in order for hardship to be a defence to a claim for specific performance it must exist at the time of entry into the contract. For example, in Webb v The Direct London and Portsmouth Railway Co. (1851) 9 Hare 129, the promoters of a railway company entered into a contract with a land owner to pay an amount for land to be taken for an intended railway in consideration of which agreement the land owner withdrew his opposition to a Bill. Subsequently, difficulties were experienced and the plans to construct a railway on the land were abandoned. The land owner sought specific performance and the defence of hardship was dismissed in the following manner (p 448):
"I see no ground whatever on which I can refuse to interfere. The company entered into this contract with their eyes open. They have had the benefit of the contract in the withdrawal of the opposition to the bill. There is nothing whatever to shew that the agreement was not originally a perfectly fair one; and, if I refused a decree upon the ground of the subsequent ability of the Defendants to complete their railway, I must refuse it in all cases in which a purchaser finds that he cannot effect the purpose for which he entered into the contract."
310 That authority was approved by the Master of the Rolls in Lord James Stewart v The London and North-Western Railway Company (1852) 15 Beav 513 at 523. In Halsbury’s Laws of England (4th ed.) par 870 it is said that as a general rule the hardship must exist at the time of the contract but that, exceptionally, hardship subsequently arising may be treated as a ground for refusing specific performance. An example of a case in which hardship arising subsequent to entering into the contract was accepted as a defence is found in Patel and Anor v Ali and Anor [1984] 1 Ch 283. Quite exceptional hardship occurring to the defendant after she signed a contract to sell a house resulted in the refusal of an order for specific performance.
311 In Spry, Equitable Remedies (5th ed.), the learned author suggests that statements that hardship should be judged at the time of entry into the contract are not justified by the authorities on which they purport to be based (p 196 and 197). The learned author says:
"It often happens that a contract is made fairly and that no questions of hardship arise at that stage but that subsequently events occur that render performance more onerous for one of the parties. If nothing more is shown, specific performance is not refused, but the position is different if the actual consequences of enforcement would operate so harshly and oppressively towards the defendant that the grant of relief would be unjust in all the circumstances. These principles are not consistent with a view that hardship is judged as at the date of entry into the material contract. Similarly, cases where the event alleged to give rise to hardship must be considered to have been within the contemplation of the parties, and is hence to be regarded as of correspondingly less weight, do not establish that hardship as at the time of enforcement is irrelevant. Again, other cases should be distinguished where considerations of hardship have been held not to warrant a refusal of relief, not because events occurring after the date of entry into the contract were considered to be irrelevant, but because those considerations arose by reason of the defaults or wrongful behaviour of the defendant and in all the circumstances it did not appear to be unjust to order specific performance. On principle, indeed, courts of equity must take account of all the circumstances known to exist at the time when an order is made, as well as of circumstances likely to occur subsequently, when they are called on to decide whether the effect of ordering specific performance will be to call such disproportionate hardship as to give rise to injustice."
312 I respectfully agree with that approach. It is relevant, however, to bear in mind that the defendant is the person who, through Mr Cheney, presented the coloured plans and agreed to their inclusion in the contract. The defendant was well aware of the effect of cl 5.3. Through Mr Cheney the defendant was well aware of the height of the southern wall depicted in the coloured plans. The defendant has had the benefit of the contract and is now unhappy with the effect of a term in the contract which was under her control. Leaving aside the issue of delay by the plaintiff, the hardship of which the defendant now complains has arisen because Mr Cheney chose to provide the coloured plans and not the development plans to Mr Opie, and because he chose through those plans and his oral representations to knowingly misrepresent the height of the southern wall.
313 In addition to the fact of hardship in a number of respects, the defendant submitted that the plaintiffs have contributed to the circumstances which cause hardship "by laying completely idle whilst the garage was built to 5 metres." It was contended that there was unreasonable inaction by the plaintiffs after they became aware of an infringement or pending infringement of their rights with the result that it would be unjust to grant the mandatory injunction.
314 It is necessary to have regard to the chronology of events. According to Mr Opie it was in November 1998 when he realised the position of the western return was much closer to the house than represented by Mr Cheney. After speaking with Mr Cheney and, subsequently, the architect Mr Danvers, Mr Opie spoke with Mr Cheney and followed with correspondence through solicitors. By letter of 18 November 1998 the plaintiffs complained of the change in the position of the western return, but indicated they were prepared to proceed with settlement. The allegation of misleading conduct was denied. While the plaintiffs agreed to proceed with settlement, they reserved their rights with respect to the change in the position of the western return. Settlement occurred on 23 November 1998.
