SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd

[2017] NSWCA 132

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132

Hearing dates:

29 July 2016

Decision date:

09 June 2017

Before:

McColl JA at [1],
Gleeson JA at [173],
Sackville AJA at [174]

Decision:

(1)   Appeal dismissed.

 

(2)   Order that the amount of $332,550 paid into Court on 27 May 2016 (representing the GST component of the purchase price for the property the subject of these proceedings), including any accrued interest on that amount, be paid out of Court (net of any expenses payable in the ordinary course) to Newhouse & Arnold Solicitors Law Practice Trust Account as the solicitors on the record for the respondent.

 

(3)   Order that the amount of $216,215.85 paid into Court on 27 May 2016 (representing the amount of interest payable to date under cl 41 of the contract for sale of the property the subject of these proceedings), including any accrued interest on that amount, be paid out of Court (net of any expenses payable in the ordinary course) to Newhouse & Arnold Solicitors Law Practice Trust Account as the solicitors on the record for the respondent.

 

(4)   Appellant to pay the respondent's costs of the appeal.

 (5)   Respondent to provide a tax invoice to the appellant pursuant to cl 13.10 of the contract for sale dated 19 August 2015 within 14 days.

Catchwords:

EQUITY – equitable remedies – rectification – auction for sale of commercial property – where contract of sale as completed provided for purchase price to be inclusive of GST – whether clear and convincing proof of common intention that purchase price exclusive of GST

 

APPEALS – rectification – test for appellate intervention

 

EVIDENCE – witness – cross-examination – rule in Browne v Dunn – obligation of procedural fairness – where failure to cross-examine on evidence – whether primary judge erred in accepting evidence – effect of “Browne v Dunn” agreement

JUDGMENTS AND ORDERS – interest – contractual provision requiring payment of interest if contract not completed on settlement date – no discretion as to rate or period of interest – Civil Procedure Act 2005 (NSW), s 100(3)(b)

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Property, Stock and Business Agents Regulation 2014 (NSW)

Cases Cited:

Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
AGC (Advances) Ltd v McWhirter (1977) 1 BPR 9454
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Bacchus Marsh Concentrated Milk Co Ltd (in Liq) v Joseph Nathan & Co Ltd (1919) 26 CLR 410; [1919] HCA 18
Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226
Boulas v Angelopoulos (1991) 5 BPR 11,477
Browne v Dunn (1894) 6 R 67
Bulstrode v Trimble [1970] VR 840
Bush v National Australia Bank Ltd (1992) 35 NSWLR 390
CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd [2017] VSCA 11
Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101; [2009] UKHL 38
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24
Connor v Blacktown District Hospital [1971] 1 NSWLR 713
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Fowler v Fowler (1859) 4 De G & J 250; 45 ER 97
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407
House v R (1936) 55 CLR 499; [1936] HCA 40
Issa v Berisha [1981] 1 NSWLR 261
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Lamshed v Lamshed (1963) 109 CLR 440; [1963] HCA 60
LM Investment Management Ltd (in liq) v Bruce & Ors [2014] QCA 136
Manly Council v Byrne [2004] NSWCA 123
Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382
Mayo v W & K Holdings (NSW) Pty Ltd (in liq) (No 2) [2015] NSWCA 119
Mortimer v Shortall (1842) 2 Dr & War 363
Newey v Westpac Banking Corporation [2014] NSWCA 319
Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478; [2009] VSCA 96
Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65
Seivewright v Brennan [2005] NSWSC 216; (2005) 12 BPR 22,979
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Shoreham Park Pty Ltd v John Foote Bloodstock Pty Ltd & Anor [2002] NSWSC 778
Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 91 ALJR 108
State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47
TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68
Tam v Mannall [2010] NSWSC 250
Terrence Parsons (a pseudonym) v R [2016] VSCA 17
West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431

Texts Cited:

Conveyancing Service NSW, LexisNexis
Cross on Evidence, LexisNexis

Category:

Principal judgment

Parties:

SAMM Property Holdings Pty Ltd (Appellant)
Shaye Properties Pty Ltd (Respondent)

Representation:

Counsel:
G George (Appellant)
K Rees SC and M P Cleary (Respondent)

  Solicitors:
Reimer Winter Williamson (Appellant)
Newhouse & Arnold (Respondent)

File Number(s):

2016/133578

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2016] NSWSC 362; [2016] NSWSC 497

Before:

Stevenson J

File Number(s):

2015/322545

HEADNOTE

[This headnote is not to be read as part of the Judgment]

The appellant, SAMM Property Holdings Pty Ltd (SAMM), contracted to purchase from the respondent, Shaye Properties Pty Ltd (Shaye), an industrial property in Wetherill Park (property) as a result of an auction on 19 August 2015. The directors of SAMM, Mr Mario Gallo and his nephew, Mr Mark Gallo, did not attend the auction but instead sent a real estate agent, Mr Parker, to bid on their behalf whilst they remained on the telephone to him throughout the critical parts of the auction. Mr Parker ultimately bid $3.325 million to purchase the property which the auctioneer, Mr Davidson, accepted.

Subsequently, contracts for sale of the property were executed and exchanged in the form of a draft that had been circulated prior to the auction which was ambiguous as to the treatment of goods and services tax (GST). The primary judge held, as was common ground at trial, that the effect of the executed contract was to provide for a purchase price of $3.325 million inclusive of GST.

Prior to completion, a dispute arose as to whether the purchase price was inclusive or exclusive of GST. SAMM commenced proceedings, seeking a declaration that, on its proper construction, the contract provided that GST was included in the purchase price. By cross-claim, Shaye sought a declaration that the parties’ common intention at the time of executing the contract was that the purchase price was $3.325 million plus GST and rectification of the contract accordingly. It also sought orders that SAMM pay interest on the balance of the purchase price in accordance with cl 41 of the contract.

At trial, eight witnesses gave evidence about what was said at the auction about GST. SAMM and Shaye’s witnesses’ evidence was sharply divided. The primary judge ultimately accepted the evidence given by Shaye’s witnesses that bids were to be “+ GST”. His Honour also held that SAMM’s witnesses must have heard Mr Davidson’s statements at the auction to that effect and accordingly intended to bid on that basis. Accordingly, his Honour concluded that the common intention of the parties was that the sale price would be $3.325 million plus GST, ordering rectification of the contract accordingly. In a separate judgment, his Honour found that SAMM was liable to pay interest on the purchase price in accordance with cl 41 of the contract.

SAMM’s notice of appeal contained effectively 31 grounds of appeal. The principal issues were:

(i)   Whether SAMM had demonstrated a Fox v Percy error to warrant appellate intervention in the primary judge’s decision to order rectification.

(ii)   Whether it was open to the primary judge to accept as “decisive” Mr Davidson’s evidence that at the outset of the auction he informed those attending, in short, that bids were exclusive of GST, an account recorded in an email he sent to Shaye’s real estate agent and solicitor providing his recollection of events at the auction, in circumstances where Mr Davidson was not cross-examined about the email and SAMM’s counsel contended the parties had a “Browne v Dunn” agreement.

(iii)   Whether, even accepting the evidence of Shaye’s witnesses, there was clear and convincing proof of a continuing common intention as to the payment of GST, existing up to the point of execution of the contract warranting a rectification order.

(iv)   Whether the primary judge erred in finding that SAMM was liable to pay interest on the unpaid balance of the purchase price in accordance with cl 41 of the contract.

Held, dismissing the appeal per McColl JA (Gleeson JA and Sackville AJA agreeing):

As to issue (i)

(1) The trial judge’s finding concerning the common intention of the parties is a mixed finding of fact and law. To justify an appellate court’s intervention in the factual element of such a finding of common intention, the appellant must establish that incontrovertible facts or uncontested testimony demonstrate the trial judge’s conclusions are erroneous, glaringly improbable, or contrary to compelling inference: [120] – [124].

