Osman v Lockyer - [2016] SADC 56

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
OSMAN v LOCKYER & ORS
[2016] SADC 56
Judgment of His Honour Judge Slattery
9 June 2016
REAL PROPERTY - EASEMENTS
CONVEYANCING - BREACH OF CONTRACT FOR SALE AND REMEDIES - ENTITLEMENT TO DEPOSIT - RECOVERY BY PURCHASER
The plaintiff owned vacant land at 20 Blyth Street Glen Osmond SA (the land) and through her agent placed the land on the market for sale in October 2013. On 15 October 2013 the plaintiff retained an architect to draw concept plans for building works on the land to be used in the promotion of the sale of the land. On 16 October 2013 the plaintiff instructed her agent to require the architect to prepare the concept plans using as a guide a garden plan that showed some detail of the measurements of the land. In October 2013 there were two relevant easements in favour of SA Water registered on the land that affected about 30 percent of the land. Those easements prevented any building work being carried out on the area of the easements except with the permission of SA Water.
On 22 October 2013 the land was advertised for sale and it came to the attention of the defendants who were seeking to purchase a block in the area to develop as a home. An inspection of the land occurred on 23 October 2013 and present were the plaintiff, the defendants and Alexandrou. The defendants contend and the plaintiff denies that at the time, the agent presented to all parties present the architect’s concept building plans that purported to show building works upon the area covered by the easements. The plaintiff contends and the defendants deny that at the inspection, the plaintiff explained to the defendants the extent and nature of the easements on the land and that no concept plans were delivered to the defendants on that day.
On 24 October 2013 the agent served on the defendants a Form 1 document that described the easements but without copies of the easements together with a copy of the Certificate of Title. The defendants read these documents but contend that the ongoing effect of reading the concept plans and what they were told on 23 October 2013 was such that the defendants did not properly read or comprehend the information on the face of the Form 1 and the Certificate of Title.
The defendants made an offer of $720,000 to purchase the land and the plaintiff counter offered $730,000. The land then went to auction and the defendants were the only genuine bidders at $720,000. A contract with the plaintiff was signed with settlement due in early December 2013. Shortly prior to settlement, the defendants ascertained the nature and extent of the easements on the land and authorised their solicitors to send a letter to the plaintiff rescinding the contract to purchase the land. The basis alleged for the entitlement to rescind concerned alleged defects in the Form 1 and no reference was made to the concept plan and what was said to the defendants on 23 October 2013.
The plaintiff did not formally respond to the defendants’ solicitors letter, placed the land on the market again for sale and it was sold in February 2014. The deficiency between the sale price in 2014 and the contract price with the defendants is $188,459.50. The plaintiff sues for damages in this amount together with other ancillary relief.
Whether the plaintiff through her agent disclosed the concept plans to the defendants at the site visit on 23 October 2013;
Whether the concept plans were misleading because of the treatment thereon of the area of the easements on the land;
Whether the plaintiff’s agent drew the defendants’ attention to the content of the concept plans and in particular the way that the architect had dealt with the easements on the land and whether such conduct was misleading;
Whether the defendants were misled by the content of the concept plans;
Whether the delivery of the Form 1 and copies of the Certificate of Title to the defendants had the effect of disabusing the defendants of any misleading effect of the concept plans and what was said by the plaintiff’s agent;
Whether the misleading effect of the concept plans was continuing notwithstanding the defendants receiving the Forms 1 and the copies of the Certificate of Title;
Whether the defendants relied upon what they saw on the concept plan and were told on 23 October 2013 when executing the contract for purchase on 9 November 2013 so that the events of 23 October 2013 had a continuing effect upon them;
Whether by the letter of their solicitors of 8 December 2013 the defendants rescinded the contract of 9 November 2013;
Whether in equity the defendants were entitled to rescind the contract;
Whether upon receipt of the defendants’ letter of 8 December 2013, the plaintiff was entitled in any event to put the land back on the market for sale and to sell the land;
Whether the failure by the plaintiff to respond in a formal way to the letter of the defendants of 8 December 2013 in any way estops the plaintiff from making any claim against the defendants for damages or constitutes acquiescence by the plaintiff which removes the plaintiff’s right to proceed against the defendants for damages.
Held:
1. The plaintiff through her agent and in her presence disclosed to the defendants the architect’s concept plans for the land on the site visit on 23 October 2013;
2. The concept plans were misleading because they purported to show building works upon part of the area covered by the easements and such work was prevented by the easement except with the permission of SA Water.
3. The plaintiff’s agent, in the presence of the plaintiff, drew the defendants’ attention to the way the architect had dealt with the easements by placing decking across the (incorrectly narrowed) easement area. The architect’s concept plans falsely conveyed the impression that the easements affected only a narrow strip on the land about 3 metres wide.
4. The defendants were misled by the content of the concept plans and what was said by the plaintiff’s agent because those plans purported to display an ability of the owner of the land to construct building works upon the easement area which was not possible without permission of SA Water and no such permission had been obtained.
5. The delivery of the Forms 1 and copies of the Certificate of Title had no effect upon the misleading nature of the concept plans, the effect of which was continuing.
6. The defendants relied upon what they saw in the concept plans and what they were told on 23 October 2013 when they executed the contract for purchase of the land.
7. Notwithstanding that the letter of 8 December 2013 did not properly specify the ground upon which reliance may be placed to rescind the contract in equity, the letter was effective to rescind the contract.
8. In equity, the defendants were entitled to rescind the contract of purchase.
9. Upon receipt of the letter of 8 December 2013 the plaintiff was entitled to place the land on the market and sell it for the best price obtainable and it was not necessary for the plaintiff to respond to the defendants’ letter or separately to strictly observe any of the terms of the contract when so doing.
10. The actions of the plaintiff after 8 December 2013 do not give rise to any form of estoppel nor do they constitute acquiescence.
11. The plaintiff has no entitlement to damages due to the proper rescission by the defendants of the contract for purchase of the land.
12. The plaintiff’s claim is dismissed.
The Court will hear the parties as to costs and any other consequential orders.
Cheshire and Fifoot’s Law of Contract in Australia Seddon, Bigwood and Ellinghaus, 9th ed. Pp 517-518, paragraph 11.37.; Trade Practices Act s 52, s 53, s 82(1B) TPA, s 87; ASIC Act s 12GF(1B); Australian Consumer Law s 18; Law of Property Act s 16 ; Environmental Planning and Assessment Act 1979 (NSW) s 149; Watts “Rescission of Guarantees for Misrepresentation and Actionable Non-Disclosure” (2002) 61 CLG 301; Carter and Tolhurst “Rescission, Equitable Adjustment and Restitution” (1996) 10 JCL 171; Wright: “Fiduciaries, Rescission and the recent changes to High Court’s Equity Jurisprudence” (1998) 13 JCL 166; Robertson: ”Partial Rescission, Causation and Benefit” (2001) 17 JCL 163; Meikle, “Partial Rescission – Removing the Restitution from Contractual Doctrine” (2003) 19 JCL 40; O’Sullivan, “Partial Rescission for Misrepresentation in Australia” (1997) 113 LQR 16; Misrepresentation Act s 8; The Honourable Peter Young AO, Clyde Croft (Justice of the Supreme Court of Victoria) and Megan Louise Smith, "On Equity" Law Book Company 2009, paragraph 11.430, referred to.
Argy v Blunts and Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112; ACCC v TPG Internet Pty Ltd [2013] HCA 54; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277; Kabwand Pty Ltd v National Australia Bank Limited (1989) ATPR 40-950; Gould v Vaggelas (1985) 157 CLR 215; Sutton v AJ Thompson Pty Ltd (in liq) (1987) 73 ALR 233; Henville v Walker (2001) 206 CLR 459; I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102; Akron Securities v Illiffe (1997) 40 NSWLR 353; Holland v Wiltshire [1954] 90 CLR 409, discussed.
Myles Pearce & Co. v Leuci & Ors. [1997] SASC 6360; Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193; Donaldson v Freeston (1929) 29 SR (NSW) 113; Attwood v Small (1838) 7 ER 684; Sagar v Closer Settlement Limited (1929) 29 SR (NSW) 199; Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357; Campbell v Back Office Investments Pty Ltd (2009) 238 CLR 304; Gould v Vaggelas (1985) 157 CLR 215; Australian Guarantee Corporation Limited v Sydney Guarantee Corporation Limited (1951) 51 SR (NSW) 166; Telmak Teleproducts (Australia) Pty Ltd v Coles Myer Limited (1988) 84 ALR 437; Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd (1996) 66 FCR 451; Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83; Nielsen v Hempston Holdings (1986) 65 ALR 302; Kewside Pty Ltd v Warman International Limited [1990] ASC 58, 821; Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700; Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No. 2) (1987) 16 FCR 410; Pavic v Bobra Nominees Pty Ltd (1988) 84 ALR 285; ANZ Banking Group Limited v Petrik [1996] 2 VR 638; NZI Capital Corp Limited v Poignand (1997) ATPR 41-586; GIO Australia Holdings Limited v Marks (1997) ATPR 541-544; Potts v Miller (1940) 64 CLR 282; Toteff v Antonas (1952) 87 CLR 647; Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1; Kitzbeau Pty Ltd v WG and B Pty Ltd (1995) 184 CLR 281; Flight v Booth (1834) 131 ER 1160; Jennings v Zilahi-Kiss (1972) 2 SASR 493; Permanent Trustee Co Limited v Bernera Holdings Pty Ltd [20014] NSWSC 56; Cashman v 7 North Golden Gate Mining Co (1897) 7 QLJ 152; Orr v Ford (1989) 167 CLR 316; Glasson v Fuller [1922] SASR 148; Edmunds v Pickering (No. 3) (1999) 75 SASR 407; Redgrave v Hurd (1881) 20 Ch D 1; Preda v Australian Imagining and Ultrasound Distributors Pty Ltd [2007] NSWSC 155, considered.