315 According to Mr Opie they experienced a number of problems in connection with the building works between mid December 1998 and February 1999. Correspondence passed between the solicitors about issues such as the unauthorised use of power and water from the plaintiffs’ property, the removal of a stormwater pipe, a lack of communication and insurance.
316 In early March 1999 the metal portal frameworks were put in place on the western boundary. At that time Mr Opie appreciated from the framework that the wall would be higher than he thought it should be. He realised the height of the garage would be higher because brickwork would be placed on top of the frames.
317 As a consequence of their concerns about the height of the southern wall, the plaintiffs instructed solicitors who wrote to the Adelaide City Council on 27 April 1999 to obtain a copy of the relevant plans. The plan received has been referred to as the latest plan. By this time the walls had been topped. It is noted on a photograph tendered by the defendant that the walls were topped by April 19. It is clear from the photograph that the garage slab had not been constructed. Receipt of the latest plans was the first occasion on which the plaintiffs were given accurate information as to the intentions of the defendant.
318 By letter of 5 May 1999, solicitors for the plaintiffs wrote to solicitors for the defendant about a number of matters, including the height of the wall. It was in this letter that the incorrect height of 2-2.5 metres based on the coloured plans was mentioned. The defendant was requested to confirm that construction of the wall would comply with the plan provided to the plaintiffs at the time of sale. Discussions between solicitors occurred and, by letter of 10 May 1999, those acting for the plaintiffs forwarded an extract of the coloured plans to the solicitors for the defendant. That provoked a response by letter of 14 May 1999 in which it was asserted that the extracts from the coloured plans were not extracts from the "house plan" referred to in the contract. It was said the extracts were from "preliminary drawings" in which the elevations were artist’s impressions only and were not drawn to scale. The letter asserted that the plaintiffs have been provided with a copy of the development plan. Bearing in mind the defendant’s case in this Court that the height of the southern wall cannot be ascertained from the coloured plans, an interesting statement followed:
"In any event, both the preliminary drawings [the coloured plans] and the plan [development plan] show a wall of 4.5 to 5.0 metres in height along the southern boundary of our client’s property. (The height is not consistent as the land falls towards the eastern end).
319 By early May 1999 the defendant was on notice that the plaintiff was insisting that the wall not exceed the height shown in the coloured plans. While the letter referred to the height as 2-2.5 metres, I am satisfied that Mr Cheney was well aware that the height shown in the coloured plans was approximately 3.8 metres. A without prejudice meeting was held between the parties on 21 May 1999 which was unsuccessful in resolving the dispute and the defendant and Mr Cheney wrote directly to the plaintiffs on 25 May 1999 in an effort to re-establish a cordial relationship. There was no offer in the letter to restrict the height of the wall. Mr Opie responded by letter of 8 June 1999 confirming that he did not accept their position in relation to the height of the wall and that the variation to the height constituted a significant variation under the contract. The letter stated that unless the situation was resolved by reducing the wall to the height represented to the plaintiffs, they would have no alternative but to pursue the legal remedies available to them. Solicitors for the plaintiffs wrote on 30 June 1999 confirming they had instructions to issue proceedings and noting that building of the wall along the boundary was proceeding notwithstanding the dispute that existed. The defendant’s solicitors responded by letter of 1 July 1999 that the plaintiffs’ objections were without foundation and maintained no breach of cl 5.3 had occurred. The letter continued:
"Under the circumstances, there is clearly no reason why our client should not proceed with the building work in accordance with the approved plan. Our client has certainly never indicated that it was not her intention to do so.
We reject your suggestion that it is inappropriate for the building works to continue while proceedings are pending. We note that your client has been threatening proceedings since your facsimile of 5th May 1999. Our client will be put to serious inconvenience and will suffer considerable financial loss if progress on the building works is delayed. Our client intends to continue the building work, as she is entitled to do."
320 By summons filed on 9 July 1999 the plaintiffs sought various orders by way of injunctions relating to the building works generally and, in particular, the southern wall. The summons first came on for hearing on 13 July 1999. Orders were made concerning the listing of an early trial. An order requiring that work cease was initially made, but was discharged the same day upon appropriate undertakings being given by the defendant. It is only the work done prior to 13 July 1999 that the defendant relies upon as demonstrating hardship.