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 applied.

(2) The rationale for rectification is that it is unconscientious for a party to a contract to seek to apply the contract inconsistently with what he or she knows to be the common intention of the parties at the time that the written contract was entered: [107] – [108].

Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407; Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65; Mayo v W & K Holdings (NSW) Pty Ltd (in liq) (No 2) [2015] NSWCA 119 applied.

(3) The type of common intention relevant to rectification is the subjective or actual intention of the parties, as opposed to the objective intention of the parties relevant to contract formation and construction: [111] – [115].

Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 91 ALJR 108; Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65; Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 applied.

(4)   SAMM failed to identify any matter of a relevant Fox v Percy nature to establish that the primary judge erred in concluding that the parties had a common intention at the time they executed the contract that the purchase price would be exclusive of GST, with GST to be borne by the purchaser. The primary judge was entitled to be satisfied that the evidence proved that the contract was mistaken in its treatment of GST, and that that treatment did not reflect the parties’ common intention held when the contract was executed: [115], [164] – [165].

As to issue (ii)

(1)   The rule in Browne v Dunn is an obligation of procedural fairness which counsel has when cross-examining a witness (both party witnesses and witnesses generally) to put to an opponent’s witnesses in cross-examination the nature of the case upon which it is proposed to rely in contradiction of the witness’s evidence. It facilitates the tribunal’s assessment of the reliability and accuracy of the witness. Parties cannot by agreement to which the court has acquiesced, authorise a course which denies elementary procedural fairness to a witness: [136] – [138].

Browne v Dunn (1894) 6 R 67; West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478; [2009] VSCA 96; State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 applied.

(2) The primary judge was entitled to consider Mr Davidson’s email as being “decisive” and reject the submission that it was a reconstruction, as accepting that submission would be a denial of procedural fairness in circumstances where counsel for SAMM failed to put that allegation to Mr Davidson: [144] – [145].

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 applied.

As to issue (iii)

(1) The parties’ common intention must be proved to a high standard, by clear and convincing proof. That the parties’ evidence concerning their intention may conflict does not mean the high standard cannot be attained. Whether there is proof of a common intention justifying the grant of rectification turns on whether the case has been proved on the balance of probabilities: [116] – [119].

Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 91 ALJR 108; Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407; Mortimer v Shortall (1842) 2 Dr & War 363; Newey v Westpac Banking Corporation [2014] NSWCA 319 referred to.

(2) The primary judge did not err in making the rectification order: [169].

As to issue (iv)

(1) The effect of rectification, when granted, is to relate back to the time of execution of the document. After rectification, the document is to be read as if it had originally been executed in its rectified form: [170].

Issa v Berisha [1981] 1 NSWLR 261 referred to.

(2) As the interest was payable by virtue of an agreement (cl 41 of the contract as rectified), the Court has no discretion as to the rate of interest or the period for which interest was payable: [170].

Civil Procedure Act 2005 (NSW), s 100(3)(b) referred to.

(3)   The primary judge was correct in concluding that SAMM was liable to pay interest on the purchase price in accordance with cl 41 of the contract.

**********

Judgment

1. McCOLL JA: The appellant, SAMM Property Holdings Pty Ltd (SAMM), appeals against a decision of Stevenson J in which his Honour found that the sale price of a property it had contracted to purchase from the respondent, Shaye Properties Pty Ltd (Shaye), was exclusive of goods and services tax (GST) and rectified the contract to reflect that conclusion. [1]

   1. SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2016] NSWSC 362.

2. Following his Honour’s orders, SAMM completed the contract. The effect of the rectification order was that SAMM had to pay additional amounts of $332,500 (being the GST component (1/11th) of the purchase price as shown on the unrectified contract) and $216,215.85 (being interest on the unpaid balance of the purchase price from 30 September 2015 (settlement date under the contract)), to settle the purchase. The GST component and interest were paid into Court to abide the outcome of the appeal.

Factual background

3. Shaye listed its industrial property in Wetherill Park (property) for public auction on 19 August 2015. SAMM was incorporated on 18 August 2015 for the specific purpose of purchasing the property. It was registered for GST. SAMM’s directors, Mr Mario Gallo and Mr Mark Gallo, Mario’s nephew, (Messrs Gallo hereafter, unless the context otherwise requires) did not attend the auction but sent an experienced real estate agent, Jody (Joe) Parker, to bid on its behalf. It was accepted that as Mr Parker was SAMM’s agent to conduct the bidding, SAMM was bound by his knowledge and intention. Messrs Gallo were “on the telephone to Mr Parker during the critical parts of the auction.” [2] Mr Parker bid $3.325 million to purchase the property. The auctioneer, Jesse Davidson, accepted that bid.

   2.    Primary judgment (at [16]).

4. A draft contract for sale on the form of the 2005 edition of the Contract for Sale of Land approved by the Law Society and the Real Estate Institute of New South Wales was provided to Messrs Gallo before the auction.

5. On the front page of the draft contract in the section headed Tax information, a box marked “GST: Taxable supply…yes in full” was crossed “X”. [3] Also on that page, between that part of the contract where provision was made for the signatures of the vendor and purchaser respectively, was another box inside which was written: “GST AMOUNT (optional) The price includes GST of :…” (GST amount box). This box was blank.

   3.    Ibid (at [5]).

6. Clause 13.2 of the contract stated:

“Normally, if a party must pay the price…to the other party under this contract, GST is not to be added to the price...”. [Emphasis in original.]

7. Clause 1 of the draft contract defined “normally” as “subject to any other provision of this contract”. The primary judge found that there was no “other provision” in the contract modifying the effect of cl 13.2. [4]

   4.    Ibid (at [8]).

8. After SAMM’s bid was accepted, contracts for sale of the property were executed and exchanged in the form of the draft contract, save for the insertion by Mr Davidson of the details of the purchaser, the contract price, deposit amount, the balance and the contract date on the front page. No amount was inserted in the GST amount box. Mr Parker saw him fill out the details on the front of the contract.

9. The primary judge held, as was common ground at trial, that “the effect of the contract, as executed, was to provide for a purchase price of $3.325 million inclusive of GST.”[5]

   5. Ibid (at [9]) [Emphasis in original]; Barrett J (as his Honour then was) made a finding to like effect with respect to a like filled up contract in Tam v Mannall [2010] NSWSC 250 (at [11]); see also (at [16]).

10. Prior to completion a dispute arose between the parties as to whether the contract price was inclusive or exclusive of GST.

11. SAMM commenced proceedings by way of statement of claim filed on 3 November 2015, alleging that, properly interpreted, the contract provided that GST was included in the price, and seeking a declaration to that effect. Shaye filed a cross-claim, amended prior to trial, which sought a declaration that it was the common intention of the parties at the time each entered the contract that the contract price was $3.325 million plus GST and rectification of the contract in accordance with that declaration. It also sought orders that SAMM pay interest on the balance of the purchase price pursuant to cl 41 of the contract. The primary judge granted the relief Shaye sought.

12. For the reasons that follow, I would dismiss the appeal with costs.

The evidence

13. At trial, eight witnesses gave evidence about what each said occurred at the auction. SAMM relied on the evidence of Mr Parker, Messrs Gallo and Mr Messina, who had recently purchased a neighbouring property from Shaye and attended the auction out of curiosity. Shaye relied on the evidence of Mr Davidson, as well as that of Chhay Hua Ung, Shaye’s director, and Elijah Shakir and John Micallef, two real estate agents engaged by Shaye to market the property.