OSMAN v LOCKYER & ORS
[2016] SADC 56
Summary and result

In this action the plaintiff was the registered proprietor of a vacant block of land situated at 20 Blyth Street Glen Osmond (“the land”). She became the sole owner of the land on 10 October 2013; prior to that time she had been a joint registered proprietor of the land with her former husband. The plaintiff decided to sell the land.
On or about 14 October 2013 the plaintiff retained Michelle Alexandrou of the firm Toop and Toop as her agent. The day before, the plaintiff retained Damian Campagnaro, architect, to produce architect’s concept plans to be used as part of the promotions of the sale process. These plans were intended to show how the block may be improved by an intending purchaser. On 15 October the plaintiff instructed Michelle Alexandrou to instruct Campagnaro to prepare concept plans showing how the land could be developed. Michelle Alexandrou instructed Campagnaro to produce concept plans and produced to him an existing garden plan held by the plaintiff. By that time Campagnaro had been to the land to re-familiarise himself with it, he having been there previously at the behest of the plaintiff and her former husband. At the time that Alexandrou instructed Campagnaro she had obtained copies of the Certificate of Title of the land.
The Certificate of Title disclose two relevant easements on the land in favour of SA Water covering about 30% of the total surface of the block. The plaintiff knew of the easements as did Alexandrou however Alexandrou relied upon the plaintiff to be fully aware of the extent of the easements. This was despite Alexandrou holding copies of the Certificate of Title for the land which disclosed the full extent of the coverage of the easements over the land.
The land was advertised for sale and on 22 October 2013 the defendant Ms Lockyer became aware of the advertisement: the defendants were seeking to develop land in that area for a family home. Alexandrou was aware of the defendants from earlier open inspections of other properties for which she held an agency. Contact occurred and an arrangement was made for the defendants to inspect the land on 23 October 2013; Alexandrou had not inspected the land before that date. Alexandrou insisted that the plaintiff be present to answer any questions about easements or boundaries that may arise. This was an unusual arrangement for Alexandrou because she usually did not facilitate contact between vendor and potential purchasers.
The plaintiff contends that at this meeting at the land she informed the defendants of the location and size of the easements as well as the boundaries. The defendants contend that at this meeting the plaintiff, through Alexandrou, presented to them the concept plans drawn by Campagnaro which disclosed the capacity to build upon areas covered by the easements. The plaintiff denies that such plans were presented.
The defendants contend that they received the concept plans, believed their content, relied upon them and were misled by them. That is the case even though on 24 October 2013 the defendants received the Form 1 and a copy of the same Certificate of Title held by Alexandrou since between 16 and 18 October 2013. The defendants read the Form 1 and saw the Certificate of Title but the ongoing effect of the misrepresentation in the concept plan meant that they did not comprehend the content of those documents and they did not identify the correct position about the easements. Relying upon the concept plans and the misrepresentation in them, the defendants purchased the land at auction on 9 November 2013, with settlement on 9 December 2013.
Shortly prior to 9 December the plaintiff ascertained the true position about the easements and gave notice of rescission of the contract. In due course the plaintiff resold the land without responding to the plaintiff’s notice of rescission of the contract of purchase. The plaintiff sues for damages being the difference between the contract price and the subsequent sale price.
The plaintiff through her agent provided the concept plans to the defendants on 23 October 2013. The defendants were misled by the content of those concept plans and the effect of that misleading conduct was continuing. One effect was that the defendant did not properly read or understand the contract, the Form 1 and the Certificate of Title.
The misleading effect of the misrepresentation was ongoing and in equity the defendants were entitled to rescind the contract of purchase. The claim of the plaintiff fails and is dismissed. The defendants are entitled to receive the amount of their deposit.
Introduction
In 2013, the plaintiff in this action, Lynette Dawn Osman (Osman), was the owner of a block of vacant land comprised in Certificate of Title registered as Volume 5622 Folio 686, more commonly known as 20 Blyth St Glen Osmond.
The block runs in a general east west direction, and falls from east to west. The lowest point of the block is on Blyth St. The frontage on Blyth St is about 32 metres in width. The rear boundary is, in two parts, about 50 metres in width, so that the block is largely wedged shaped. Adjacent to the north western boundary of the block, is a pumping apparatus. That pumping station is managed by SA Water, and it is associated with a further pumping station, which is situated on what otherwise, would be the footpath or the verge of the Blyth Street frontage. There are underground pipes that connect the pumping station to what is called a water chamber on the verge of Blyth Street. Those pipes are associated with the supply of desalinated water and the plan for the connection for the various reservoirs in Adelaide to ensure continuity of supply of fresh water to the Adelaide Metropolitan area.
There are three easements on the land, only two of which are relevant for current purposes. The first is marked “A” on the Certificate of Title. It is an easement for water supply purposes in favour of SA Water. The second easement is also in favour of SA Water for sewage purposes. The easements are disclosed upon the Certificate of Title.[1]
[1] Exhibit P1 page 273.
The Certificate of Title demonstrates that easement “A” runs essentially from the northern fence line of 20 Blyth Street to a line about 1/3 of the way across the block, along a line running in a general east-west direction down the block. The northern fence line is the adjoining fence line between number 20 and 22 Blyth Street.
The second easement, marked “B” crosses over easement “A”. There is therefore, an area of easement marked “A”/“B” and the balance of the easement is shown as easement “B”. On the Certificate of Title and its enlargement there are three dotted lines that evidence the easements. The third dotted line shows the southern extent of easement “A”, which is situated between the two dotted lines that measure easement “B”. The northern dotted line, and the middle dotted line, discloses the overlap of easement “A” and easement “B”. The southern dotted line discloses the southern boundary of easement “B”.
The whole block of land consists of some 2,116 square metres. It was generally agreed that the area of the two easements combined constitutes 30% of that area of land. There was also no contest between the parties that the terms of the easement prohibited any form of building development upon the area of the easements. It follows that any owner of the land would be prohibited from developing the land for building works on any area north of the southern boundary marking easement “B”; it is only the land that sits south of that easement boundary upon which the development may take place. The Certificate of Title also contains an enlargement which shows the extent of easement “A”, the crossover of easements “A” and “B”, and the extent of easement “B”. Easement “B” measures approximately three metres in width, and easement “A” extends to the northern fence line of 20 Blyth Street.
From 2002 Oguzatay Osman and Lynette Dawn Osman (the plaintiff) were registered as the proprietors in fee simple of the land at 20 Blyth Street. The Certificate of Title discloses the easements and other endorsements. Oguz and Lynette Dawn Osman had, prior to 2012, been married, and in or about 2012 their marriage was dissolved. They had previously lived at the property at 18 Blyth Street Glen Osmond. They had purchased the land at 20 Blyth Street on or about 10 February 2002.

The actual terms of each of the easements that are registered on the land are not in evidence before me. It is therefore, unclear to me when those easements were registered but it appears that they were registered, in or about 2000 - 2002. The SA Water easements appear to serve two purposes, protection of the piping carrying desalinated water into the Adelaide water system and the interchange piping for coordination of the three principle reservoirs supplying water to the Adelaide metropolitan area.
The plaintiff Lynette Dawn Osman sues the first and second defendants in relation to a contract for the sale and purchase of the land entered into on 9 November 2013. On that day the parties entered into an unconditional agreement in writing for the defendants to purchase the land for the sum of $720,000. The contract was entered into by the defendants with the plaintiff after an auction of the land held on that day. Prior to the auction, the defendants had made a cash unconditional offer to the plaintiff to purchase the land for the sum of $720,000. The plaintiff rejected that offer for reasons which are not relevant here. The plaintiff insisted on the land going to public auction.
When the auction was held on 9 November 2013, the defendants were the only bidder at the auction. At the auction, the plaintiff made a vendors bid of $735,000. There was no greater bid than that amount, and, in the circumstances where no party was prepared to bid above $735,000, the defendants were asked by the plaintiff’s agent to put their bid for $720,000. That bid was re-submitted in accordance with that request and the land was knocked down to the defendants for the bid price of $720,000.
The firm of Real Estate Agents, Toop & Toop Real Estate Group Pty Ltd (“Toop”), acted as the real estate agents for the plaintiff. The agent handling the plaintiff’s business was Michelle Alexandrou (“Alexandrou”). The auctioneer at the auction was Mr Anthony Toop.
It will be necessary to recite the history of the involvement of the defendants in considering the land which commenced from early October 2013.
Exhibit 7A before me, is a statement of agreed facts. There was an amendment to the agreed facts 6 and 13 and an addition to agreed fact 37 from the original Exhibit 7. It is helpful to identify these agreed facts because the amendments to the agreed facts highlight one important feature of this matter for decision. That fact revolves around whether or not, at a meeting at the land on 23 October 2013 at which the plaintiff, Alexandrou and the defendants were present, Alexandrou provided to the defendants a copy of A3 sized concept plans drawn by an architect on the instructions of the plaintiff, together with a copy of a garden plan. At the heart of the defendants’ defence of this matter, is the allegation that the provision of the A3 sized concept plan was misleading conduct upon which reliance was placed on the defendants and which would entitle the defendants to avoid the contract for sale and purchase of this land. One of the concept plans showed an easement area of some 3m in width and the construction of a swimming pool on the area of the easement “A” adjacent to the northern fence line of the land. This is the concept plan to which reference will be generally made in the balance of this judgment.
I will in due course, record the material within the statement of agreed facts, but it is first necessary to identify that the plaintiff claims that she has suffered loss and damage as a consequence of the failure of the first and second defendants to honour and settle under the contract for sale and purchase of this land. When the defendants first refused to settle upon the purchase of the land, there was some negotiation between the parties, but by letter dated 8 December 2013[2] the defendants gave notice to the plaintiff that they rescinded the land contract and demanded repayment of the deposit. They asserted that the fact and location of the easements was not included in the site plan forming part of the sales brochure prepared by the agent Toop, being a document given to the defendants. As the evidence developed, this was not a matter of any moment. Further, the defendants alleged that there was no adequate description of the easements included in the Form 1 prepared by Toop, and that easements were not attached to the Form 1 as required by the regulations. Again as the case developed this was not a matter of moment. This matter was contested on the basis of the content of the concept plan and what was said on 23 October 2015. I will proceed accordingly as the plaintiff raised no issue about this topic.