321 Mr Cheney did not give evidence as to when the concrete slab that forms the ceiling of the garage was laid. A number of invoices were tendered as exhibits to the affidavit of Mr Cheney dated 4 August 1999. They include an invoice from a pumping contractor dated 20 May 1999 for work done described as:
"pumped 31 CMS to Suspended Floor and Cavity Walls".
322 The invoice refers to a time of six hours on site at a total price of $660.
323 In view of that evidence and the photograph which shows the slab was not in place on 19 April 1999, it is a reasonable inference that the slab was laid on about 20 May 1999.
324 The classic statement of the principle is found in Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 at 239-240:
"Now the doctrine of Laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as a waiver of it, or where by his conduct or neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if a remedy were afterwards to be asserted, in either of these cases lapse of time and delay are not material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
325 In Lamshed v Lamshed (1963) 109 CLR 440 at 453, Kitto J, with whom Windeyer J agreed, referred to Lindsay Petroleum v Hurd and Erlanger v New Sombrero Phosphate Co. (1878) 3 App Cas 1218 and said:
"To repeat words from the latter case, "a court of equity requires that those who come to it to ask its active interposition to give them relief, should use due diligence, after there has been such notice or knowledge as to make it inequitable to lie by"."
326 In Spry, the principle is explained in the following terms (pp 554 and 555):
"In applying the doctrine of laches to proceedings for mandatory injunctions, courts with equitable jurisdiction first determine whether there has been an unreasonable delay on the part of the plaintiff in commencing or prosecuting proceedings and secondly they ask whether, in view of the nature and consequences of that delay, it would be unjust to grant the specific relief in question, whether absolutely or on appropriate terms or conditions."
327 The learned author observes that Laches must be judged in relation to the particular equitable relief sought by the plaintiff and that the doctrine is applied to prevent injustice to the defendant caused through unreasonable delay by the plaintiff and not to penalise the plaintiff for a lack of diligence.
328 The defendant submitted the delay from early March is unreasonable. While the plaintiffs became aware at that time that the wall would be higher than they thought it should be, that knowledge came from seeing metal frames erected on the western boundary. It was not until mid April when the walls were topped that the ultimate height and full impact could be properly appreciated. In addition, I accept Mr Opie’s explanation for not taking action in March given in the lengthy answer to which I have already referred. The defendant submitted that answer was not a "sensible explanation". I do not agree with that submission. While it might be suggested that Mr Opie was unduly sensitive, I am satisfied that he was telling the truth in that answer and that his reaction was not unreasonable. His reaction was that of a person who had relied upon Mr Cheney and subsequently found that, not only was his reliance misplaced, but his concerns were brushed aside by Mr Cheney who treated him with a degree of disdain. A significant feature of the dealings that led to Mr Opie’s state of mind was the way in which Mr Cheney brushed off the complaints about the change in the position of the western return and denied that he had paced out the distance. Those dealings were described in pars 23-26 of Mr Opie’s affidavit of 9 July 1999.
329 From early May 1999 the plaintiffs made clear their objections to the height of the wall. In all the circumstances, I find that the delay from early May to the issuing of proceedings in early July was not unreasonable. In the knowledge that the plaintiffs were threatening legal proceedings and maintaining the southern wall should be reduced in height to the height shown in the coloured plans, and in the knowledge that the wall was built higher than depicted in the coloured plans, the defendant through Mr Cheney knowingly took the risk of building the garage slab which Mr Cheney knew was constructurally linked to the southern wall. In these circumstances, this is not a case in which the plaintiffs should fail because of the hardship to the defendant brought about by the plaintiffs’ inaction.
330 The plaintiffs also submitted that this is the type of case where specific performance should not be ordered because the court would be required to supervise the performance of the contract. I do not agree. It is unnecessary to canvass the authorities relating to specific performance and supervision by the courts. An order that the wall be reduced in height to 3.8 metres does not require the type of supervision to which the authorities refer as a matter tending against the grant of specific performance. If an order was made it would not leave any uncertainty as to what was to be done.