14. Prior to the auction, SAMM’s solicitor, Anthony Brischetto, having reviewed the draft contract advised Messrs Gallo in an email dated 17 August 2015 that:

“11. GST - The contract discloses that the sale of the property is a taxable supply and that the normal method of GST calculation will be adopted. The contract is otherwise silent as to the treatment and payment of GST. Under the standard contract provisions (clause 13). The price includes GST. [sic, as in original] However, it is ordinarily the case on the sale of commercial properties that the price is exclusive of GST and that GST is payable by the purchaser in addition to the purchase price. I suggest that you instruct Joe to enquire at the auction to confirm the GST treatment under the contract. You should consider registering the unit trust for GST in the event that you are the successful bidder to enable you to claim an input tax credit for any GST under the contract.” [6] [Emphasis added.]

6.    Primary judgment (at [40]).

15. Prior to the auction, Mr Mario Gallo sent to Mr Parker Mr Brischetto’s email advising about the contract, which he “reviewed”. Mr Parker said he noted from that email that Mr Brischetto commented “that the contract provided for the price to be inclusive of GST”.

15. The auction was conducted in the front yard of the property. There were approximately thirty people present. Mr Parker said he was standing 20 to 30 feet away from Mr Davidson. According to Ms Ung’s affidavit, and a diagram she drew of the position of the critical bidders, she stood about 7 to 10 metres away from Mr Davidson, while the bidders were a similar distance from Mr Davidson “but on the other side.” The diagram she drew of the respective positions of those she described showed that Mr Davidson was roughly equidistant between her and the bidders, but somewhat to her right.

16. In his affidavit, Mr Davidson described his training as an auctioneer. Part of that training required him to follow seven steps, the third of which was, “Contract”. He said that during that step he looked at the front page of the contract “to see if the property is vacant and the GST taxable supply box has been marked ‘Yes’” and, if it was, he stated to those attending the auction:

“The sale today will be deemed a taxable supply therefore GST will be payable, payable by you the purchasers, your bids today are exclusive of GST and GST will be in addition to the knockdown price of today’s auction.”

18. He also said in his affidavit that when he attended the property at around 10am on the day of the auction, prior to its commencement, he saw “a written reserve price signed by the vendor for $3,500,000 plus GST”.

19. In cross-examination, Mr Davidson said he could “remember everything that took place on that day, within the auction format”. He also said that he informed those at the auction the sale was a “taxable supply”, not only because that was on the front page of the contract but also because it “was on the reserve price [letter]”. He accepted that the terms of any concluded contract were not set out in the reserve price letter, but in the contract for sale.

20. The witnesses gave the following evidence about what each heard Mr Davidson say before he opened the bidding:

Respondent’s witnesses:

(1)   Mr Davidson:

“The sale today will be deemed a taxable supply therefore GST will be payable, payable by you the purchasers, your bids today are exclusive of GST and GST will be in addition to the knockdown price of today’s auction.”

(2)   Ms Ung:

“Ladies and gentlemen, the property 3 Sleigh Place Wetherill Park will be sold today at auction. The property is vacant and 2040 square meters and the land is 3155 square meters. The property is a good location in Wetherill Park. Whoever bids today, the bids will be excluding GST.”

(3)   Mr Shakir:

“Please be aware the property is sold with vacant possession and is to be exclusive of GST. The property will be sold with vacant possession and as such the purchase price is exclusive of GST.”

(4)   Mr Micallef:

“GST will be payable on top of the successful bid price, does anyone have any questions? Let’s move on and get started.”

Appellant’s witnesses

(5)   Mr Parker:

“The sale is a taxable supply with GST in full. Otherwise you rely upon the contract for sale.”

(6)   Mr Mario Gallo:

“GST is a taxable supply and paid in full. If you have any questions by now you will have gone through the contract. Refer to the contract.”

(7)   Mr Mark Gallo:

“The GST – it’s a taxable supply in full. Rely upon the contract. It’s GST inclusive.”

(8)   Mr Messina:

“At the auction, the auctioneer made no statements to the effect that GST would be payable in addition to the purchase price or that any bids by made by bidders excluded GST. [Sic, as in original.]

I have read the affidavit of the auctioneer, Jesse Hunter Davidson, dated 26 November 2015. In particular, I have read paragraph 13 of that affidavit. The auctioneer did not say ‘your bids today are exclusive of GST and GST will be in addition to the knockdown price’, nor any words to that effect.”

21. The primary judge stated, that although each witness “gave evidence calmly and confidently”, and “seemed to be confident of the accuracy of his or her recollection”, there was “a sharp divide between the evidence given.” [7]

    7.    Ibid (at [18] – [19]).

22. The primary judge dealt first with the evidence given on behalf of Shaye. His Honour summarised Mr Davidson’s evidence as follows:

“[22]   In his affidavit, the Auctioneer said that before the auction he saw a letter signed by Ms Ung stating that the reserve price of the property was ‘$3,500,000 + GST’. That letter is dated 18 August 2015. I will call this letter the ‘Reserve Price Letter’.

[23]   The Auctioneer also said that it was his usual practice to look at the front page of the contract and that if, as here, the GST taxable supply box had been marked ‘yes’ and if, as here, the property was vacant, he would announce at the auction:

‘The sale today will be deemed a taxable supply therefore GST will be payable, payable by you the purchasers, your bids today are exclusive of GST and GST will be in addition to the knockdown price of today’s auction.’

[24]    Although this was not explored in cross-examination, it seems obvious that the Auctioneer inferred from the form of the Reserve Price Letter, the fact that the property was vacant, and the form of the front page of the draft contract that the sale price would be exclusive of GST.

[25] Thus, in his affidavit, the Auctioneer said that, before the auction commenced, he made an announcement in the terms set forth at [23] above.”

23. The primary judge found that although the detail of their evidence differed a little, in substance each of the other witnesses for Shaye agreed that Mr Davidson announced that the purchase price, constituted by acceptance of the highest bid, would be exclusive of GST. [8]

    8.    Ibid (at [26]).

24. After the auction, Mr Shakir prepared a “Sales Advice Notice” dated 19 August 2015 in which the “Purchase Price” was described as “$3,325,000 (excluding GST)”. He did not send the note to Shaye’s solicitors until 25 August 2015. The primary judge observed that “[b]y that date, the controversy between the parties as to whether the sale price was inclusive or exclusive of GST had arisen. Its weight must be assessed in light of that fact.” [9] Ultimately, it was one of the factors his Honour took into account in finding in Shaye’s favour. [10]

    9.    Ibid (at [30]).

    10.    Ibid (at [81]).

25. On 25 August 2015, in response to a request from Mr Shakir concerning “a possible concern with the GST component on the property” and a request that he provide his “recollection of events”, Mr Davidson sent an email to Mr Shakir, and to Shaye’s solicitor, in the following terms:

“I wanted to write to confirm the events which took place on the 19/8/15 at the subject property.

As you are aware we had a good deal of interest on the day, however the purchasers were not forthcoming with offers. Whilst relating to the property particulars and the all-important contract for sale I made a disclosure which is standardised for all commercial premises which are considered a ‘Taxable Supply’. I mentioned that ‘The sale is deemed to be a taxable supply, therefore GST will be payable, payable by you the purchasers and your bids today are EXCLUSIVE of GST’. My reserve price was $3,500,000. Bidding commenced and eventually ceased at $3,300,000. The agents then managed to extract a further $25,000 from the purchaser and the vendors agreed in writing to reduce their reserve to $3,325,000. The property was then sold.

The agents then asked for my help in exchanging the contracts. Unfortunately an interested party unknowingly walked off with the original contract of sale. I filled in the contract stating a sale price of $3,325,000, a deposit amount of $332,500 and a final amount of $2,992,500. No GST was added to this figure as the sale was deemed to be a taxable supply and GST was to be paid at settlement as I understood. The deposit was paid and agents as well as purchasers drove to the vendors’ solicitors office to finalise the exchange and crosscheck [the] contract.

In short we have seen this time and time again that purchasers attempt to avoid paying the GST component. It was clearly stated that GST was payable above and beyond the sale price and that the sale incurred GST.