[2] Exhibit P2 vol 2 tab 94.
The plaintiff alleges that the rescission amounted to an unlawful repudiation which was accepted by the plaintiff as constituting a breach of the land contract, and as a result, the plaintiff re-sold the land on 18 February 2014 for the sum of $525,000; after costs and agents fees, the sum of $507,274 remained for the plaintiff. As a result, the plaintiff alleged that she had suffered loss and damage in the amount of $188,459.50, because, on her estimations, she would have received the sum of $695,733.50 in the event that the defendants had settled upon the 9 November 2013 contract.
The plaintiff also alleged that if the defendants had settled upon the 9 November 2013 contract, that the plaintiff would have applied the full proceeds in reduction of a $1.1 million investment property loan which she held with the Westpac Banking Corporation in respect of a property at 1A Alfred St Norwood, upon which she paid interest at the rate of 5.08%. The plaintiff calculated that the losses sustained as a result of not being in a position to discharge the loan using the net proceeds of the sale price generated through the sale of the defendants was in the amount of $13,749.98, plus loss of use of the monies in the amount of $188,459.50.
The defendants claimed that they were entitled to rescind the contract because the plaintiff, or her agent, supplied to them plans and drawings that purported to show that the two easements on the land in favour of SA Water Corporation were limited to a thin strip of land on the land of approximately 3 metres in width. The defendants also allege that the plaintiff’s agent Alexandrou, orally represented to them that the SA Water easements were limited to that thin strip of land of approximately 3 metres in width. As a result it would have been impossible for the first and second defendants, if they had purchased the land, to build a swimming pool, or other structure, on the northern side of that thin strip of land and within the area covered by easement “A”, and up to the fence line of the land at 20 Blyth Street. The defendants claim that each of those representations were false and that the Form 1 vendor’s statement was defective because it identified the SA Water easements only by referring the recipient to a copy of the Certificate of Title and failed to identify the nature and extent of the restricted covenants contained in the easements. The defendants claim that their rescission was valid and lawful because the representations were misleading and deceptive, the defendants relied upon the representations in executing the contract, and, if they had known the truth about the position they would never have offered to purchase the land for that price, or any price.
The defendants also alleged that there was some acquiescence on the part of the plaintiff in their rescission because the plaintiff failed to respond to their notice of rescission for a period of 5 months and merely set about to re-sell the land. They allege that the plaintiff ignored letters from solicitors, failed to serve upon the defendants notices to complete, relisted the land for sale without notice, entered into a further contract to sell the land and settled upon it without purporting to terminate the land contract. The plaintiff also received notification from the defendants that they treated the conduct of the plaintiff as accepting the notice of rescission.
The defendants also allege that if their rescission was not valid, then the plaintiff was required to give notice whether she elected to enforce the land contract, or terminate it. The plaintiff failed to give them notice, the plaintiff failed to comply with clause 9 of the contract, which provided a mechanism to terminate the contract and by re-listing the land for sale, entering into a new contract for sale and effecting settlement. They allege that the plaintiff breached the contract and caused her own alleged loss. Therefore, no remedy is available to the plaintiff against the defendants.
The plaintiff’s evidence
The plaintiff’s first witness was the agent Alexandrou. In October 2013, Alexandrou was familiar with the defendants because she had met them at an earlier open inspection. She knew that the defendants were looking for vacant land to develop and, as a result, when she was retained as agent for the land she rang the defendants to inform them that it was coming up for sale.
The block was made available to the defendants for inspection on 23 October 2013. Alexandrou had only been to the block once previously, but it was on a 42 degree day and she had not walked across the block for fear of snakes and other vermin. The evidence before the Court does not suggest that this was an “open inspection” day but nothing seems to turn on that fact. The arrangements for the inspection were made between the defendants and Alexandrou.
The plaintiff was present at the inspection on 23 October 2013. Alexandrou had insisted upon this because she was not clear of the boundaries of the land and wanted the plaintiff there to show here where the boundaries were. It was not the usual practice for Alexandrou to have the vendor and prospective purchaser at the land at the same time.
The parties all met on site. Alexandrou met the defendants at the bottom or western end of the block. Present then were the defendants, along with their daughter Anna and Alexandrou. Alexandrou and the defendants walked to a point about half way up the block. There they met with the plaintiff (Osman). They noticed that there were some pegs on the land but Alexandrou cannot recall how many there were. She thought that there might have been 3 or 4 around the place marked with a pink ribbon. Alexandrou said that she thinks there was some discussion about the easements on the land and she thought that Osman showed the parties where the easements were. The plaintiff showed to the defendants and Alexandrou where she thought the boundaries were and where she thought the easement was, as Alexandrou was unclear on that. It is apparent that Alexandrou had not closely perused a copy of the Certificate of Title prior to 23 October 2013 because she did not know where the easements were on the block. Alexandrou could not remember whether the defendants were present when the plaintiff was describing the boundaries. She was also unclear where the easements were and she thought that the plaintiff showed her where the easements were on the Title. She did not recall there being any discussion about the easements covering a 3 metre wide strip of land but she is unable to recall whether the plaintiff said anything to the defendants about the easements being 3 metres wide. She recalled the plaintiff talking about the fact that she had lived next door at 18 Blyth Street, that she and her former husband wanted to buy the land, they had bid earlier but missed out and bought it the second time it had become available.
She recalls there being a mention of Damien Campagnaro (“Campagnaro”), an architect. Alexandrou said the plaintiff had earlier told her that she had engaged Campagnaro, that she had met him on the site of the block and there had been discussions about building on the block. Campagnaro had been retained to provide some conceptual site plans. Alexandrou said that she was instructed by the plaintiff to ask Campagnaro to prepare some concept plans.[3] This was all part of the promotions for the sale of the block. Campagnaro had agreed to prepare a concept plan and asked that the purchasers contact him. Alexandrou recalled that she knew the defendants did not like the architectural plan, although they were happy to see what was there. She obviously did not obtain this understanding until after the defendants had seen the plans. The timing of that event is crucial in this action.
[3] T38.33.
Alexandrou recalled sending an email copy of the concept plans prepared by Campagnaro to the defendants.[4] She also sent photographs of other work done by Campagnaro. This material was sent on 24 October 2013.[5] Alexandrou confirmed that other concept plans were included on the advertisements for the land at realeastate.com.au[6] and this material contains a site plan.[7] There was also a video[8] that had been prepared by Campagnaro in which he explained his design concept. If someone clicked onto the particular concept plan, the video would play. The concept plans comprised three A3 sheets.[9] All of these three plans were to be found upon the advertisement on realestate.com.au. Alexandrou also confirmed that the land went online on about 22 October 2015. She could not confirm whether or not it was Ms Lockyer who contacted her having seen the land on the realestate.com.au advertisement.
[4]    P2, Volume 1, tab 36.
[5]    T40.20; P2, Volume 1, tab 42.
[6]    P2, Volume 2, tab 83.
[7]    Pp 331 and 332.
[8]    Pp 341.
[9]    Exhibit P2, Volume 2, Tab 150 and 151.
In cross-examination Ms Alexandrou confirmed that she knew that the land had not been transferred into the sole name of the plaintiff until 10 October 2013, some two weeks prior. She knew that prior to that, the land had been in joint names of the plaintiff and her former husband and that the land came into the sole name of the plaintiff as a result of a matrimonial settlement. She agreed that she met the plaintiff on or about 14 October 2013, and she had with her a document which was a Toop team marketing planner.[10] That document sets out all of the enquiries that are necessary to be made of the vendor when retained to sell a property. That was prepared on or about 14 October 2013, which was the day that Alexandrou first met the plaintiff. It identified that the plaintiff needed to supply to the agents a copy of the Certificate of Title and on the first day on which the plaintiff met with Alexandrou, the copy of the Certificate of Title was available. Despite this, on 23 October 2013 Alexandrou wanted Osman present on site to point out the boundaries and the easements.
[10] Exhibit P2, Volume 1, Tab 9.
The next day, (15 October 2013) a sales agency agreement[11] was signed by the plaintiff. Alexandrou informed the Court that the Toop vendor questionnaire is supplied and completed for the purpose of preparation of a Form 1. She confirmed that Toop outsourced the preparation of the Form 1 and therefore, the questionnaire is for the purpose of gathering as much information as possible so that the Form 1 is accurate.
[11] Exhibit P1, Volume 1, Tab 15.
A portion of that questionnaire, under heading “C”, contained questions about matters affecting the land.[12] The fourth question in the questionnaire enquires whether there is any encroachment or easement. The document is completed in handwriting as “not sure”. Alexandrou confirmed that on 14 October 2013 when she was speaking to the plaintiff about these matters, the plaintiff was not sure about the easements and the boundaries and whether the fences were on the boundaries. She thought this particular question was more to do with fences on boundaries because by that time, she had not looked at the land to know what structures might have been there or other matters. She was aware that there was a blue pumping station situated somewhere in the north east corner of the land, or in the immediately adjoining property but she was not sure. However, Alexandrou also confirmed that the plaintiff attended the open inspection to assist her because she, Alexandrou, did not know where the easements were in their entirety.[13] She said that she would not normally have a vendor and purchaser together but this was an exceptional case because of the presence of the easements on the land and she was not going to take a buyer and tell them where something was about which she had no idea. It was for that reason that she insisted that the plaintiff meet them on site and show them the position of the easements. Therefore, the reason to meet on site was not merely to do with the boundaries but everything to do with the entire block. That included the extent of the easements.
[12] Exhibit P1, Page 35.
[13] T63.13.
Alexandrou also gave evidence about her approach in relation to selling the land. She said that she had previously had experience in running her own company and therefore she was familiar with the approach of preparing concept plans. She said that it was not uncommon with vacant land for architects to prepare drawings so that people could consider the land and the context of those drawings in order to assist them in making their decisions. She agreed that it was a part of the marketing campaign of the land that there would be these concept drawings so that the land could be shown in the best possible light.[14] This was at the behest of Ms Osman.
