Pole v Jasenthuhewage
[2016] VSC 204
•16 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 01179
| DAVID IAN POLE | Plaintiff |
| v | |
| MENAKA NILUSHI SENARATH JASENTHUHEWAGE | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 April 2016 (Further written submissions filed by the plaintiff on 9 May 2016) |
DATE OF JUDGMENT: | 16 May 2016 |
CASE MAY BE CITED AS: | Pole v Jasenthuhewage |
MEDIUM NEUTRAL CITATION: | [2016] VSC 204 |
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ADMINISTRATIVE LAW – Appeal – Magistrates’ Court Act 1989 s 109 – Difference between finding of fact and question of law – S v Crimes Compensation Tribunal [1998] 1 VR 83 and State of Victoria v Subramanian [2008] 19 VR 335 considered – Whether magistrate’s decision based on no evidence or so unreasonable that no reasonable decision maker could make such a finding – Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 applied – Wednesbury unreasonableness – Minister for Immigration and Citizenship v Li and another [2013] 249 CLR 332 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 considered – Appeal dismissed.
SALE OF LAND – Contract – Purchaser’s statutory right to avoid contract – Proposed plan of subdivision not provided with section 32 statement – Whether vendor acted reasonably – Fifty-Eighth Highwire v Cohen [1996] 2 VR 64 and Paterson v Batrouney (2001) V ConvR 54–639 considered – Sale of Land Act 1962 s 32(5), s 32(7).
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff | In person | |
| For the Defendant | Mr T Sowden | Conlan Cummings Lawyers |
HER HONOUR:
The plaintiff in this proceeding, Mr David Pole, was the vendor of a property at Unit 2, 78 Warana Drive, Hampton Park. On 9 May 2014, Mr Pole (‘vendor’), who is a builder/developer, entered into a contract of sale with the defendant, Ms Menaka Jasenthuhewage (‘purchaser’), for the sale of the property for the price of $295,000. The contract of sale required the payment of an interim deposit of $500 upon signing of the contract of sale, and payment of the balance of the deposit of $29,500 by 21 May 2014. The contract of sale also included a special condition that the vendor provide to the purchaser, before 21 May 2014, copies of the following documents: evidence of warranty insurance, proposed subdivision plans (the property was one of two units on a single block), house plans and manuals for appliances. The statement required by s 32 of the Sale of Land Act 1962 (‘Act’) to accompany the contract of sale (‘section 32 statement’) did not include, as required by the Act, a copy of the proposed plan of subdivision.[1] The special conditions were inserted at the instigation of the solicitors then engaged by the purchaser.
[1]The Act has since been amended, but these reasons refer to the provisions in force at the relevant period.
The documents referred to above were provided by the vendor to the purchaser’s solicitor on or about 13 May 2014. The purchaser paid the outstanding balance of the deposit on or about 27 May 2014. Settlement of the purchase was due to take place on 4 July 2014.
On 18 June 2014, the (new) solicitors for the purchaser wrote to the vendor’s conveyancer stating that:
We have been asked to act for the purchaser replacing the previous solicitors who acted in this role. We have reviewed the contract of sale that was executed by the parties on 9 May 2014 and note that in Special Condition 4 the vendor was to provide, subsequent to the contract, certain documentation including ‘proposed subdivision plans’ which we are instructed were provided on 13 May 2014.
Our client wishes not to proceed with the contract and our advice to the client is that the contract documentation including the Section 32 Sale of Land Act material is deficient in that it fails to provide a sufficient identification of the land that would oblige our client to proceed. The failure to provide certainty as to the identity of the property being purchased by the purchaser at the time of the contract, in our submission, is a fatal breach of the statutory minimum requirements necessary to enforce the contract. Our client, at the point of sale, should have received a plan together with the other information that is pertinent to the proposed plan of subdivision.
The subsequent provision of the plan, in our view, does not have the effect of providing the necessary certainty to which our client is entitled to in relation to the land description at the point of contract and the failure to properly provide the detail makes the contract uncertain and incomplete and subject to avoidance by the client.
In such circumstances, our client does not intend to proceed and our client will be seeking the return of all monies that have been paid pursuant to the contract of sale. Kindly acknowledge receipt of this advice and confirm that your client accepts our client’s right to refuse to proceed and authorise the repayment of the deposit monies to our office within 14 days of this notice.