I hope this assists, please don’t hesitate to contact me if you have any further issues.” [11]

11.    Ibid (at [31], [34] – [35]) [Emphasis in primary judgment.]

26. Mr Davidson said at trial that the email recorded “what he actually recalled doing at the auction”. [12]

    12.    Ibid (at [36]).

27. Mr Mario Gallo gave evidence in his affidavit that, as a result of receiving Mr Brischetto’s email, and a subsequent conversation with Mr Brischetto (the contents of which he did not set out in his affidavit), he was aware that the draft contract provided that the sale of the property was a taxable supply, the normal method of GST calculation would be adopted (that is, not the margin scheme of GST calculation), and the purchase price of the property would include GST.

28. Mr Mario Gallo also said that on the morning of the auction, he had breakfast with Mr Parker where he gave him instructions about bidding “up to $3.3 million at the auction, including GST”, and also said “that the only thing I need cleared up prior to the auction is that the contract is correct with its handling of GST.” Later when he and Mr Mark Gallo were at his office with Mr Parker, and he said that he went through each paragraph of Mr Brischetto’s advice on his computer screen, he said to Mr Parker, again, in relation to GST that “if they change how it’s treated under the contract, we need to change how much we bid. We only go to $3.3 million including GST.”

29. The primary judge found that despite his instructions, “Mr Parker did not, at the auction, in terms, make any enquiry about the ‘GST treatment of the contract’.” Instead, Mr Parker said he waited until Mr Davidson started “going through the contract” and then arranged to have Messrs Gallo at the other end of the telephone. [13] He deposed that at the auction, the following occurred:

    13.    Ibid (at [51] – [52]).

“…the auctioneer spoke about the contract for sale of land. He appeared to be holding a copy of the contract in his hand. He said:

‘Anyone who’s serious has obviously gone through the contract and has obtained their own legal advice.’

He then went through a description of the property from the front page of the contract, including the lot and deposited plan numbers and the fact that the property was to be sold with vacant possession.

The auctioneer then spoke about GST. He said:

‘The sale is a taxable supply, with GST in full. Otherwise, you rely upon the contract of sale.’

At that point, I said to Mario over the phone:

‘They’ve just gone through the GST now. It’s a taxable supply, GST in full. They rely upon the contract.’

Mario [Gallo] then said:

‘Go for it, Joe’.” [14]

14.    Ibid (at [53]); this was an extract from Mr Parker’s affidavit.

30. The primary judge said that in cross-examination, “Mr Parker said that in light of what he said he heard the Auctioneer say about GST, he ‘didn’t need to’ check whether GST was included in the sale price … because he understood that what he said the Auctioneer said was consistent with Mr Brischetto’s advice as to the effect of the contract.” Mr Parker denied that Mr Davidson said anything to the effect that the bids were “exclusive of GST” or that GST would be “in addition” to the final bid amount. [15]

    15.    Ibid (at [54] – [55]).

31. In the course of cross-examination, the primary judge asked Mr Parker what he understood “GST in full” to mean. His response was” [t]hat there would be GST within the price.” He said he had used that expression at auctions.

32. In the course of cross-examination, Mr Parker agreed with Mr M P Cleary of junior counsel, who appeared for Shaye at the trial, that it was “not uncommon” that “at auctions for the sale of commercial property where the property is vacant, for bids to be made by bidders … that are exclusive of GST” and that “at the end of the auction, in those cases, GST is added to the knockdown price”. He denied, however, that that was what happened in this case.

33. When Mr Parker phoned from the auction, Mr Mario Gallo said he put the call on speaker phone so that Mr Mark Gallo could also hear what was said. He then said he heard Mr Parker say what I have set out above. [16]

    16.    See (at [20](6)) above.

34. Mr Mario Gallo said that during the auction, Mr Parker conveyed the bids to him and Mr Mark Gallo, but added that he could “hear the bidding directly through the phone also.” He said that at the stage that Mr Parker bid $3.3 million, he heard someone approach Mr Parker and say something which he could not hear and, after other exchanges between Mr Parker and whomever he was speaking to, Mr Parker said to him “we should bid a bit further – another $25K”, to which he responded “we’ll only go another 25 if we know she’ll say yes” and Mr Parker said he didn’t know “that she’ll do that. We won’t hear her answer unless we offer further,” at which stage he authorised him to offer another $25,000 which secured the property. In cross examination, Mr Mario Gallo agreed that Mr Parker said to him on the telephone that “the agent has shown me the reserve.”

35. There were some discrepancies between Mr Mark Gallo’s version of the conversation with Mr Parker and Mr Mario Gallo prior to the auction on which little appears to turn. Mr Mark Gallo said that he could not hear Mr Davidson clearly and when, at one stage during a pause, he asked Mr Parker what had been said, Mr Parker informed him of the matters I have set out above concerning what Mr Davidson said about GST. [17]

    17.    See (at [20](7)) above.

36. Mr Mark Gallo also recounted in his affidavit the exchanges concerning the final increase in the bidding by $25,000. In oral testimony, he said he could not recall that bidding stalled when Mr Parker offered $3.25 million. He also could not recall that Mr Parker either said the agent had shown him the reserve or that Mr Parker said he would increase the bid to $3.3 million.

37. The primary judge summarised the evidence given by Messrs Gallo as follows:

“[57]    Mr Mario Gallo gave a similar account of what Mr Parker told him the Auctioneer had said about GST and his instructions to Mr Parker to ‘go for it’. Mr Mario Gallo said that, in any event, he could, over the telephone, hear what the Auctioneer was saying.

[58]    Mr Mark Gallo’s account of the matter differed a little. In cross-examination he said he could not hear what the Auctioneer said but, according to his affidavit, Mr Parker had said that the Auctioneer said:

‘The GST – it’s a taxable supply in full. Rely on the contract. It’s GST inclusive’.

[59]    Mr Mark Gallo was the only witness who claimed to have heard anyone suggest that the Auctioneer had used the expression ‘GST inclusive’.”

38. In respect of Mr Messina’s evidence, the primary judge made the following remarks:

“[60]   Mr Messina swore an affidavit in which he made the positive assertion that the Auctioneer ‘made no statements to the effect that GST would be payable in addition to the purchase price or that any bids made by bidders excluded GST’ and that the Auctioneer ‘did not say’ the words that the Auctioneer swore he did say. However, in cross-examination, Mr Messina said no more than that he ‘did not hear’ anything to this effect. It was obvious to me that, in his affidavit, he had been over-proofed. His evidence was of no assistance in determining the issue before me.”

39. In the course of Mr Davidson’s cross-examination, Mr G George informed the primary judge that he thought that he and Mr Cleary had an agreement “that we are not going to take any Browne v Dunn points, so I am not proposing to put everything that’s controversial … ”. Apparently on that basis, he did not cross-examine Mr Davidson about what SAMM’s witnesses said Mr Davidson had said about GST or about the 25 August email. I deal with the significance of this stance later in these reasons.

The Reserve Price Letter

40. At trial, there was a controversy as to whether Mr Parker had seen the Reserve Price Letter [18] at the auction. Mr Shakir deposed in his affidavit that he showed it to Mr Parker in the following circumstances. At some stage in the auction, bidding stalled. Mr Shakir said:

“I then proceeded to walk over to a person I know to be the buyer’s agent, Joe Parker, and have [sic, as in original] a conversation with words to the following effect:

I said: I have managed to reduce the reserve price to 3.35 million and I will show you the reserve letter to confirm the price has been reduced.

I took the reserve letter from my jacket and showed Joe Parker the letter. I noticed that Joe was on the phone at the time.

Joe then said: The agent has shown me the reserve.

Joe then said: We will increase our price to $3.3 million.

I said: Would you be prepared to meet me in the middle at $3.325 million.