[14] T66.1-10.
Ms Alexandrou was closely questioned about her first conversation with the defendant, Ms Lockyer. It was suggested to her that she told Ms Lockyer that she was about to pick up some concept plans for the block in her first conversation with her on 23 October 2013. Alexandrou could not remember that conversation. She could not say one way or the other whether she said those words to Ms Lockyer. She could not agree or disagree with the suggestion that she said those things to Ms Lockyer on 23 October 2013. Nor could she agree or necessarily disagree that she showed Ms Lockyer a copy of the concept plan at their meeting on site on 23 October 2013. Her initial evidence was that she vehemently rejected any such suggestion but on reflection, she could not say one way or the other.
Alexandrou also recalled sending a copy of the garden plan to Ms Lockyer.[15] The plaintiff had provided a copy of the garden plan to Alexandrou as part of the marketing materials that she was to have in her possession. Alexandrou agreed that she had sent the garden plan to Campagnaro the architect by email on 23 October 2013. She knew that Campagnaro had been to the site previously with the plaintiff and he would also have had a copy of the Title.[16] She said that she met Campagnaro on site on or soon after the day on which she listed the land, which was the Monday. She had contact with him on the Tuesday, they met immediately on site and she was certain that he had a hard copy of the Certificate of Title when she met him on site.[17] From her memory, Campagnaro drafted the concept plan on the 23^rd or 24^th October and, therefore, she would have met him on site on Wednesday or Thursday (16 or 17 October). Campagnaro wanted to meet her on site to re-familiarise himself with the block that he had seen several years earlier when the plaintiff had purchased it. Alexandrou thinks that she gave Campagnaro a copy of the Certificate of Title when she met him on site. She agreed that she did not have the Certificate of Title until Toop listed the land and until she had the sales agency agreement in place.[18] The sales agency agreement was not signed until the 16^th and, therefore, she thinks she gave a copy of the Certificate of Title to the architect between 16 and 18 October 2013.[19]
[15] Exhibit P2, Volume 1, Page 84.
[16] T72.21.
[17] T72.32.
[18] T73.30.
[19] T73.2-T74.25.
In cross examination Ms Alexandrou recalled meeting at 20 Blyth Street on 23 October 2013 but she could not recall whether she had the concept plans with her at the time they had the meeting on 23 October 2013.[20] She could not recall saying to the defendants that she was very excited about the concept plans and that they met the plaintiff half way up the block, as the plaintiff had come from the back of the block (from the eastern side). Ms Alexandrou could not recall whether she had the A3 concept plans drawn by the architects in her hands at the time of the meeting.[21]
[20] T76.35.
[21] T77.27; Exhibit P2, Volume 2, Tab 151.

When giving evidence, Ms Alexandrou was shown the concept plans and it was suggested to her she had those documents with her at the block on 23 October 2016. Initially Ms Alexandrou denied that proposition.[22] She denied saying to the group that they should see the concept plan, and she also denied saying that it was amazing what the architect had done to get around the easement.[23]
[22] T78.9.
[23] T79.8 - 14.
Ms Alexandrou agreed when looking at Exhibit P2, volume 2, page 612 that the pool depicted on the plan could not be built at that spot because of the easement and this perhaps pointed to the fact that she did not have the plans on site. She thought when she received them from the architect she had sent them in an email to Ms Lockyer on 24 October 2013. She said that she gained an understanding from what the plaintiff said on site on 23 October 2013 about the full extent to the easement.[24] She agreed that all of the surveyor’s pegs were not in place, and she was very keen to get the plaintiff to ensure that the pegs were in place, so that anyone inspecting the block knew where the easements stood.
[24] T83.28.
Ms Alexandrou had an understanding that the easement covered about one third of the block on the northern side.[25] She could not explain why it was that she would then upload onto the computer website concept plans which showed a swimming pool on the easement when it could not be built there. Her response was that it was all to do with the deck.[26] However, Alexandrou also recanted slightly on this evidence by saying, that on 23 October, what she knew of the easement was what the plaintiff had shown her but she now agrees that the swimming pool on the concept plan is in the middle of the easement and could not be built there. She agreed that nowhere in the promotional material was it said that any purchaser could not build in accordance with the concept plan. Ms Alexandrou said in cross examination that she did not understand there to be any problem (with full knowledge of the extent of the easement which she implied she had) with putting up a concept plan on a website, which shows a building which cannot be built.[27] When confronted with that fact, Ms Alexandrou said that she did not understand the full extent of the easement[28] and that she gained no understanding from the plaintiff on 23 October as to the extent of the easement.[29] She agreed that if she had known of the extent of the easement, she would never have allowed the concept plan to be placed upon the internet.[30] This was because she was aware that there was a potential to mislead people and because she allowed things to go forward only because she was unaware of the full extent of the easement. She also said that she thought that the easement was not marked up properly on 23 October (and subsequently) and she was concerned about that because she had said to the plaintiff on several occasions, that she had to get onto SA Water to make sure the easement was properly marked out. This was because she wanted to ensure that people could properly understand where the easement was situated. She said all of this to the plaintiff on 23 October.[31] From her point of view, she wanted to ensure that that easement was properly pegged out. It had not been done at the time of the inspection, and that was something that needed to be done subsequent to inspection.
[25] T84.6-16.
[26] T84.20.
[27] T85.3-.7.
[28] T85.11.
[29] T85.18.
[30] T86.9.
[31] T86.25 – T87.4.
Exhibit D8 is a copy of an email chain passing between Alexandrou and Campagnaro. The last email in the chain discloses that the meeting between Alexandrou and Campagnaro occurred at 11.15 on 17 October 2013. Prior to that time, Campagnaro had been sent copies of the gardening plan and he had requested but could not be provided with a contour plan of the site. Once she was shown Exhibit D8, Alexandrou was able to recall that she prepared the promotional video on Friday 18 October. Reference was also made to Exhibit P2, tab 22, page 78, an email from Alexandrou to the plaintiff. The fourth paragraph of that email suggests that Campagnaro had prepared the concept plan. Alexandrou was not able to say whether that refreshed her memory as to whether or not the plan was in her hands at the time. She was able to say that she would not have prepared the advertisement, including the reference to the architectural concept plans, unless she had everything ready to go.[32] She also could not say, one way or another, whether she had said to Melissa Lockyer before meeting on 23 October, she was just about to go and pick up the concept plans from Campagnaro.
[32] T91.35.
Notwithstanding, Alexandrou recognises that when looking at the concept plans, she understood that the architect was proposing to put a decking over a narrow easement, and to build a pool on the area of easement “A”, as if easement “A” did not exist.[33] She agreed that there was nothing that she learned at the site visit on 23 October 2013 that led her to think the swimming pool could not be built at the place that Campagnaro suggested. She does recall that on 23 October there was reference to survey pegs. She said that they were not survey pegs that Toop had commissioned, they were associated with work done by the plaintiff and the plaintiff explained that not all of the survey pegs were in place as SA Water had not done what she had asked them to do. She could not say one way or the other, whether she could identify a peg at the back of the block and know whether it was the rear boundary. She knew nothing about that and left that to the plaintiff. She does recall that all conversations about survey pegs took place in the presence of the plaintiff[34] and she cannot recall any conversations at the time where the plaintiff talked about the pegs being at the edge of the easement. Her recollection was that she was told that all the pegs were not in place but she does recall that the plaintiff did not say anything to the effect that the easement runs from the pegs to the boundary. If she had done that, she would have known that the concept plan was misleading.
[33] T93.21 - .34.
[34] T97.26.
Although Alexandrou is not able to completely recall clearly, she knows that she provided a Form 1 document to the defendants on 24 October 2013 and on that day she provided a copy of the Certificate of Title. There is no evidence, whether by way of copy correspondence, or email traffic, which suggests that a copy of the Certificate of Title had been earlier forwarded to the defendants.
Alexandrou also recalled that after the meeting on 23 October, the defendants and herself went to meet with a friend of Alexandrou’s called Tracey. They all went to the home of Tracey and there was a conversation about who should be retained as a builder and an architect. At that time, it became clear to Alexandrou that the defendants did not particularly like the concept plan that Campagnaro had prepared. That assisted Alexandrou to recall that it might well have been the case that she did have the concept plan with her on 23 October. She also recalls a discussion about Drew Edwards, a builder and the defendants wanting to build an Infiniti pool. In all of that, the greater likelihood is that on 23 October, the defendants had the concept plans in their possession.
Alexandrou gave evidence that at the auction, the Form 1 was available on site 30 minutes before the auction. There was also a bidder’s guide in a standard form prepared by Toop. This was a separate brochure and that contained a bidder number for those persons bidding at the auction. Prior to the auction, the defendant Ian Lockyer, had made a second inspection of the block. Ms Alexandrou was quite clear that at the time, she had a copy of the brochure prepared by Toop and she had given him a copy of the glossy brochure.
The plaintiff gave evidence. The plaintiff confirmed that she had negotiations with SA Water concerning boundary and other pegs.[35] She commenced an email correspondence with Vicki Radford from SA Water from about 15 October 2013.[36] She wanted to ensure that all survey pegs were in place before any inspection of the land. She had previously seen survey pegs in place on a visit earlier than 21 October 2013. She thought there were about 5-6 in place and she thinks that on the day of the inspection with Alexandrou and the Lockyers, those 5 or 6 pegs were still in place.
[35] Exhibit P2 vol 1 tab 27.
[36] Exhibit P1 page 91.
She gave evidence of the onsite meeting with Alexandrou and the defendants. She said that she pointed out where the surveyor’s pegs were and said that the surveyor’s pegs marked where the easements started and finished. She said that on that day, the defendants had with them a Form 1 document which had all of the easements written on it[37] although she raised a query with Alexandrou because the brochure which was produced did not have the easements shown on it. She received an assurance from Alexandrou that that was the way that brochures were prepared. The plaintiff said that there were general enquiries made of her by the defendants concerning the layout of the land and the defendants sought permission to go onto the land with their architects. I am satisfied on the evidence as a whole that on 23 October 2013 the defendants did not have in their possession a copy of any Form 1 document to do with this land.