However, the vendor did not accept that the purchaser was entitled to rescind the contract of sale, and refused to return the deposit, which remains in his conveyancer’s trust account pending the outcome of this proceeding. On 3 July 2014, the purchaser issued a complaint in the Magistrates’ Court at Broadmeadows seeking that the deposit of $29,500 be returned to it. On 28 August 2014, the vendor gave notice of his intention to defend the claim, and issued a counterclaim seeking ‘all of the wasted costs associated with the sale … and all costs associated with the plaintiff’s repudiation of the contract.’ By an amended counterclaim dated 20 November 2014, these damages were quantified: the vendor claimed the sum of $32,092.30.
The matter came on for hearing on 11 December 2014 before Magistrate D. Lennon. On 15 December 2014, the learned magistrate made the following orders:
1. Judgment for the plaintiff in the sum of $29,500.
2. Parties to provide agreed amount of interest and costs.
3. In default of agreement, parties to file submissions in relation to interest and costs.
In a separate order made on the same day, the vendor’s counterclaim was dismissed.
The learned magistrate, at the request of the vendor, provided written reasons for decision on 11 February 2015. On 24 April 2015, Mukhtar AsJ made orders granting an extension of time to bring an appeal against the decision to grant judgment to the purchaser and to dismiss the vendor’s counterclaim. The hearing of the appeal was listed for 29 February 2016, but an adjournment was granted to enable Mr Pole to raise funds for legal representation at the hearing of the appeal. This did not eventuate, and Mr Pole appeared at the hearing unrepresented. At the hearing, he relied upon the written submission filed on his behalf (which had been drawn by counsel), and made further brief oral submissions. I also provided Mr Pole with an opportunity to file and serve written submissions after the hearing, and he did so.
The trial before the learned magistrate proceeded on the basis that the section 32 statement failed to comply with the requirements of s 32 of the Act. However, s 32(7) provides that a vendor may prevent a purchaser from rescinding a contract on the basis of a vendor’s failure to comply with the requirements of s 32 of the Act if the vendor can show:
(a) he acted honestly;
(b) he acted reasonably;
(c) he ought fairly be excused from the contravention; and
(d) the purchaser is in substantially as good a position as if all the relevant provisions of s 32 of the Act had been complied with.
The terms of s 32(7) of the Act provide a reasonably high bar for a vendor, given that the burden is on the vendor to establish each of the separate elements outlined above in order to deny the purchaser’s entitlement to rescind a contract of sale under section 32(5) of the Act.
In the current case, the learned magistrate found that the vendor had acted honestly, but that in failing to provide a copy of the proposed plan of subdivision with the section 32 statement, he had not acted reasonably. He did not make any findings as to whether the vendor ought to fairly be excused from the contravention, or whether the purchaser was in substantially as good a position had the vendor provided a copy of the proposed plan of subdivision. It was not strictly necessary for him to do so, the vendor having fallen at the second hurdle.
In relation to the question of whether the vendor had acted reasonably after summarising the evidence led at the hearing, the learned magistrate made, in summary, the following findings:
(a) the vendor was a developer with considerable experience in subdividing and developing properties, and as such had not come to the transaction as a novice;
(b) the vendor was or should have been aware of his obligation to include the proposed plan of subdivision in the section 32 statement;
(c) the vendor’s explanation that he could not find the proposed plan of subdivision and that he requested his surveyor to find it was not a reasonable explanation, and that, given he could have located the proposed plan of subdivision, delaying the sale pending provision of the proposed plan of subdivision was substantially preferable to providing inaccurate and potentially misleading information;
(d) a reasonable person in the position of the vendor (being a builder specialising in unit developments) would have known that the proposed plan of subdivision would include a body corporate/owner’s corporation and that they were the same thing;
(e) the vendor’s assertion that he believed (on the basis of legal advice) that he was absolved from providing the proposed plan of subdivision by reason of the inclusion of the special conditions in the contract of sale does not provide a satisfactory explanation of why he failed to provide it before entry into the contract of sale, given that it was reasonably capable of being found;
(f) it was unreasonable for the vendor not to provide the proposed plan of subdivision to potential purchasers as soon as expressions of interest were made and prior to entry into a contract of sale to enable potential purchasers to make a fully informed decision about whether to proceed with the purchase and at what price in circumstances where the proposed plans of subdivision was reasonably obtainable by him; and
(g) the inclusion of the special condition and the subsequent provision of the proposed plan of subdivision did not cure the contravention, and the reasons provided by the vendor for not providing the proposed plan of subdivision in the section 32 statement did not support a finding that the vendor acted reasonably.