To give Joe Parker an opportunity to consider their position I moved a few meters away to give him some privacy and then came back a few moments later…”. [19]

18.    See (at [22]) above.

19.    Primary judgment (at [61] – [62]).

41. Ms Ung and Mr Micallef also gave evidence that they saw Mr Shakir show Mr Parker the Reserve Price Letter. Mr Parker denied that Mr Shakir showed him the letter, saying “emphatically” in cross-examination that he had never seen the letter “except in these proceedings”. [20] The primary judge concluded that Mr Parker’s evidence in this respect could not be correct, for the following reasons:

“[67]    As I have set out above, Mr Shakir said that when he showed Mr Parker the letter, Mr Parker was on the telephone and that he said to the person to whom he was speaking on the telephone ‘the agent has shown me the reserve’.

[68]   The person to whom Mr Parker was speaking was Mr Mario Gallo.

[69]   In cross-examination Mr Gallo agreed, without hesitation, that shortly after the bidding had stalled, Mr Parker said to him ‘the agent has shown me the reserve’.”

20.    Ibid (at [65]).

42. This evidence satisfied the primary judge that, contrary to Mr Parker’s evidence, he did see the Reserve Price Letter at the auction, and that Mr Parker “could not have failed to see that it showed the reserve to be ‘+ GST’.” [21]

    21.    Ibid (at [70] – [71]).

Resolving the conflicting evidence

43. The primary judge acknowledged the “striking difference” between the recollections of the witnesses called by the parties. His Honour said their evidence could not be reconciled. [22]

    22.    Ibid (at [72] – [73]).

44. His Honour described the auction as having “[taken] place on site, in a relatively small area” and noted that “Ms Ung gave unchallenged evidence that she was standing ‘about 7 – 10 metres away from the auctioneer’ and that ‘the bidders were also about 7 – 10 metres from the auctioneer’.” [23] His Honour also recorded that neither Mr Parker nor Mr Mario Gallo suggested that “they had any difficulty hearing exactly what the Auctioneer said. Indeed, they were both adamant that they clearly heard what they contend he said.” Accordingly, his Honour concluded that “[i]f the auctioneer did say that bids were to be exclusive of GST, and that GST would be added to the ‘knockdown price’ at the auction, Mr Parker and Mr Gallo must have heard it.” [24]

    23.    Ibid (at [74]).

    24.    Ibid (at [75] – [76]).

45. The evidence which his Honour found to be decisive in resolving the conflict was Mr Davidson’s email of 25 August 2015, [25] for the following reasons:

“[78]    It constitutes an almost contemporaneous note by the Auctioneer of what he said at the auction. As I have said, he prepared it in response to the open question asked of him by Mr Shakir to which I have referred.

[79]    Although Mr George submitted that I should find ‘it’s Mr Davidson trying to reconstruct things essentially to save his own skin’, Mr George did not put that proposition to the Auctioneer in cross-examination. Indeed, as I have said, Mr George did not ask the Auctioneer any questions about the email.

[80]   I accept the Auctioneer’s evidence that the email reflects his actual recollection of what occurred at the auction and, in particular, his actual recollection that at the auction ‘it was clearly stated that GST was payable above and beyond the sale price’.

[81]   I also accept the Auctioneer’s evidence as to what he said at the auction concerning GST. That evidence was corroborated by his email and by the evidence of Ms Ung, and Messrs Shakir and Micallef and (perhaps a little less decisively) by Mr Shakir’s Sales Advice Notice.

[82]   I find that Mr Parker and Mr Mario Gallo must have heard the Auctioneer say these words. I do not accept their evidence that they only heard the Auctioneer say ‘the sale is a taxable supply, with GST in full. Otherwise, you rely on the contract of sale’.

[83]   I certainly do not accept Mr Mark Gallo’s evidence that Mr Parker told him that the Auctioneer had said that ‘it’s GST inclusive’. Not even Mr Parker asserts the Auctioneer said those words.

[84]   Further, as I have found, by the time he made his final bid, Mr Parker had seen the Reserve Price Letter. From that he must have seen that the Vendor’s intention was that the sale price be ‘+ GST’ and that his bids were being received by the Auctioneer on that basis.” [Emphasis added.] [26]

25.    Ibid (at [77]).

26.    Mr George accepted in the course of submissions that it followed from the second sentence in [84] that his Honour concluded that Mr Parker read the Reserve Price Letter.

46. The primary judge found that “Mr Parker and Messrs Gallo knew that Mr Parker’s bids were being taken by the Auctioneer as being exclusive of GST and that Mr Parker was well aware that his final bid of $3.325 million was accepted by the Auctioneer on the basis that it was exclusive of GST.” [27] It followed that the common intention of the parties was that the sale price would be $3.325 million plus GST. [28] Accordingly, his Honour made the following order:

“1.   Orders that the contract for sale of land dated 19 August 2015 made between the plaintiff as purchaser and the defendant as vendor for the sale of the property known as 3 Sleigh Place Wetherill Park (‘the contract’) be rectified by:

(a)   Substituting on the contract’s front page where the ‘price’ is set out, the figure $3,657,500 for the figure $3,325,000; and

(b)   Substituting on the contract’s front page where the ‘balance’ is set out, the figure $3,325,000 for the figure $2,992,500.”

27.    Ibid (at [85]).

28.    Ibid (at [86]).

Costs judgment

47. The primary judge dealt with interest and costs in a separate judgment, delivered on 22 April 2016. [29] Shaye claimed interest by reason of cl 41 of the contract, which was in the following terms:

“In the event of the Purchaser failing to complete this contract in accordance with the provisions hereof for any reasons other then [sic: than] the default on the part of the Vendor the Purchaser shall in addition to any moneys payable pay at the time of completion interest calculated in respect of the balance of purchase money for the period from the time specified herein for completion or from such later time that the Vendor notifies the Purchaser that he she or it is ready, willing and able to complete and the actual time of completion at the rate of ten percent (10%) p.a. Such amount is agreed by the Purchaser to be a fair assessment of compensation for damages suffered by the Vendor and the condition for payment thereof shall be an essential term of the Contract. The right to interest does not limit any other rights the Vendor may have as a result of the Purchasers failure to complete this contract in accordance with the terms hereof.”

29. SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2016] NSWSC 497 (costs judgment).

48. The primary judge summarised cl 41 as follows:

“The clause is directed to the circumstance of the purchaser not completing the contract:

(1) ‘in accordance with the provisions hereof’; and

(2) for reasons ‘other then [sic: than] the default on the part of the Vendor’.”

49. His Honour applied the principle that “…the effect of rectification, when granted, is to relate back to the time of execution of the document, and, after rectification, the document is to be read as if it had originally been executed in its rectified form.”[30]

    30. Issa v Berisha [1981] 1 NSWLR 261 (at 265) per Powell J.

50. In the light of his finding that the common intention of the parties was that the purchase price was $3.325 million plus GST, the primary judge considered that “[t]he effect of the order for rectification will be that the document executed by the parties on 19 August 2015 reflects that common intention”, such that “[t]he ‘provisions’ of the contract will be taken to have always been to that effect.”

51. In his Honour’s view, SAMM had failed to complete the contract in accordance with its terms, not due to any “default” of Shaye, but because SAMM had insisted on completing only on the terms of a document that was found not to reflect the parties’ common intention. [31]

    31.    Costs judgment (at [10] – [11]).

52. His Honour rejected SAMM’s contention that cl 41 was void as a penalty for reasons which are not challenged on appeal.