[37] T122.28.
She said that in the discussions the topic of the easements came up and that she told the defendants that they could not build any permanent structure on the easements. In cross-examination, the plaintiff confirmed that she had been given a vendor’s questionnaire at the time that she signed the sales agency agreement.[38] She identified the fourth question about whether there were any easements over the land and she said that she could only vaguely recall a question about that. She acknowledged that Alexandrou had identified the answer as being “not sure”. She was asked whether on 15 October 2013 she was certain where the particular boundaries of the easements were or where the easements were placed. She said that that is why she got the surveyors to come onto the land and to mark out the easements. However, there was no evidence from the plaintiff indicating that she brought surveyors onto the land. Her enquiries were of Ms Radford at SA Water. She said the only thing she was not sure about was where the boundary was with the adjacent property number 22 Blyth Street. She wasn’t sure whether the fence was on the boundary and the whole of the boundary was not covered by a fence. She thinks that was the only matter she was unsure about as at 15 October. At that time she had not seen the Form 1 but she certainly knew that there was an easement on the block. When asked whether she had a clear idea about the size of the easement, she said that she had a rough idea how far it was.[39] However, she had already observed SA Water undertaking the piping operation and knew that those piping operations were connected with the desalination plant. That work had started in 2010 when SA Water had first announced their intention to come on to the land to do the piping work over the easement. It was at least from that time that she understood that there was piping work and under the land that existed or was to be installed by SA Water which was to be the subject of the protection of the easement.
[38] Exhibit P2 Vol 1 Tab 8.
[39] T133.12.
She could remember speaking to the defendants and telling them that they could not build any permanent structure on the easement. She knew this from her discussions with SA Water and she thought really the only thing that could be built on the easement was a driveway.
The plaintiff said that she had the discussions with Alexandrou and the defendants about the easements in about the middle of the block. Alexandrou was unable to give any evidence indicating any conversations that occurred concerning the size of the easements and Alexandrou left those matters entirely with the plaintiff. Different from the evidence given by Alexandrou, the plaintiff said that a discussion did take place between the defendants and Alexandrou about the easements during the site inspection and she recalled Alexandrou saying words to the effect that the surveyor’s pegs were in position to show the prospective buyer where the boundaries of the easement were. She did not recall Alexandrou saying anything to the effect that the easements were only about 3 metres wide. She denied that anything of that nature was said during the conversations at which she was present. She does not know what Alexandrou might have said to the defendants when they were not in earshot of her.
The plaintiff also confirmed that she instructed Alexandrou to retain Campagnaro the architect to draw up concept plans. She had a meeting with Campagnaro and then arranged for Alexandrou to contact him directly. She said that she was aware that Campagnaro had done some work, she said that she only saw a computer image of what he did and said that she did not see the floor plan until after the defendants had rescinded the contract. She said that she was horrified to see the swimming pool on the easement. No one sought her approval before those documents were put on the internet. She accepted that the documents put on the internet were the concept plans prepared by Campagnaro which showed the positioning of a pool on the area covered by the easement. She did not give permission for that to be put on the internet.
In cross-examination, the plaintiff said that she did know there was an easement on the block but she didn’t know the true extent of the easement.[40] She knew roughly how far it was because she watched SA Water put the pipes in and saw the amount of work they were doing on the block. She understood that the work that she saw was associated with the desalination plant. That work commenced from about November 2010. In relation to that work the landscape plan was prepared sometime in August 2012. She gave that document to Ms Alexandrou in October 2013. That landscape plan was prepared by SA Water at her behest after she had raised issues concerning the damage that SA Water were doing to her land when they were laying the pipes across it. She also wanted to provide these plans as well as the architects concept plans to put the block in the best possible light for any potential purchaser.[41] This would ensure that she achieved the greatest possible sale price. To that end, she had one meeting with Campagnaro at the Central Market sometime after 15 October 2013 and after the time she had engaged Alexandrou as her agent. It was she who authorised Alexandrou to provide Campagnaro with the landscape plan. This would give him something to work off for the concept plans.
[40] T133.6-.11.
[41] T136.38.
I have been able to discern that a comparison of both the landscape plan and the architect’s concept plans discloses the position of the area marked by the dotted lines. I was able to discern generally the dotted lines on the concept plan.[42] Neither plan indicates the placement of any easement outside of a dotted line nor does it suggest that the architect had any understanding of where the easement was placed. This is important. The architect obviously identified some dotted lines on the face of the landscape plan that he was given or on some other plan. Lines were then placed on the architect’s concept plan. Nothing was suggested within the architect’s plans to indicate that it was not possible to build a pool in the area as disclosed on the architect’s plan which sat outside of those lines on the plan.
[42] Exhibit P2 vol 1 tab 7.
One concern for the plaintiff was that from about 15 October 2015[43] she was complaining about the repositioning of the surveyor’s posts. She identified that some of the surveyor’s posts had been removed and those surveyors posts marked the easements on the block. The plaintiff did rely upon the surveyor posts being reinstated by SA Water because she wasn’t really sure one way or the other where the boundaries of the easements were situated. She only had a vague idea and that was based upon the work that SA Water had done on the block.[44] She thinks she did not provide the garden plan or the concept plan at the meeting on 23 October. She thought that the garden plan, the concept plan and the brochure were all delivered together.[45] She recalls that on 23 October a form of a brochure was given to the defendants by Alexandrou but it was only a preliminary one. All she can recall is that she had seen the computer image of the concept plan and she did not see the concept plans on paper up until the time the contract was rescinded in December of 2013.
[43] Exhibit P1 Tab 27 p92.
[44] T154.1-.6.
[45] T154.25.
I have difficulty in accepting this evidence of the plaintiff. The concept plans were to be used as a selling point for the land. The plaintiff authorised the creation of the concept plans. She met with the architect and entered into some form of retainer with him. On the instructions of the plaintiff the architect was directly instructed by Alexandrou and it was Alexandrou as the agent of the plaintiff who delivered the landscape plan to the architect. Alexandrou had received the landscape plan from the plaintiff. The further communication from the architect subsequent to that time was to seek the provision of an elevation plan, if it existed. The elevation plan would have been particularly useful to the architect to ensure that he could make a proper estimation of levels for the creation of a concept plan. All of this happened with the consent and on the instruction of the plaintiff. It would be highly unusual for the plaintiff never to actually see the concept plan, she having authorised it in circumstances where she wanted to use it as a form of inducement for interested buyers. I am unable to accept that evidence. It does not withstand scrutiny. I have formed the same view about the fact that the plaintiff purported to rely upon SA Water to reinstate surveyor’s pegs on the land. The obligation was upon the plaintiff to have a proper survey done of the land and she could not criticise SA Water if it failed to answer her requests about the surveyor’s pegs.
The plaintiff also understood that the concept plan was to be used in a video to be put on Youtube and she saw the brochure at the block on 23 October. She said she raised with Alexandrou the fact that the brochure didn’t show any easements. Alexandrou explained that away by saying that that was how it was done. The plaintiff said that she checked all of the marketing material before it went out to the market however she also said that she did not see the concept plan drawn by the architect apart from knowing that it was on the internet on the realestate.com.au website. She relied on the surveyor’s post as the boundary of number 22 as well as the surveyor’s post to indicate the placement of the easement. The plaintiff denied that the concept plans of the architect were with the parties at the meeting on the 23^rd and she also denied that Alexandrou said words to the effect that “it’s amazing what the architect has done with the easement”. She does not recall those words being said and she does not remember the concept plans or any drawings being available. She was adamant that the defendants received some form of brochure from Alexandrou onsite on the 23^rd of October.
She agrees that the concept plan is wrong because it was not possible to build a pool as identified in the concept plan. The plaintiff also denied that her evidence in which she said that she told the defendants that the easement ran from surveyed pegs to the boundary with number 22 was merely a reconstruction.
The brochure document does not show any reference to any easement.[46] The documents produced by Toop for the auction[47] warn all potential bidders that they should obtain advice in relation to the sale and purchase of the land. One recommendation was to obtain legal advice about the land. In the evidence, photographs were produced to depict where particular marker posts had been positioned. Exhibit P2 Volume One Tab 157 p653 show the pumping station which is east of the rear boundary of the block together with a marker post with a pink ribbon. I was told in evidence that the pink ribbon and the white top marker post indicate one measuring point for the rear of the block. That post is also visible at p654 of the same exhibit although it is difficult to obtain any perspective from that photograph or from photograph on p655. It is unclear whether the marker post on p656 of the same exhibit is the same post.
[46] Exhibit P1 Volume 1 Tab 152 p616.
[47] Exhibit P1 Volume 1 Tab 152 p618.

On the issue of the existence and placement of the surveyor’s pegs on the land, the defendants tendered Exhibits D9 and D10. It is very difficult to obtain any real perspective of size, dimensions or direction from either of these photographs. It is plain that Exhibit D10 is a view northwards towards the boundary fence with number 22 Blyth Street. In the immediate foreground of that photograph, in the middle and slightly to the right of a large tree, a surveyor’s peg may be identified. It is not clear whether there is any pink ribbon on that surveyor’s peg but it has a white top. If a view is then taken northwards towards the fence line, there are indications of what may be pegs with white tops positioned near the boundary but that is quite unclear. That may be simply forms of weeds and undergrowth or shrubs with white flowers. I am not able to make any finding as to whether there are any surveyor’s pegs along that boundary. The difficulty with obtaining any real assistance from Exhibit D10 is explained by a view of Exhibit D9. In Exhibit D9, the same tree in the foreground of Exhibit D10 may be seen but that tree is now situated quite a distance from the point the photograph was taken. The tree may be identified as being in the background of the photographs. Immediately to the right of that tree may be identified a post with a white top. There is no indication that there is any pink ribbon attached to the white top of that post. However, in the foreground of photograph D9, on the left hand side is a large mature Eucalypt. Immediately to the right of that Eucalypt or to the north of the Eucalypt tree is a surveyor’s peg. That surveyor’s peg is significantly to the south of the surveyor’s peg that may be identified in Exhibits D9 and D10 adjacent to the Eucalypt tree identifiable in the foreground of Exhibit D10.