The amended notice of appeal filed on 22 June 2015 sought orders to the effect that:
(a) the appeal be allowed;
(b) the learned magistrate’s order be set aside;
(c) a declaration that the vendor acted reasonably and ought to be fairly excused from the contravention and the purchaser is in as good a position as if the vendor had complied with s 32 of the Act;
(d) the purchaser was not entitled to rescind the contract and her complaint ought to be dismissed; and
(e) the proceeding be remitted to the Magistrates’ Court for the assessment of damages pursuant to the vendor’s counterclaim and the determination of the costs in the primary proceeding.
The question of law in the amended notice of appeal in substance merely repeats the terms of s 32(7) of the Act, but the grounds of appeal are extensive, as follows:
1.The learned Magistrate erred in law in determining the scope of the test to decide if the appellant acted reasonably as he failed to take into account the evidence of the matrix of circumstances after the appellant prepared the section 32 statement and in particular that:
(a)the respondent obtained independent legal advice (in her native tongue) before entering into the contract;
(b)the respondent was aware there was no proposed plan of subdivision in the Vendor’s Statement but nevertheless wanted to enter into a contract with the appellant;
(c)the respondent inserted the Special Condition 4 in the contract and negotiated the price of the sale of the property according to the Special Condition 4 and thereby knowing she did not have the proposed plan of subdivision;
(d)the respondent made an offer to enter into a contract knowing she will obtain the proposed plan of subdivision with 14 days and wanted the appellant to accept it;
(e)the appellant accepted the respondent’s offer;
(f)it was the respondent’s actions that led the parties entering into the contract;
(g)the appellant made full disclosure and provided the proposed plan of subdivision on 13 May 2014;
(h)the (sic) paid the deposit pursuant to the contract on about 27 May 2014 (following the provision of the plan of subdivision); and
(i)the respondent wanted to terminate the contract because of alleged building defects and not because the appellant failed to include the plan of subdivision in the section 32 statement.
2.The learned Magistrate erred in law as he failed to consider adequately the matrix of circumstances after the appellant prepared the section 32 statement to determine if the appellant acted reasonably and in particular the particulars from sub-paragraphs 1(a) to 1(i) herein.
3.The learned Magistrate erred in law in finding that the appellant acted unreasonably when the appellant agreed to the respondent’s special conditions in circumstances where:
(a)The respondent knew before entering into the contract that the plan of subdivision was not in the section 32 as she received (in her native tongue) legal advice from Ms Senanie Kurukularatne, principal of Gateway Lawyers, about the non‑inclusion of a plan of subdivision in the Vendor’s Statement and she knew the consequences of continuing, and in particular, the inclusion of the special condition that the appellant will provide the plan of subdivision 11 days later;
(b)the appellant knew the respondent obtained legal advice from Ms Senanie Kurukularatne, (the respondent’s solicitor) and from her husband;
(c)the respondent terminated the contract because of the alleged building defects and not because of the non-inclusion of the plan of division in the Vendor’s Statement;
because:
(d)It is so unreasonable that in all the circumstances for the learned judge to conclude the appellant acted unreasonably.
4.The learned Magistrate erred in law by failing to consider and find the respondent was not a creditable witness and little of her evidence should be taken into account in the determination if the appellant acted reasonably.
5.The learned Magistrate erred as he failed to consider adequately and determine that the respondent terminated the contract was because of alleged building defects and not because the plan of subdivision was not included in the section 32 statement.
6.The learned Magistrate erred in his finding of the extent of the appellant’s legal knowledge of the legal consequences when the respondent requested the special condition.
The written submissions filed on behalf of the vendor on 11 September 2015 elaborate upon the grounds of appeal. However, these submissions, taken together with the grounds of appeal set out above, tend to confirm that what the vendor is seeking to do is attack the merits of the findings of the learned magistrate, and point to evidence which should have led the learned magistrate to reach a different view as to whether the vendor had acted reasonably in not providing the proposed plan of subdivision with the section 32 statement.
However, the grounds of appeal and submissions do not expose any error of law on the part of the learned magistrate. The appeal simply takes issue with the factual findings of the learned magistrate. Accordingly, the appeal must fail.
The distinction between a finding of fact and a question of law has been subject to extensive judicial consideration, both in the context of appeals from courts and tribunals where an appeal only lies upon a question of law, and in the context of whether judicial review is available to set aside decisions made by courts, tribunals and administrative decision makers on the grounds of jurisdictional error or error of law on the face of the record. This is not the occasion to traverse the relevant authorities at any length. However, the position can be conveniently summarised by reference to the remarks made by Phillips JA in S v Crimes Compensation Tribunal[2] to the effect that ordinarily a determination of fact will not give rise to an error of law:
unless it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.