331 It is clear that I must seek to apply the remedy that will best serve the needs of justice between the parties. All of the matters to which I have referred are to be taken into account in the exercise of the discretion. If damages are an adequate remedy, a mandatory injunction directing that the height be reduced to 3.8 metres will not be granted. The defendant relied upon the remarks of A L Smith LJ in Shelfer v City of London Electric Lighting Co. [1895] 1 Ch 287 at 322 and 323 where his Lordship said:
"In my opinion, it may be stated as a good working rule that -

If the injury to the plaintiffs’ legal rights is small,
And is one which is capable of being estimated in money,
And is one which can adequately be compensated by a small money payment,
And the case is one in which it would be oppressive to the defendant to grant an injunction: -
then damages in substitution for an injunction may be given....
It is impossible to lay down any rule as to what, under differing circumstances of each case, constitutes either a small injury, or one that can be estimated in money, or what is a small money payment, or an adequate compensation, or what would oppressive to the defendant. This must be left to the good sense of the tribunal which deals with each case as it comes up for adjudication.... Each case must be brought within the exception".
332 Immediately following the passage containing the four working rules, but not cited by the defendant, his Lordship also said:
"There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with a reckless disregard to the plaintiff’s rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction." (my emphasis)
333 The words to which I have given emphasis are of particular importance in this matter. I have found that Mr Cheney made deliberate misrepresentations orally and through the use of the coloured plans. He knowingly ignored the rights of the plaintiffs in building the southern wall higher than 3.8 metres without seeking their consent. He clearly acted with a reckless disregard to the plaintiffs’ rights.
334 The working rule proposed by A L Smith LJ has not escaped criticism. The learned author in Spry suggests there is no satisfactory reason why general equitable principles that depend essentially on the balance of justice between the parties, and especially on the weight that must be given to considerations of hardship, should be restricted by a rigid set of rules. The author suggests the rules should be treated with considerable caution and that it appears to be preferable to say that such matters should be regarded as of relevance without necessarily being decisive when the court is called on to exercise its discretion and to decide whether it would be unjust to grant the specific relief to which the plaintiff is prima facie entitled. The discussion proceeds (p 640):
"Hence resort must be made to general equitable principles in determining what circumstances cause a court of equity to substitute damages for specific relief that it would otherwise have granted. The general rule is, as has been seen, that this substitution ordinarily occurs only when the hardship caused to the defendant through specific enforcement would so far outweigh the hardship caused to the plaintiff if specific enforcement were denied that it would be unjust in all the circumstances to do more than to award the damages."
335 Later in the passage dealing with the discretion to grant damages, the learned author says (pp 641 and 642):
"Similarly the court may take into account, when it considers questions of hardship, the extent to which the defendant has at any material time been aware of the rights of the plaintiff and the extent to which he has acted in ignorance either of law or of fact, for it has been said, "Without laying down any absolute rule, in the first place it is of great importance to see if the defendant knew he was doing wrong, and was taking his chance about being disturbed in doing it" [Smith v Smith (1875) LR 20 Eq.500 at p 505].
An additional matter, which is regarded as relevant in so far as it may affect the justice or injustice as between the parties of granting specific relief, is the fact that a defendant against whom proceedings for a mandatory injunction, for example, are brought has hurried his wrongful acts so as to present the plaintiff and the court with a fait accompli. Similarly any relevant conduct on the part of the defendant, or indeed on the part of the plaintiff, that is dishonest or unconscionable is to be taken into account as weakening the force of claims based on hardship or inconvenience, even if it does not give rise to unfairness or to some other such consideration".
336 Contrary to the submissions made by the defendant, I am satisfied that the injury to the plaintiffs’ legal rights is not small. It follows that I do not agree with the defendant’s submission that "objectively their complaints are trivial".
337 The wrong to the plaintiffs caused by the breach of contract is substantial and continuing. They purchased the home with a view to it being their family home for the next twenty years. There is little that can be done on the plaintiffs’ side to ameliorate the effects of the additional height of the southern wall. Rendering the wall in an appropriate colour would assist, but that treatment cannot overcome the impact on the amount of sunlight available to the kitchen and rear yard and the general impact on the amenity to which I have referred.
338 In all the circumstances, and notwithstanding the obvious hardship that will be caused to the defendant, I am satisfied that damages would be an inadequate remedy and that the interests of justice require that I grant the mandatory injunction sought in respect of the southern wall. The essence of the order is a direction that the defendant remove so much of the southern wall as exceeds 3.8 metres in height measured from the ground level fixed by Mr Hewett. I will hear the parties as the precise terms of the order.