There is no clear evidence from any witness about which surveyor’s pegs or posts were identified at the time of the inspection on 23 October 2013 apart from the surveyor’s peg at the rear of the land adjacent to the pumping station at pp653, 654, 655 and perhaps 656 of Exhibit P1 Tab 157.
The evidence discloses that Mr Iain Lockyer walked to the back of the block and had a conversation wherein the rear of the block was identified by a surveyor’s peg. That appears to be the surveyor’s peg identified on p653 of Exhibit P1 Volume 1 Tab 157. Also, it is impossible to identify whether there are any other surveyor’s pegs, for example, on the western boundary of the block and the surveyor’s peg shown on Exhibit D10 or between the eastern boundary of the block and the surveyor’s peg shown on Exhibit D10. The same comments apply in relation to the surveyor’s peg identifiable as standing to the north of the established Eucalypt on Exhibit D9. For example, the documentary evidence does not assist me to identify what was the easement line and whether it is the surveyor’s peg on the southern side of D9 or the surveyor’s peg in the foreground of Exhibit D10. It is not clear whether the surveyor’s peg in the foreground of Exhibit D9 measures the southern boundary of easement “B” or whether the surveyor’s peg in the foreground of Exhibit D10 represents the southern boundary of easement “B”. If I had to make an assessment, it would appear likely that the surveyor’s peg in the foreground of Exhibit D10 would mark the southern boundary of easement “B” however that is only speculation on my part and the evidence does not allow me to form any conclusion one way or the other on that topic.
It is to be recalled that the inspection in 2013 took place some three years after the work had been carried out by SA Water to put pipes across the block associated with the pumping of desalinated water up to the pumping station on the land east of the eastern boundary of the block. It was only on 15 October 2013 that the plaintiff became active in attempting to have survey pegs placed upon the land. She had only become the sole registered proprietor of the land on 10 October 2013. This was following a matrimonial settlement with her former husband. It was on 15 October 2013 that she commenced the email exchanges with Ms Radford at SA Water. Those email exchanges are inconclusive because it is not clear whether the plaintiff and Ms Radford were of one mind as to what the plaintiff required to be put on the block. I have already identified the exhibits in which are displayed photographic evidence of the existence of survey pegs. However whether that was the state of the block on the 15^th or on the 21^st or on the 23^rd of October is not clear. What is clear is that the survey pegs that are disclosed on the face of P2 Volume One Tab 157 and Exhibits D9 and D10 would tend to cause more confusion than resolution. What is also clear is that Alexandrou did not know the extent of the easements at the time she went onto the block on 23 October and she relied upon the plaintiff to accurately inform all present of the easements. Alexandrou did not give any evidence of being present at any conversation at which the plaintiff accurately described the easements or the portion of the block covered by the easements. That difficulty is compounded by the fact that the plaintiff gave evidence that at that time, the Form 1 was available. The certificate of title was within the Form 1. If that were the case, it would be surprising for the plaintiff to respond to any enquiry about easement to do any more than refer to the Form 1 document which she alleged the defendants’ possessed on 23 October 2013.
The evidence of the defendants
Both of the defendants gave evidence. Melissa Lockyer informed me that she was educated at Seymour College and then completed a Bachelor of Arts at Adelaide University. She has worked reasonably consistently for the National Australia Bank in an IT related role in the technology side of the operations of the bank. She and her husband Iain lived in Melbourne for about 10 years and in about 1999 they returned to Adelaide to live for some time. She informed me that her husband works from home and is absent both overseas and interstate for work reasonably consistently. She grew up in the Glen Osmond area and she was desirous of living in that area. She had some familiarity with easements because there was an easement of three metres in width running at the rear of the property that she owned with her husband in Glen Iris in Victoria.
In October 2013 she was actively looking for a property to purchase. She had an alert system on her computer which brought up alerts if a property satisfied particular criteria which she has prescribed. On 22 October 2013 she received an alert in relation to the sale of the land at 20 Blyth Street Glen Osmond. The alert disclosed the agent was Alexandrou and on 23 October 2013 she had telephone contact with Alexandrou. She had a clear memory that in that telephone call Alexandrou indicated that the Lockyers were on her list of people to contact for this block. In the initial conversation on 23 October, Alexandrou said to her that she was actually going to the architects that morning to pick up concept plans and an arrangement was made to meet at about 12:30pm at the block. Ms Lockyer recalled meeting Alexandrou at the bottom of the block and walking up through the block and met the plaintiff about halfway up the block.
At the time they initially met at the western curb side of the block, Alexandrou said something to the effect that she should “just wait until you see these concept plans. I have just picked them up and they are really exciting”. When they walked up to the middle of the block they reached a formed or ploughed terrace. That terrace can be seen on Exhibit D10. It was there that the concept plans were shown to both of the defendants. In his evidence, Iain Lockyer said that he was slightly annoyed by the approach of Alexandrou about these plans. He rather thought that she was artificially building tension about showing them the plans.
When they were shown the plans, Alexandrou said words to the effect that “the architect has done such a fantastic job (or amazing job) around dealing with the easement, look at the deck, look at what he has done. He has put a deck over the easement to join the house to the pool”.
Ms Lockyer said that the plan that they focused on was the floor plan because it identified the house, the deck and then the pool. She said that when they were looking at that plan, Alexandrou said words to the effect that they would need to check with SA Water to see whether they were allowed to build a deck over the easement. They were told that they could not build any permanent structure on the easement. Ms Lockyer said that when those conversations occurred, each of them, the plaintiff, Alexandrou and the defendants were all present. They had all met in the middle of the block. Ms Lockyer said that she received a copy of the concept plans during the conversation from Alexandrou.[48]
[48] Exhibit D11.
Ms Lockyer said that they had an opportunity to look at the plans on 23 October and they did not like the house plans but were very attracted to the whole concept of separating out portion of the house. Both of the defendants were interested in separating a work space for Iain Lockyer and they both had the idea of building the house on one side of the easement and then building the pool on the other side and behind the pool build a home office for Iain Lockyer. Central to that thinking was the positioning of the swimming pool and she had already made some enquiries about pools and had seen an Infiniti pool that greatly attracted her.
Ms Lockyer agreed that during the conversations there was mention of SA Water and obtaining approvals from SA Water. She was aware of the infrastructure surrounding the block which she assumed belonged to SA Water but in terms of approval, her understanding was that she would need to get approval to build the deck. The plaintiff had some input into those discussions and told them that they could not build permanent things on an easement but that was at the time they were looking over the concept plans and they indicated their own knowledge that they could not build permanent structures on an easement.
Ms Lockyer said that at no time did anyone point out to her that the easement stretched from some point on the block to the fence line with number 22. Her understanding was that the house could be built on the left hand side of the narrow easement and a further portion of the house could be built on the right hand side, separate from the main house. To that end, Iain Lockyer asked to see the back of the block so that he was then taken to the surveyed peg at the back of the block. They were both told by Alexandrou that even though it did look like a survey peg, it wasn’t a survey commissioned by Toop and the agent could not say what it reflected. It appeared to be consistent to what was shown on the concept plans as being an easement in the middle of the block.
Mr Lockyer said he saw the surveyor’s peg shown on the photograph Exhibit D9. He said he was not sure whether the back peg on the upper level of the block was the boundary peg or an easement peg but if the two pegs, namely those at the back and those in D9 and D10 were lined up, it would hit the boundary fence in the neighbour’s block on number 22 Blythe Avenue. It was assumed therefore that it was a boundary peg. He can recall a discussion with Alexandrou when they spoke of the concept plans and in particular the sweeping driveway after they had a discussion about the question of access and the difficulties they faced with getting access through the rear of the block. The concept plans made it imperative that rear access was obtained. There was also a discussion about the pumping station adjacent to the rear of the block and the fact that it only had a temporary fence around it.
Subsequent to all of those discussions Ms Lockyer recalls going to the home of a friend of Alexandrou and she recalls that Alexandrou made those arrangements over the phone. The person Tracey, the friend of Alexandrou, is a builder. All of them, Osman, Alexandrou and the Lockyers with their daughter drove to Tracey’s home in separate cars. She recalls she was given a tour of Tracey’s home and there was a discussion about who might be a good builder. She recalls being told that Drew Edwards was a good builder. She recalled there was a number of discussions that afternoon and that evening. None of them concerned the easement. All she understood from what she was told on 23 October that the easement was in the middle of the block, it was not very wide and was probably about 3m in width. It ran the whole of the length of the block. It was represented by the dotted lines on the concept plans and those plans created a fundamental understanding that they had about the easement.
The Form 1
Ms Lockyer said they received the Form 1 on 24 October when Alexandrou dropped it into their home at Glenside. She read the document and she thinks she read it quite carefully. She recalls looking at the Certificate of Title and she saw what she expected to see which was dotted lines in the middle of the Certificate of Title. She thought there was an easement for water marked “A” and an easement for sewerage marked “B”. That is why there were three dotted lines. She did not receive the Certificate of Title on 23 October but only on 24 October.
Subsequently, on 25 October she and her husband made an offer of $720,000 for the land. That was rejected and they were told Ms Osman had changed her mind and wanted to subdivide the land. Some time later they were told by Alexandrou that the auction was back on and as they were keen not to go to an auction, they enquired whether Ms Osman would be amenable to an offer before auction. They resubmitted their offer of $720,000, it was rejected and there was a counter offer of $730,000. They did not accept the counter offer.
They went to the auction. There were no bids at the auction and there was only a vendor’s bid of $735,000. There were no other bids. They were asked by Alexandrou to put their offer of $720,000 again. They did put that offer and it was accepted.