[2][1998] 1 VR 83, 90.
This statement has been held to be applicable not only to appeals from tribunals, but appeals from a decision of the Magistrates’ Court under s 109 of the Magistrates’ Court Act 1989 (Vic).[3] An alternative formulation of the question of whether a factual determination of a court or tribunal could amount to an error of law is whether the finding was so unreasonable that no reasonable decision-maker could have made it.[4] It is not sufficient for a reviewing court to make such a finding that the reviewing court ‘emphatically disagrees’ with the decision below,[5] or ‘a particular decision was against the evidence and the weight of evidence’.[6]
[3]see State of Victoria v Subramanian [2008] 19 VR 335.
[4]Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.
[5]see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626.
[6]Transport Accident Commission v Hoffman (1989) VR 197, 199.
While recent High Court authorities could be interpreted as relaxing the stringency of the formulation of the test of Wednesbury unreasonableness,[7] at least insofar as it applies to review of administrative decision making, it is clear that in order to establish an error of law on the part of the learned magistrate, the vendor must show that the learned magistrate misdirected himself as to the correct law, applied the wrong test, or that his decision was illogical or irrational. It is simply insufficient to assert that, based upon the evidence, another decision maker might have reached a different conclusion.
[7]see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
In the current case, there is no suggestion that the learned magistrate did not identify the applicable law, or that he misconstrued the relevant provisions. It was asserted that he did not apply the ‘correct test’, or applied too narrow a test, but, as observed by counsel for the purchaser, the vendor’s submissions do not identify what the correct test is, and how the learned magistrate departed from it.
The submissions identify a number of authorities where the Court was required to consider whether a vendor had acted reasonably, or otherwise ought to be relieved of the consequences of a breach of the requirements of s 32 of the Act. These authorities emphasise the need for the Court to take into account all relevant circumstances, and the vendor’s conduct must be evaluated against the relevant factual matrix. Such statements are uncontroversial, and identify the task that is required to be performed by the Court in making a determination under s 32(7) of the Act. However, it is not the task of this Court, on an appeal from the Magistrates’ Court under s 109 of the Magistrates’ Court Act1989 (Vic) to substitute its own view of the relevant circumstances and factual matrix, and reach its own conclusion as to whether the vendor acted reasonably.[8]
[8]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 [131] per Crennan and Bell JJ.
In a recent decision of the Full Federal Court, Minister for Immigration and Border Protection v Stretton,[9] Allsop CJ explored further the implications of the determination of the High Court in Minister for Immigration and Citizenship vLi[10] that legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision-making, including the determination of the existence of a jurisdictional fact. His Honour observed:
the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, on an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of the power.
Critical to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific jurisdictional error, to the conclusion or outcome reached, on the reasoning process utilised.
[9][2016] FCAFC 11 [11]–[12].
[10](2013) 249 CLR 332.
It is clear from the recitation of the evidence and the reasoning process undertaken by the learned magistrate in the reasons that he did evaluate the reasonableness of the vendor’s conduct against the background of all relevant circumstances. He distinguished the position of the vendor in the current case with the decision in Paterson v Batrouney,[11] where the vendors, an elderly couple, were found to have acted reasonably in instructing solicitors to prepare the section 32 statement on their behalf, and as such should not have had the consequences of the negligent conduct of their solicitors visited upon them. Here, the learned magistrate noted that the vendor was an experienced builder/developer, who either did know or should have known that the proposed plan of subdivision needed to be included in the section 32 statement. He found that, in circumstances where the proposed plan of subdivision was capable of being located, it should have been provided, even if that meant delaying the sale of the property. It is apparent from the reasons that the learned magistrate found that the proposed plan of subdivision should have been provided to enable the purchaser to make a fully informed decision, to enable meaningful negotiation, and to give her pertinent knowledge prior to determining whether to enter into a contract. Clearly, the learned magistrate was cognisant of the objective of the requirements imposed by s 32 of the Act, that is, to ensure that potential purchasers of land are provided with relevant information about the land, the Act being important consumer protection legislation. The consumer protection objectives of the Act are of course consistent with the mandatory requirements of s 32 of the Act, the significant consequences of a failure to comply with the Act, and the relatively onerous task facing a vendor seeking to avoid those consequences.