53. His Honour concluded that the appellant was liable to pay interest on the purchase price in accordance with cl 41. He made orders that Shaye was entitled to interest on the purchase price until completion and costs on the ordinary basis. [32]

    32.    Costs judgment (at [21]; [27]).

Issues on appeal

54. The notice of appeal contains a definitional paragraph (“ground 1”) then 14 further grounds of appeal each divided into multiple sub-paragraphs which amount to effectively 31 grounds of appeal. In its written submissions, SAMM addressed the grounds of appeal under the following topics:

1. the primary judge ought not to have found that Mr Davidson said GST was to be added to the property’s “knockdown price”; [33]

   33.    Grounds 2, 4 – 6, 8, 9 and 13.

2. the primary judge ought not to have found that SAMM’s witnesses heard Mr Davidson say that GST was to be added to the property’s “knockdown price”; [34]

3. the primary judge’s findings about Mr Parker and the Reserve Price Letter were not open on the evidence; [35]

4. Mr Davidson’s words about GST and the Reserve Price Letter did not establish that SAMM or Mr Parker, by bidding, had a common intention that the sale price was $3.325 million plus GST; [36]

5. an order for rectification should not have been made; [37] and

6. the primary judge erred in finding that SAMM had a liability to pay interest on the unpaid balance of the purchase price. [38]

   34.    Grounds 2 and 7.

   35.    Grounds 2, 4 – 6, 8, 9 and 13.

   36.    Grounds 2 and 7.

   37.    Ground 2.

   38.    Grounds 14 – 15.

55. I have treated each heading as, effectively, setting out the substance of the numerous grounds and sub-grounds of appeal.

56. SAMM seeks, relevantly, a declaration that the contract provided that the sale price of the property was $3.325 million including GST and an order that Shaye specifically perform the contract as so expressed. However, the contract was settled on 27 May 2016. Following the hearing in this Court, each party submitted proposed short minutes setting out the orders each sought if successful. In SAMM’s case, if unsuccessful, it seeks an order that Shaye provide a tax invoice pursuant to cl 13.10 of the contract so that it can claim an input tax credit for the GST it will be required to pay.

Appellant’s submissions

57. Mr George, who appeared for SAMM on appeal and at trial, described the appeal as challenging the validity and integrity of the primary judge’s decision-making process, the findings of fact his Honour made and the ultimate finding of law that the parties had a common intention that bids were made on a “+ GST” basis and that an order for rectification ought to have been made.

58. Mr George contends that the primary reason the primary judge fell into error was because, in arriving at his conclusions (with the possible exception of that concerning what Mr Davidson said about GST), his Honour used propositional logic, that is to say, deductive reasoning and, as two or more propositions were used to arrive at his Honour’s conclusion, syllogistic reasoning. Mr George accepted that deductive reasoning was a useful and necessary decision-making tool but contended that any conclusion arrived at using that process was only as good as the propositions used. He described the saying “garbage in, garbage out” as suggesting the problems that would arise from using that methodology. It is not entirely clear to what, if any, aspect of the primary judgment Mr George intended to direct these remarks. I have not discerned any part of his Honour’s reasons which might attract that offensive epithet.

Whether the primary judge erred in finding that the Auctioneer said GST was to be added to the property’s “knockdown price”

59. Mr George first took issue with the primary judge’s characterisation of Mr Davidson’s email of 25 August 2015 as “decisive”. In particular, he contends his Honour appeared to have accepted its contents uncritically and to have accorded it heightened evidentiary status first because it was “contemporaneous” and secondly, because Mr Davidson was not cross-examined about it.

60. Mr George contended that the email could not be described as “contemporaneous” as it was drafted and sent after Mr Shakir requested Mr Davidson provide “an email with your recollection of events”, in circumstances where he knew there was a “possible concern with the GST component on the property” and that his conduct of the auction was the source of the problem. Accordingly, Mr George contends the email “neither contained the contents of a file note made shortly after the Auction … nor was it a contemporaneous document.” Rather, he submitted, the email was clearly self-serving and the primary judge ought to have given it little, or no, weight.

61. Mr George also submitted that the primary judge accepted the evidence in the email because Mr Davidson was not cross-examined about its contents. He contested this proposition on the basis that it presupposed that the email’s forensic value rose above Mr Davidson’s affidavit and oral evidence, and also presupposed that cross-examination had some utility.

62. Mr George submitted that the primary judge’s concerns suggested a Browne v Dunn [39] point. However, he argued that as the proceedings had been conducted on affidavits, that rule had limited, if no, application in such circumstances. He also contended that there was an agreement between the parties that Browne v Dunn points would not be taken.

    39. (1894) 6 R 67.

63. Next Mr George submitted that the email could not be “decisive”, when regard was had to all the evidence and the following matters.

64. First, Mr Davidson accepted he had no records of what occurred at the auction or any recollection of what he said but, rather, relied on his training and “a process that we follow, each and every auction” in giving his evidence.

65. Secondly, Mr George submitted there were inconsistencies between Mr Davidson’s affidavit and the email, as the latter did not include the statement in his affidavit that “GST will be in addition to the knockdown price of today’s auction.” He complained the primary judge failed to appreciate and consider these inconsistencies.

66. Thirdly, Mr George submitted it was “incontrovertible” that Mr Davidson did not understand what the contract said about GST and that the information he gave the auction’s participants about GST during his opening remarks was wrong, a matter which “should have concerned the trial judge [but] did not.”

67. Finally, Mr George submitted that the primary judge failed to consider the point that, as Mr Davidson told bidders, “I will take the bulk of this contract as being read but more importantly understood by yourselves and your legal representatives prior to today’s auction,” he was giving them inconsistent advice. On the one hand, if Mr Davidson was to be believed, he was telling them that GST was to be added to the “knockdown price”, on the other hand he was telling bidders that the contract was the most important document in the auction process.

68. In summary, Mr George submitted that because of the differing versions between what Mr Davidson said in the 25 August email as opposed to his affidavit concerning what he said at the auction about GST, his evidence was unreliable and could not be accepted.

69. Mr George also submitted that when critically examined, inconsistencies between the various versions Shaye’s witnesses gave of what Mr Davidson said meant that the primary judge erred in concluding that those witnesses corroborated Mr Davidson’s evidence.

70. In this respect, he contended that Ms Ung said Mr Davidson mentioned GST three times and did not give an account of what he said about GST which bore any similarity to Mr Davidson’s evidence. Mr George made similar criticisms of the evidence of Mr Shakir and Mr Micallef, neither of whose recollections of Mr Davidson’s statement he suggested bore any similarity to Mr Davidson’s evidence. In particular, he noted that neither recollected that Mr Davidson said “GST will be in addition to the knockdown price”.

71. Next, insofar as SAMM’s witnesses were concerned, Mr George submitted that, having regard to the primary judge’s opinion concerning the way each witness gave his or her evidence and the confidence each displayed in the accuracy of his or her recollection, [40] it was perverse of his Honour not to accept the evidence of SAMM’s primary witnesses, Mr Parker and Mr Mario Gallo, as to what Mr Davidson said.

    40.    Primary judgment (at [18]).

72. Mr George also criticised the primary judge for not explaining how his finding could be reconciled with what Mr George contended were his Honour’s conclusions about the witnesses’ credit. He complained that the effect of his Honour’s criticism was that SAMM’s witnesses had lied and that the unstated consequences of this was that they “perpetrated a fraud and conspired to gain a financial advantage” where there was no motivation disclosed in the evidence to do so.

73. Mr George next submitted that the primary judge erred in rejecting Mr Messina’s evidence who, he submitted, was the only independent witness called. He submitted that Mr Messina’s evidence that Mr Davidson did not say “your bids today are exclusive of GST and GST will be in addition to the knockdown price” or words to that effect suggested Mr Messina had a reasonable recollection of what transpired at the auction. Mr George also submitted that the primary judge unfairly summarised the evidence Mr Messina gave in cross-examination. He contended Mr Messina’s recollection of the auction was reliable as demonstrated by the fact that he could recall Mr Davidson’s opening remarks including what he said about a spa bath. Accordingly, Mr George submitted Mr Messina’s evidence raised a significant doubt that Mr Davidson either said GST was payable or that people attending the auction heard those words. He contended that the primary judge ought to have considered the evidence in this context.