She recalls that after the auction she and her husband had a celebration with friends, Ian and Rebecca Peters. They went to the block and shared some champagne and had a discussion about what they were going to build on the block. They intended to build either side of the easement. She then instructed Max Pritchard architect and then subsequently retained Drew Edwards as a designer and builder. She prepared a design brief using pictures.[49] The design brief at page 34 (point 8) refers to a solar heated swimming pool. That was in her vision for development of the block and part of the brief to Drew Edwards. She also wanted to have an office for Ian Lockyer as well as a recreation room for use by the family behind the swimming pool. She referred to the easement in the design brief and her reference was to the 3m wide easement which ran down the block. It was then on 26 November 2013 that she found out about the easement in discussions that she had with Vicky Radford. Once she found out about the easement, they took steps to instruct solicitors and eventually rescinded the contract. She says she would never have made an offer to purchase the land if she had known the true extent of the easement.
[49] Exhibit P1, tab 1.
In cross examination, Ms Lockyer confirmed that she looked carefully through the contract of sale.[50] This was the contract received on 24 October with the Form 1. She also received a bundle of material from Toop on the day of the auction[51] and this included the buyer’s information notice.[52] That was read by her and her husband and despite the advice in the document they did not obtain any legal advice on the contract. She also read the bidder’s guide[53] and she knew there were no “cooling off” rights from an auction. She had sent the documentation to their conveyancer Mr Ielasi and that would have been some time on 24 October. She was aware of the content of the brochure, the fact that there was a disclaimer by Toop in the brochure that gave no warranty about accuracy and that it suggested the seeking of independent legal advice which she and her husband did not seek. At the time of the auction, she received the contract and read it before signing it. She had also read the contract at the time she and her husband signed the offer of $720,000 first put to the plaintiff in order to avoid the auction.
[50] Exhibit P1, vol 2 tab 65. Page 274.
[51] Exhibit P2, vol 2 tab 151, page 617 et seq.
[52] Exhibit P2, vol 2 tab page 623.
[53] Page 625.
Ms Lockyer was then taken specifically to the contract that she signed.[54] At the time she signed the contract, she knew what an encumbrance was from her experience with the encumbrance at the rear of their property at Glen Iris Melbourne property. She knows that the Certificate of Title referred to encumbrances and she knows that the Form 1 gave a description of the encumbrances. They are set out at page 276 of Exhibit P2 volume 1 and she knew there were two encumbrances marked “A” and “B”. One was for water and one was for sewage. She saw the copy of the Certificate of Title and the easements marked on it. She knows there was an enlargement there but she does not recall specifically looking at the enlargement. She thinks she might have but she has no specific recall. She says that even though she has a clear understanding now of the content of the enlargement, at the time that she looked at it, she just did not see “A” by itself on the enlargement or on the Certificate of Title and she saw what she expected to see based upon the concept plans that she had been given. She knew there were no easements marked on the brochure and she agrees she was not in any way misled by the brochure. Similarly, there were dotted lines marked out on the garden plan and these were reasonably consistent with what is shown on the concept plan.
[54] Exhibit P2, vol 1 tab 65, page 265.
Ms Lockyer agreed that the Certificate of Title plan was the information that a purchaser should rely on and she knew that she would not give preference, for example, to the brochure document published by Toop. She said that the Toop brochure document led her to believe that she was correct in her interpretation of what she was seeing on the Certificate of Title. I am unable to accept that evidence because the brochure itself shows no dotted lines within the block. To an extent, that may be misleading but no assertion is made by these defendants that it in any way misled them. I will leave that issue to one side. It could not be said that anything contained within the brochure could be confirmatory of any belief one way or the other. She accepts the brochure had no influence on their decision making. She also agreed that she would not give the floor plan prepared by Campagnaro preference or priority over what is shown on the Certificate of Title however, she says that having seen the garden plan and then the plan prepared by Campagnaro, this led her to read the Certificate of Title incorrectly. It led her to read it in a particular light namely that there was a narrow 3m easement running down the middle of the block.
She knew that there were pegs on the block, there had been conversations about the survey pegs but they were unable to make much of the survey pegs and despite the warnings received upon the documentation they did not get a survey done before they purchased the land at the auction nor did they get any legal advice.
Also, she did not ever think to make an enquiry of SA Water before purchase about whether there was any connection with the easement and the equipment on the top of the rise. Her plan was to do that subsequently so she could make sure they knew where they could put the deck. It was only after they spoke to SA Water that they were properly informed.

The defendants agree that the letter of 8 December 2013[120] evinced an intention not to be bound by the contract. They say despite the terms of the contract[121] even though the plaintiff did not follow the contractual terms, there is still a right in the plaintiff to terminate for repudiatory conduct. The defendants then contend that this right must follow observance by the plaintiff of the common law rules that require notification by the plaintiff of acceptance of repudiatory conduct of the defendants.
[120] Exhibit P2 vol 2 tab 94.
[121] 9. Default by Purchaser
9.1 Default in Payment of Deposit
Notwithstanding any other provision of this Contract, in the event the Purchaser fails to pay all or any part of the deposit by the date specified then the Vendor will be entitled to immediately terminate the Contract without prior notice.
9.2 Default by Purchaser Prior to Settlement
In the event the Purchaser is in default in performing or observing any obligation imposed on the Purchaser under this Contract prior to settlement then the Vendor, in addition to any other rights or remedies it may have under this Contract or otherwise, may give the Purchaser notice in writing requiring the Purchaser to remedy the default within seven (7) days from service of the notice. If the Purchaser fails to comply with the notice the Vendor may terminate the Contract by further written notice without prejudice to the Vendor’s rights and entitlements at law. The Vendor will be entitled to serve more than one notice without prejudice to any of its rights and obligations.
9.3 Default by Purchaser in Settlement
In the event the Purchaser defaults in the due observance or performance of the obligations on the Purchaser’s part to settle and such default continues for a period of three (3) clear business days after the settlement date then the Vendor may serve a notice on the Purchaser requiring the Purchaser to settle at the time and date appointed in the notice. If the Purchaser fails to comply with the notice requiring the Purchaser to settle at the time and date appointed in the notice. If the Purchaser fails to comply with the notice the Vendor may terminate the Contract by further written notice without prejudice to the Vendor’s rights and entitlements at law. The Vendor will be entitled to serve more than one notice without prejudice to any of its rights and obligations.
9.4 Remedies of Vendor
(a) In the event this Contract is terminated by the Vendor then the Vendor may either retain the property or sell the property and in either event sue the Purchaser for damages.
(b) The Vendor will be entitled to retain the deposit if this Contract is terminated by the Vendor.
(c) If the Vendor re-sells the property the Vendor may retain absolutely any surplus arising from such re-sale in excess of the original Purchase Price and expenses arising from the re-sale and all losses and expenses incurred by the Vendor resulting from the Purchaser’s default.
(d) In the event this Contract settles on a date after the date for settlement first agreed to by the parties and as stated in the Contract (and whether or not subsequently varied by agreement) and provided that the delay in settlement is not due to the Vendor’s default, the Purchaser will pay at settlement, if demanded by the Vendor, interest on the Purchaser Price at the default rate for the period between the date for settlement first agreed and the date of actual settlement. In this event, at settlement all outgoings and income on the property shall be apportioned and adjusted to midnight on the day before the date for agreed settlement.
The defendants contend that this has not occurred and that there are then significant ramifications that follow this failure. Once the land has been resold by the plaintiff, the contract with the defendants is impossible to perform. The active resale of the land by the plaintiff is (allegedly) an act of acquiescence that gives rise to an estoppel on this argument. That estoppel, by acquiescing in the breach, arises to prevent the plaintiff from pursing her common law rights. The defendants sought to distinguish the High Court decision in Holland v Wiltshire[122] because, in that case, there was a notice to complete issued by the vendor and the question was whether there was a need for a further notice from the vendor. I will deal later with the Holland v Wiltshire case but in that case, the vendor had issued a notice to complete but then did nothing except to put the property back on the market for sale.
[122] [1954] 90 CLR 409.
Here, in support of the estoppel argument generally, the defendants submit that the plaintiff was required to act in some way within a reasonable time to give notice whether to enforce the contract or to treat the contract as having been terminated. The plaintiff did not respond to the defendants and placed the land back on the market for sale. Thus, the defendants say, the solicitor’s letter of 24 December 2013 as notice of acceptance of rescission as being lawful, in turn meant that absent a response, there was a sterilisation of all of the plaintiff’s common law rights. The only rights that could accrue were those arising under contract (which were not pursued).
I am unable to accept the defendants’ argument because I consider that it contains a number of flaws of logic. The parties entered into a contract on 9 November 2013. On 8 December 2013, prior to the date for settlement[123] the defendants gave notice of the exercise of the rights they claimed in equity to terminate the contract because it was (allegedly) procured following a misrepresentation which had a causal effect. Soon thereafter the plaintiff reoffered the land for sale of which the defendants were aware; they were active in correcting the advertising hoardings of the plaintiff’s new agent who continued to misrepresent the width of the easements. The defendants would not have attended settlement if a notice to complete had been issued. The defendants considered themselves no longer bound by any contractual or other obligation in respect of the land. They were either correct or incorrect in maintaining that position. Nothing that the plaintiff then did with the land could constitute a detriment to them because, if there was a detriment, it had been already suffered (e.g. if they incorrectly claimed for the termination of the contract). But this was not a detriment which would ground any form of estoppel. It was not as if the defendants were to have an epiphany and accept the liability to settle under the contract: there was a once and for all election made on 8 December 2013.
[123] 9 December 2013.
I consider that as a result of this litany of facts, there was no detriment suffered by the defendants following their election to terminate the contract. Nothing done by the plaintiff thereafter was, even in the broadest sense, the cause of a detriment to the defendants sufficient to ground any estoppel against the plaintiff and I am of the view that no form of estoppel arises as contended for by the defendants.
Similarly, once the defendants knew that the land had been reoffered for sale, they were aware that the plaintiff did not intend to purport to exercise any right to call them to complete the contract. At worst, the defendants faced an action for damages at common law (which is this case). I consider that the letter of 24 December was of no legal effect unless the plaintiff was required to do more than relist the land for sale. The submissions of the defendants require a proper consideration of Holland v Wiltshire.