[11](2001) VConvR 54–639.
The main complaint of the vendor, which is evident from the grounds of appeal, the written submissions filed on his behalf and the oral submissions made at the hearing, is that the learned magistrate did not take into account, or simply dismissed the evidence regarding the conduct of the purchaser in entering into the contract of sale with the special conditions, paying the deposit after reviewing the proposed plan of subdivision, proceeding with the contract until just prior to settlement until she rescinded the contract of sale for motivations other than that set out in the letter in which the purchaser purported to rescind the contract, and at all times acting with the benefit of legal advice. I cannot accept those submissions. Essentially, the learned magistrate held that these matters were not relevant to, or did not explain or excuse the conduct of the vendor in failing, unreasonably, to provide the proposed plan of subdivision with the section 32 statement in the first place. That finding is consistent with the authorities that the requirement of reasonableness focuses ‘exclusively, or almost exclusively on the position of the vendor’.[12] Had the learned magistrate found that the vendor had acted reasonably, no doubt the conduct of the purchaser would have been relevant to consideration of the third and fourth limbs of s 32(7). However, given that it was necessary for the vendor to establish each of the elements of s 32(7) of the Act, there was no error on the part of the learned magistrate in not making findings with respect to the third and fourth limbs of s 32(7) once he had found the vendor acted unreasonably. I shall not do so either, save to observe that, on the basis of the evidence before him, if he had found adversely to the vendor in respect of those grounds, those findings would be difficult to challenge as well.
[12]Fifty-Eighth Highwire Pty Ltd v Cohen (1996) 2 VR 64, 72.
For completeness, I shall turn to each of the grounds of appeal relied upon by the vendor.
Grounds 1, 2 and 3 can be considered together. The vendor contended that the learned magistrate failed to take into account various matters, including events which took place after the signing of the contract of the sale, and including the conduct and motivations of the purchaser. However, it is apparent from the reasons that the learned magistrate focussed, as he was required to do, on the conduct of the vendor in determining whether the vendor acted reasonably. It is apparent from the reasons that he was alert to at least some of these matters and circumstances in determining whether the vendor acted reasonably: rather, he did not consider that those matters excused the conduct of the vendor, or, more accurately, converted unreasonable conduct into reasonable conduct. Further, it could not be said that the learned magistrate’s findings were so bizarre or outrageous that no reasonable magistrate could have made those findings, or that the decision was arbitrary, capricious, or unreasonable.[13]
[13]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 [130].
The written submissions filed on behalf of the vendor prior to the hearing criticised the learned magistrate for considering ‘hypothetical’ matters, and asking ‘what would a reasonable person in the position of the [vendor] do?. Those criticisms are unwarranted. The learned magistrate was required to assess, objectively speaking, whether the vendor’s conduct was reasonable. Identifying what a reasonable person would have done in the circumstances is a logical, if not necessary part of the reasoning process in evaluating the actual conduct of the vendor.
The written submissions filed and served by the vendor after the hearing, in which the vendor commented upon the various authorities referred to at the hearing[14] focussed more on the reasonableness of his own conduct rather than that of the purchaser. The vendor submitted that there was a common theme in the authorities to the effect that a court will be more likely to find that a vendor’s conduct is unreasonable if it amounted to knowingly withholding information from the purchaser, and where the omission of the information resulted in the defendant being at a disadvantage. In the current case, the purchaser was aware of the absence of the proposed plan of subdivision, and as such, there was no withholding of information without the knowledge of the purchaser. Further, the proposed plan of subdivision was provided by the vendor to the purchaser’s solicitors within the three day cooling off period, thus enabling the purchaser to withdraw from the contract of sale without penalty. Finally, the purchaser was not disadvantaged by the absence of the proposed plan of subdivision. While the existence of an owner’s corporation has been held to be a material disadvantage,[15] s 7(1) of the Owners Corporations Act 2006 (Vic) exempts a two lot subdivision from compliance with a number of requirements of that Act, including the requirement for a managed owners corporation, thus imposing no financial disadvantage upon the purchaser. The vendor submitted that I should disregard the contents of the real estate agent’s brochure, which referred to an additional car space and ‘no body corporate’, because of the disclaimer at the foot of the second page of the brochure to the effect that:
All interested parties should make and rely upon their own enquiries in order to determine whether or not this information is in fact accurate.
[14]Paterson v Batrouney (2001) VConvR 54-639; Fifty-Eighth Highwire Pty Ltd v Cohen (1996) 2 VR 64; Nicolacopoulos v Khoury [2010] VCC 1576; Payne v Morrison (1992) VR 54-428.