74. Finally, in relation to ground 1, Mr George submitted that the primary judge erred in failing to consider that a Jones v Dunkel [41] inference was available from the fact that Ms Ung gave evidence that after the auction she asked Mr Shakir for the telephone numbers of two people who attended the auction to give to her solicitor and that she was given those details. This appears to relate to a statement Ms Ung attributed to Mr Shakir that he had “two independent buyers who have given me letters about that [sic, as in original] the property price excluded GST”, which had already been passed to “CBRE legal team.” He also observed that during his cross-examination of Ms Ung the primary judge had commented “that if there is a Jones v Dunkel point anywhere, you have established it”. Notwithstanding that remark, Mr George complained that once it was established other persons were at the auction who could give evidence about what was said, an inference was open that there was no independent witnesses willing to give evidence to support Shaye’s case.

Whether the primary judge erred in finding that the appellant’s witnesses “must have heard” the Auctioneer say GST was to be added to the property’s “knockdown price”

41. (1959) 101 CLR 298; [1959] HCA 8.

75. Mr George submitted that it was not open to the primary judge to find that Mr Parker and Mr Mario Gallo “must have heard” Mr Davidson say that GST was to be added to the property’s “knockdown price”, despite their denial. He contended that this finding depended on Ms Ung’s evidence, however as Mr Parker and she were not standing next to each other, it did not follow that if Ms Ung heard something said, Mr Parker also heard it.

Other matters

76. Mr George also criticised the primary judge’s acceptance of Mr Davidson’s evidence on the basis that his Honour considered Mr Davidson’s statement “in a piecemeal fashion by examining the words said about GST in isolation, rather than as part of the longer narrative” of his opening remarks. He submitted the words “GST is to be added to the knockdown price of today’s auction” had much less force and effect when placed in context. He contended there was a real possibility that they were neither heard nor understood by SAMM’s witnesses.

77. Secondly, Mr George submitted the primary judge ought to have considered SAMM’s motivation for buying the property and being represented at the auction. He contended that the primary judge accepted that SAMM was sensitive about the price it was prepared to pay to purchase the property and alert to what the contract said about GST. [42] In such circumstances, he submitted the question arose as to why SAMM would risk incurring a potential liability for GST of $332,500 and paying $3.657 million for the property, which was a 20% premium to the price it was prepared to pay. He contended that to do so would be nonsensical and suggests SAMM also had a premeditated plan to take financial advantage of Shaye.

Whether the primary judge’s findings about Mr Parker and the Reserve Price Letter were available on the evidence

42.    See primary judgment (at [45] – [50]).

78. Mr George submits that the primary judge’s conclusion that Mr Parker saw the Reserve Price Letter at the auction was unremarkable because Mr Parker admitted he had seen it, in the sense that he said Mr Shakir had waved a letter in front of him and told him it was the “reserve letter”. However, he criticised the inference the primary judge drew that he “must have” seen the letter, read it and understood its contents. Mr George submitted there was no evidence that Mr Parker read and understood the letter’s contents, or, further, understood from reading the letter that there was a correlation between what the letter said about the reserve price being “+ GST” and the manner in which bids were being accepted by Mr Davidson.

79. Mr George submitted that such a mental exercise “would have been a remarkable effort [on Mr Parker’s part] as he was the highest bidder at the Auction, [was] on the phone talking to Mr Mario Gallo and [was] reading and interpreting the letter’s contents at the same time.” He also contended that, even if Mr Parker did see in the sense of read, the Reserve Price Letter, the primary judge’s finding that there was a correlation between the letter’s contents and the manner in which bidding occurred during the auction was “a step too far”. He argued that the letter did not nullify the inference available from the contract that, as the price was GST inclusive, bids were GST inclusive.

80. Mr George advanced six other reasons why the primary judge ought to have concluded Mr Parker neither read nor understood the contents of the Reserve Price Letter. One was that Mr Davidson had agreed that the Reserve Price Letter had nothing to do with the purchaser. That was a reference to Mr Davidson’s agreement in cross-examination that such a letter did not set out “the terms of any concluded contract”. Mr George referred to cl 15(1)(a) of the Property, Stock and Business Agents Regulation 2014 (NSW) (Property Regulation) which requires the vendor’s reserve price to be given in writing to the auctioneer before the auction commences as the reason why the letter was provided to Mr Davidson. He contended that the Reserve Price Letter told Mr Davidson that Shaye’s reserve price was “$3.5 million + GST” or “$3.850 million on a GST inclusive basis.”

78. Mr George’s other reasons, in my view, are either irrelevant, are repetitive (what the letter may have conveyed to Mr Parker, the complexity of reading a short statement including “+ GST” while speaking on the telephone), Mr Parker’s explanation of how he came to seek instructions to increase SAMM’s bid to $3.325 million and slight differences in recollection between Mr Shakir and Ms Ung about minor matters said to raise significant doubts about their reliability.

Whether the Auctioneer’s words about GST and the Reserve Price Letter established a common intention that the sale price was exclusive of GST

82. Mr George’s submission on this point, in essence, rolled up the previous criticisms of the primary judge’s reasoning processes to contend that, nevertheless, his Honour’s findings did not support his conclusion that the parties had the common intention necessary to support an order for rectification.

83. Mr George submitted that the primary judge had to determine whether a subjective or objective test was to be used when deciding whether the parties had a common intention. He contended it was not clear what test the primary judge employed, although his Honour’s use of the word “knew” and the phrase “well aware” suggests he might have applied a subjective test. Mr George submitted that Chartbrook Ltd v Persimmon Homes Ltd [43] suggests an objective test was appropriate, and, on this basis, contends the primary judge fell into error.

    43. [2009] 1 AC 1101; [2009] UKHL 38 (Chartbrook) (at [64] – [67]) per Lord Hoffmann.

84. Mr George then contended, again by revisiting the facts already canvassed, that the preponderance of the evidence properly analysed, led to the conclusion that the correct finding was that SAMM’s witnesses did not know bids were being taken on a “+ GST” basis, and, accordingly, did not support the primary judge’s findings in respect of a common intention.

85. Mr George also advanced an alternate hypothesis which he submitted the primary judge failed to explore. This was that, if Mr Davidson did say GST was to be added to the “knockdown price”, and Mr Parker and Mr Mario Gallo heard it, it was not clear why this information would concern them. He submitted that if Mr Davidson was mistaken about what the contract said and the contract did not express Shaye’s intention about GST, this was Shaye’s problem. SAMM was entitled to proceed on the contract’s terms and to bid at the auction on that basis.

The rectification order

86. Mr George contended that while the primary judge referred to the principles concerning the relevant test for rectification, his Honour did not apply them correctly.

87. Mr George submitted that the power to order rectification should be used with “extreme care and caution”, requires evidence of the “clearest and most satisfactory description” and must be proved so as to “leave no fair and reasonable doubt upon the mind that the deed does not embody the final intention of the parties.”[44]

    44. Fowler v Fowler (1859) 4 De G & J 250 (at 264 – 265); 45 ER 97 (at 103) (cited in Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 (Franklins) (at [453]) per Campbell JA).

88. Mr George submitted the evidence did not satisfy this evidentiary threshold, and accordingly, the primary judge was not entitled to make an order for rectification. Mr George set out three matters in support of this proposition. First, that there was no doubt SAMM intended to purchase the property for no more than $3.3 million inclusive of GST, secondly that SAMM executed a contract which provided that the sale price was $3.325 million inclusive of GST and thirdly, the primary judge found that Mr Davidson only said once that GST was to be added to the “knockdown” price.

The award of interest

89. Mr George submitted that the primary judge erred in requiring SAMM to pay interest on the unpaid balance of the purchase price, because on two occasions, on 19 October 2015 and 9 December 2015, SAMM offered to complete the contract by paying the price Shaye sought, being the amount of $3,657,500, but subject to a term that the GST sum of $332,500 be paid into a controlled monies account. Neither offer was accepted and interest continued to accrue.