That case involved a contract made in December 1951 for the sale and purchase of a domestic property on Grange Road at Flinders Park. Settlement was due about one month after the date of the contract but within three weeks, the purchasers sought an extension of time to settle because of a lack of funds and this was given by the vendor until about March 1952. In the second week of March 1952, the purchasers told the vendor that the purchase would not proceed. The vendor delivered a notice to complete for 28 March 1952 and absent settlement the vendor would sue for breach. The property was resold at a loss which was recovered by the vendor as damages. An appeal from the judgment of the local Court to the Supreme Court of South Australia was dismissed and the High Court dismissed a further appeal. The High Court held that the resale was not effected under the terms of the contract but independently of it. When considering the facts, Dixon CJ said as follows (at page 413):-
The facts are simple and so far as material are not now in dispute. It appears that before the date for completion named in the contract viz 14 January 1952, the purchasers informed the vendor that they had found difficulty in raising the purchase money and craved an extension of time. Time was granted… discussions went on until about the second week in March 1952 when the purchasers’ solicitor informed the vendor that they would not proceed with the purchase. Their grounds for thus renouncing the contract proved untenable as the facts were found and they ceased to be material. The vendor might have accepted this as a renunciation at once and put an end to the contract. But in fact he proceeded to give to the purchaser a notice to settle…
One way for a vendor to accept a renunciation is to act openly in a fashion that is inconsistent with the continuing obligation to be bound under the contract by listing it for sale. This action can be by word, conduct or, for example in a document. There is no closed category of action or activity which would constitute such an election nor, as a matter of common sense could there be such a closed category of case unless the closed category was of itself a matter prescribed within the contract. However, this is activity sitting outside of the contract.
On the question of the exercise by the vendor of the power of sale, Dixon CJ said at 414-415 as follows:-
In fact, the purchasers did not communicate with the vendor who proceeded to advertise the property for sale. On 10 June 1952 the vendor resold the property. By letter of 12 June the vendor solicitor informed the purchasers’ solicitors that the property had been resold.. the letter demanded payment of the difference between the contract price and the amount obtained on the resale… the contention of the defendant’s appellants, the purchasers is that the resale amounted to an exercise of the power conferred on the vendor by the printed clause already set out and that as he resorted to that clause he is bound by its terms. Which entitle him to only minimal compensation.
It may be remarked that this contention assumes that when the clause says “and any monies paid on account of the purchase shall… be forfeited to the vendor as and for liquidated damages.” It means that the forfeiture shall take place independently of the vendors volition. It is, however, plain that the clause is intended for his benefit only and it would not be an unnatural reading to treat the forfeiture as dependent upon his election. But whoever that may be, there is no sufficient reason for regarding the vendor as having exercised the power conferred by the clause. On the contrary, everything points to his having treated the contract as discharged by breach and as having sold in the exercise of his rights as owner unfettered by the contract.
Dixon CJ recognised that by electing to put the property back on the market for sale and reselling it, the vendor was giving sufficient notice to the prospective purchaser that he treated the contract as having been discharged by a breach. Dixon CJ then went on to consider the operation of s 16 Law of Property Act, the content of the notice to complete, the notice that damages would be sought and then summarised his views as follows:-[124]
Here the inference of fact is plain that the purchasers were maintaining their attitude of refusal to go on with the sale. In these circumstances, the vendor was entitled to treat this contract as discharged by a breach. He himself was ready and willing up to the expiration of the notice. His election to treat the contract as discharged by the purchaser’ breach was sufficiently manifested by his proceeding to advertise the property for sale and by his selling it. By that time the purchasers were in actual breach and that breach was accompanied by an intention clearly evinced of setting the contract at naught. It is hard to see why this should not enable the vendor to treat the whole contract as discharged by the purchasers’ breach or in other words to treat the contract as no longer binding upon him. This means that both parties would be discharged from further performance of the contract. The whole contract was involved, including the clause relating to rescission.
[124] Pages 415-416.
Properly understood, the fact that a notice to complete had been delivered by the vendor to the prospective purchaser was of no significance except that the timing of the notice to complete was observed by the vendor. After that time, and outside of the terms of the contract, the vendor gave notice of his election to treat the contract as having been discharged by a breach by proceeding to advertise the property for sale and selling it. It follows that merely because the vendor issued the notice to complete does not mean that there is a point of distinction between Holland v Wiltshire and the case at bar. In my opinion they are identical.
Dixon CJ then concluded his comments at page 416 as follows:-
The proper conclusion is that the vendor proceeded not under the contractual provision but on the footing that the purchasers had discharged him from the obligation of the contract. It follows that he is entitled to sue for unliquidated damages. Some suggestion was made for the defendants appellants that once the contract was treated by the vendor as discharged, he could not recover for breach. This notion, however, is based on a confusion with rescission for some invalidating cause. It is quite inconsistent with principle and has long since been dissipated.
Similar comments were made by Kitto J in his judgment at pages 419 and 420-421. At page 422, Kitto J referred to the decision of the Privy Council in Heyman v Darwin which confirmed that repudiation by one party standing alone does not terminate a contract and it is necessary for there to be repudiatory conduct on one side which is accepted by the repudiation on the other. The acceptance of that repudiatory conduct is not in any sense strictly defined and it can be, for example, by resale. The rule in Heyman does not purport to define the meaning of “acceptance” which is a question of fact. On the authorities, one form of acceptance would constitute an act which is inconsistent with the continuation of the existence of the contract. One act would be the commencement of the damages claimed. A precursor to such a claim would be, for example, the relisting of the property for sale.
In my opinion, the judgment of Dixon CJ at page 416 referred to above concerning the dissipation of the invalidating clause argument, is a sufficient answer to the arguments put by the defendants here of the alleged sterilisation of the plaintiff’s rights following the letter of 24 December 2013. In my opinion, Dixon CJ rejected such an approach. I would adopt the same approach.
I therefore accept that the relisting of the land for sale was sufficient to constitute an acceptance by the plaintiff of what she contends is the repudiatory conduct consistent with the rule in Heyman and Holland. I therefore also accept that it was sufficient notice to the defendants of the plaintiff’s position. I consider that there is no acquiescence by the plaintiff as alleged by the defendants because it was always necessary for the plaintiff to complete the process of resale before ascertaining whether there was any damage suffered by her for which she would pursue the defendants. I therefore accept the plaintiff’s submission in this regard.
The defendants further contended that by the failure of the plaintiff to respond to the letter of 8 December until 23 May 2014, that there has been some form of acquiescence and a consequent loss in the plaintiff of the right to sue for damages. I have surveyed the relevant authorities[125] and consistent with what fell from Poole J in Glasson, the conduct (of the plaintiff here) must indicate sufficiently an abandonment of a right or, perhaps almost identically, conduct upon which the other party relies to their detriment indicating that (the plaintiff here) would not assert such a right. Both are involved with a sufficiently outward manifestation of the abandonment of rights which, viewed objectively, would be sufficient to create an understanding in the mind of the other person (here the defendants) of the abandonment of such rights.
[125] Permanent Trustee Co Limited v Bernera Holdings Pty Ltd [20014] NSWSC 56 at [56]-[60]; Cashman v 7 North Golden Gate Mining Co (1897) 7 QLJ 152 at 153; Orr v Ford (1989) 167 CLR 316 at 337-338; Glasson v Fuller [1922] SASR 148 at 161-3; Edmunds v Pickering (No. 3) (1999) 75 SASR 407.
I do not apprehend that laches or gross laches has any part to play here because of the facts of the matter. I am unable to accept the defendants’ submissions that acquiescence has any part to play in this matter. The factual findings that I have made disclose that it would not be until the land was resold that it would be known whether the plaintiff was able to make any assessment of whether she had a damages claim. It certainly was not quantifiable until that time. When she did have knowledge that she could make a claim for such damages, the proceedings were commenced. Also, the defendants were under no doubt that the land was to be resold and a damages claim may be available to the plaintiff by the common law or under the terms of the contract. The plaintiff was refusing to return the deposit despite the defendants making claims for a repayment of the deposit based upon their asserted entitlement to receive that sum upon their proper termination of the contract. There is no evidence of any prejudice having been suffered by the defendants consequent upon the conduct of the plaintiff.
In the result I confirm that the defendants were entitled in equity to give a notice of rescission of the contract of sale of the land based upon the actionable misrepresentation on which they relied in entering into the contract. As a result from no later than 8 December 2013 the defendants were not bound by the contract with the plaintiff and from that date they have had an entitlement for the return of the deposit.
I will hear the parties as to consequential orders and on the question of costs.
In the event that I am wrong about the conclusion I have reached, it is appropriate that I express my views about the plaintiff’s damages claim. The plaintiff did not follow the scheme of the contractual terms about Notice to Complete, setting a settlement date, resale upon the defendants’ refusal to settle and then her damages claim. That failure to follow the contract does not disentitle the plaintiff to an assessment of damages. Such an assessment would sit outside of the contract and so the plaintiff would lose the benefit of the typical clauses in such contracts that accelerate the amount of damages claimable. These include a right to claim for elevated levels of interest and costs. Consistent with the approach of the High Court in Holland, the measure of damages is the difference between the contract price and the subsequent sale price together with associated costs. Interest would be assessed on an overall basis under the Rules of Court.
Based upon the evidence led by the plaintiff before me, I am satisfied that the plaintiff’s claim, if she succeeded, would be assessed on the following basis:-

Dollar amount

1. Net difference in contract price and subsequent sale price $188,459.50

2. Allowance for the cost of funds because of the loss of use of the sum of $188,459.50 in retirement of debt
$15,000.00

3. Interest $8,000.00

I have increased the amount claimed under item 2 above to take account of the expiry of further time and I have used a broad axe approach on the calculation of interest.

Dollar amount
1.	Net difference in contract price and subsequent sale price	$188,459.50
2.	Allowance for the cost of funds because of the loss of use of the sum of $188,459.50 in retirement of debt	$15,000.00
3.	Interest	$8,000.00