[15]Nicolacopoulos v Khoury [2010] VCC 1576 [37].
The vendor’s later submissions are not without merit, and may well have found favour with the learned magistrate had they been made at trial. In particular, the argument that the provision of the proposed plan of subdivision was provided within the three day cooling off period during which the purchaser was entitled to avoid the contract has some force. The fact that the purchaser’s solicitors did not provide the proposed plan of subdivision to the purchaser until some days later is not something that could be blamed upon the vendor. However, the contract of sale did not require the provision of the proposed plan of subdivision until after the expiry of the cooling off period, and there was no evidence given that Mr Pole was alert to that issue when he provided the proposed plan of subdivision to his conveyancer. No submissions were made to the learned magistrate to the effect that provision of the proposed plan of subdivision within the cooling off period in effect remedied the deficiency.
However, the fact that there were arguments which could have been advanced which might persuade a decision maker to reach a contrary view does not mean that the learned magistrate erred in law in finding that the vendor’s conduct in not providing the proposed plan of subdivision with the section 32 statement was unreasonable. I doubt whether it must be shown that there was a knowing withholding of information in order to find that a vendor’s conduct was unreasonable, although I expect that would be a necessary element of a finding that a vendor had acted dishonestly. Indeed, in Fifty-Eighth Highwire Pty Ltd v Cohen,[16] the Court of Appeal stated:
While guidance may be obtained from decisions on s 14(1) … and similar provisions in the legislation relating to trustees and officers of corporations, it is desirable that the relatively simple words of the [provision] should not become unduly encrusted with authority.
[16](1996) 2 VR 64, 77.
Further, it must be remembered that the test of whether a vendor acted reasonably is separate from the question of whether the purchaser was disadvantaged by the failure to provide the necessary information in the section 32 statement, although it may well be that the vendor’s conduct might be evaluated, at least to some extent, in the context of the extent to which it could be foreseen that the purchaser may be misinformed about a material matter if complete and accurate information was not provided prior to the signing of the contract of sale. In the current case, contrary to the submissions of the vendor, the statements made in the real estate brochure regarding the absence of a body corporate and the availability of a second car space, along with the evidence of the purchaser and her husband about what was told to her by the real estate agent about what was common property, heightened the need for accurate information regarding the boundaries of the property to be provided prior to entry into the contract of sale. The existence of the disclaimer does not assist the vendor given the positive representations made in the brochure. Again, in any event, this was a submission which was not advanced before the learned magistrate.
Turning to ground 4, this ground attacks the failure of the learned magistrate to find that the purchaser was not a ‘creditable’ witness, and asserted that little of her evidence should be taken into account in determining whether the vendor acted reasonably. The learned magistrate made no findings as to the credit of the purchaser. However, that is no doubt because, consistent with what was required by the authorities, his focus was on the conduct of the vendor. In any event, an appellate court, even where appeals are not limited to questions of law, are notoriously reluctant to interfere with a trial judge’s findings regarding the credit of witnesses, and this is not the occasion to depart from that approach.
The fifth ground was that the learned magistrate erred in failing to find that the purchaser terminated the contract because of alleged building defects, not because of the vendor’s failure to include the proposed plan of subdivision in the section 32 statement. This ground conflates two separate issues: the learned magistrate’s failure to find that the purchaser was motivated by other considerations when she instructed her solicitors to rescind the contract, and secondly, that this was a matter relevant to determining whether the vendor acted reasonably. The first is purely a question of fact, and the learned magistrate’s findings (or lack of findings) are not amenable to attack as an error of law. The second matter again raises the issue of the learned magistrate’s primary focus as being on the conduct of the vendor, rather than the purchaser. In any event, the purchaser’s motivations for rescinding the contract of sale are of less significance than her legal entitlement to do so, although they might be tangentially relevant to the question of whether the vendor, if he had been found to have acted reasonably, ought to have been excused for his contravention and also possibly relevant to the question of whether the purchaser was in a worse position by reason of the vendor’s failure to provide the proposed plan of subdivision with the section 32 statement.
Turning to the last ground, concerning the learned magistrate’s findings regarding the extent of the vendor’s knowledge of the legal consequences of the failure to provide the proposed plan of subdivision with the section 32 statement, this is purely a finding of fact which was open to the learned magistrate to make.
Accordingly, the appeal should be dismissed, and I shall hear from the parties on the form of orders and the question of costs.
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