Height of Eastern Two-Storey Section

339 I have found that to construct the southern side of the front eastern two-storey section to a height which results in the ridge line running between the mansard roof sections being higher than the ridge line of the plaintiffs’ residence, would amount to a significant variation and the plaintiffs’ determination that it would affect the enjoyment of their land would be reasonable. During his evidence Mr Cheney said he did not have a problem with the height of the development being restricted so that the ridge lines were of the same height. The evidence establishes that this would be achieved if the overall height of the development was limited to 11.75 metres in accordance with the development plans. No hardship would be caused to the defendant.
340 I am satisfied, therefore, that the interests of justice require that I grant an injunction restraining the defendant from constructing the southern side of the eastern section of the proposed development, including the mansard roof section, to a height exceeding the height of 11.75 metres depicted in the development plans.

Windows in Southern Wall of Eastern Upper Storey
341 I have found that a variation to the unattractive windows described by Mr Hillan would be a significant variation. If the plaintiffs determined that a change to those windows would affect their enjoyment of the land, that determination would be reasonable. Mr Hillan provided a simple solution and Mr Cheney has not suggested in evidence that some hardship would be caused if the windows had to remain of an attractive stained glass type.
342 There is no evidence that the defendant intends to construct the unattractive windows described by Mr Hillan. This matter arose because Mr Hillan identified a fire safety problem. The existence of a fire safety issue is not a matter to which cl 5.3 applies. However, I have indicated my view in order that the parties are aware of their respective legal positions.
Summary of Findings and Orders
343 1. The coloured plans are the house plan for the purposes of cl 5 of the contract.
344 2. For the purposes of cl 5.3 of the contract:
the words "southern side of the proposed development" were intended to delineate the areas of the construction of the proposed development on or in the near vicinity of the southern boundary.
The word "aspect" was intended to mean the appearance presented to the eye and to the mind.
The word "position" should be given its ordinary and natural meaning which does not require further definition.
The word "significantly" was intended to mean important or substantial.
The issue as to whether a variation is significant is to be determined by assessing whether, viewed objectively from the plaintiffs’ premises, the variation has an important or substantial effect on the aspect or position of the development.
It is not sufficient for the withholding of approval that a variation is important or substantial unless the plaintiffs determine that the variation affects their enjoyment of the land and that determination is reasonable.
345 3. As to the southern wall:
the height can be ascertained from the coloured plans with sufficient certainty for the purposes of enforcing cl 5.3.
the height depicted in the coloured plans is about 3.8 metres.
the increases in the height of the southern wall above 3.8 metres amount to significant variations to the aspect of the southern side of the development.
the plaintiffs have reasonably determined that the increases in height above 3.8 metres affect their enjoyment of the land.
in constructing the wall at the various heights in excess of 3.8 metres without first obtaining the approval of the plaintiffs, the defendant was in breach of cl 5.3.
the application for a mandatory injunction to remove so much of the southern wall as exceeds 3.8 metres in height, measured from the ground level fixed by Mr Hewett, is granted. (I will hear the parties as to the precise terms of that order).
346 4. As to the height of the eastern two-storey section:
the height can be ascertained from the coloured plans with sufficient certainty for the purposes of enforcing cl 5.3.
the height depicted in the coloured plans is about 9.6 metres.
on balance I am not satisfied that an increase in height to 11.75 metres would amount to a significant variation to the aspect of the proposed development.
based on an increase in the height to 11.75 metres, I am not satisfied that the plaintiffs’ determination that their enjoyment of the land would be affected is reasonable.
construction to a height in excess of 11.75 metres would be a significant variation to the aspect of the proposed development.
based on a construction to a height in excess of 11.75 metres, the plaintiffs’ determination that their enjoyment of the land would be affected would be reasonable.
the application for an injunction restraining the defendant from constructing the southern side of the eastern section of the proposed development, including the southern mansard roof section, to a height exceeding 11.75 metres is granted.
347 5. As to the windows in the southern wall of the eastern upper storey:
construction of unattractive steel-framed, Georgian-wired glass windows described by Mr Hillan would amount to a significant variation to the aspect of the southern side of the development.
if the plaintiffs determined that such a variation would affect their enjoyment of the land, such a determination would be reasonable.
as the evidence does not establish an intention on the part of the defendant to construct such windows, no order will be made.
348 6. The remaining heads of the plaintiffs’ claim for equitable relief are dismissed.
349 I will hear the parties generally as to the details of orders and as to outstanding matters including damages.

[1999] SASC 376

13 September 1999