90. Mr George argued the primary judge erred in finding that neither offer would have amounted to “completion in accordance with the contract”. He contended first, that the relevant time to consider the offers was when they were made and in this way, it was Shaye which was “in default”, and secondly, if, as was held in Issa v Berisha, an order for rectification has effect from the date of a contract, an exception to this rule ought to apply when offers to settle are made.

An additional matter

91. Seeking to invoke the exception in Coulton v Holcombe,[45] Mr George sought leave to raise a further matter not raised in the court below, or in the notice of appeal. This was that as to complete the contract, SAMM had to pay interest of $216,215.85 in addition to the purchase price, this was an additional reason why an order for rectification ought not to have been made. In his submissions in reply, Mr George sought further to support that submission relying on the proposition that rectification is an equitable remedy. He referred to Lamshed v Lamshed,[46] a case concerning the effect of laches on the making of an order for specific performance, and to Issa v Berisha,[47] where Powell J left open the possibility that, in some circumstances, delay with prejudice might warrant refusing a rectification order.

    45. (1986) 162 CLR 1; [1986] HCA 33.

    46. (1963) 109 CLR 440; [1963] HCA 60.

    47.    (at 265 – 266).

Shaye’s submissions

Whether the primary judge erred in finding that the Auctioneer said GST was to be added to the property’s “knockdown price”

92. Ms K Rees of senior counsel, who appeared for Shaye on appeal with Mr Cleary, but not at trial, submitted that the fact Mr Davidson was not challenged in cross-examination as to his evidence about what he had said at the auction about GST and about the accuracy of his 25 August email was fatal to SAMM’s submission. She contested the proposition that there was any Browne v Dunn agreement, observing such a suggestion was gainsaid by Mr Cleary’s cross-examination of SAMM’s witnesses. In any event, she submitted, any such agreement would not extend to failing to challenge matters such as the veracity of Mr Davidson’s evidence which went to his credit.

93. Ms Rees contended the primary judge was correct to reject Mr George’s submission at trial that Mr Davidson’s email was an attempt “to reconstruct things … to save his own skin”. She submitted that Mr George had been obliged, as a matter of fairness, to put this to Mr Davidson in cross-examination before making the submission that it went to his credit. [48]

    48.    Browne v Dunn (at 70 – 71) per Lord Herschell LC; (at 76 – 77) per Lord Halsbury.

94. Secondly, Ms Rees emphasised that the primary judge treated Mr Davidson’s email as “an almost contemporaneous note” rather than “contemporaneous”. She acknowledged the probative value of the email was less than if it had been typed whilst the auction was underway, or immediately afterwards, but submitted that it nonetheless contained Mr Davidson’s account prepared six days after the auction, and, accordingly, the primary judge was entitled to treat it as likely to be accurate.

95. Thirdly, Ms Rees submitted that Mr Davidson’s evidence was corroborated by Shaye’s other witnesses. Each recalled hearing Mr Davidson announce at the commencement of the auction that bids would be exclusive of GST, and that bids would be accepted on that basis. Ms Rees also pointed out that neither Mr Shakir or Mr Micallef was challenged as to their affidavit evidence concerning what each said he heard Mr Davidson say about GST.

96. Fourthly, Ms Rees pointed out that SAMM’s evidence about what Mr Davidson said was inconsistent. She referred to Mr Mario Gallo’s affidavit evidence as to what he heard Mr Davidson say at the auction which was inconsistent with a letter from SAMM’s solicitors’ of 24 August 2015 purporting to recount the events at the auction which was drafted on his instructions. Whereas in his affidavit, Mr Mario Gallo said that Mr Davidson said “GST is a taxable supply and paid in full”, the 24 August letter said that “at the auction, the auctioneer indicated that the price was inclusive …”.

97. Insofar as Mr Mark Gallo’s evidence was concerned, Ms Rees submitted that it suffered from the fact that, as he acknowledged, he “couldn’t really hear that good” what was being said at the auction, that his evidence in cross-examination as to what Mr Parker relayed concerning GST was inconsistent with his affidavit and, further, his affidavit was inconsistent with other witnesses.

98. Fifthly, Ms Rees submitted that Mr George’s complaint that the primary judge failed to draw a Jones v Dunkel inference went nowhere in circumstances where Mr George had not asked his Honour to do so.

99. Sixthly, Ms Rees contested Mr George’s submission that a House v R [49] error was established in circumstances where he did not particularise how the primary judge’s discretion miscarried or what “relevant material” the primary judge failed to consider. She contended that the primary judge appeared to have considered all relevant evidence.

    49. (1936) 55 CLR 499; [1936] HCA 40.

100. Finally, Ms Rees submitted that the primary judge’s finding about what Mr Davidson said was open on the evidence and that SAMM had failed to demonstrate any appellable error in his Honour’s conclusion.

Whether the primary judge erred in finding that the appellant’s witnesses heard the Auctioneer say GST was to be added to the property’s “knockdown price”

101. Ms Rees submitted that the primary judge’s findings that SAMM’s witnesses “must have heard” what Mr Davidson said was unexceptional in circumstances where each said they could “clearly” hear what Mr Davidson was saying. It was also open to his Honour to conclude as a matter of logic, that if Ms Ung and Mr Parker were approximately equidistant from Mr Davidson, it was more probable than not that, like Ms Ung, Mr Parker heard what Mr Davidson said.

Whether the primary judge’s findings about Mr Parker and the Reserve Price Letter were available on the evidence

102. Once again, Ms Rees submitted that the primary judge’s conclusion that Mr Parker had seen, in the sense of read, the Reserve Price Letter was unexceptional in the light of Mr Mario Gallo’s evidence that Mr Parker said to him “the agent has shown me the reserve.” This evidence accorded with Mr Shakir’s evidence about what he heard Mr Parker say when he showed him the letter and with Mr Micallef’s evidence that he could read what the Reserve Price Letter said when Mr Shakir showed it to Mr Parker, all of which evidence was unchallenged.

103. Ms Rees also submitted that Mr George’s submission that Mr Parker would not have been able to read or understand the Reserve Price Letter, if it was shown to him, was improbable, in the light of the fact that Mr Parker had been a real estate agent for 20 years and had previously been a licensed auctioneer. Accordingly, she argued that, having found that Mr Davidson said that bids were exclusive of GST, that this was heard by Mr Parker and Mr Mario Gallo, and that the Reserve Price Letter was shown to Mr Parker, it followed that at the time the winning bid was made, Mr Parker made it knowing that the price offered, and accepted, was exclusive of GST, and that the GST was payable by SAMM.

Whether the Auctioneer’s words about GST and the Reserve Price Letter established a common intention that the sale price was exclusive of GST

104. As to Mr George’s fourth topic, Ms Rees submitted that the correct test binding on this Court and the primary judge was that there must be a positive finding as to the “common subjective intention of the parties”. [50] She argued that the primary judge recognised the conflict in the evidence, resolved it in Shaye’s favour in a manner which was open on the evidence, and SAMM had failed to identify any Fox v Percy [51] error in his Honour’s findings.

     50.    Franklins (at [448]).

     51. (2003) 214 CLR 118; [2003] HCA 22.

The rectification order

105. Ms Rees contended that the fifth issue the appellant raises was largely a restatement of the fourth issue. Nonetheless, she submitted that, although SAMM may well have intended to purchase the property for no more than $3.3 million inclusive of GST, that fact did not preclude a finding that once the auction began, SAMM became aware that bids were exclusive of GST and, by the conclusion of the auction, had bid more than initially planned in order to secure the property.

The award of interest

106. Ms Rees submitted that the primary judge did not err in applying cl 41 which, in its terms, entitled Shaye to interest if the contract was not completed in accordance with the provisions hereof. She submitted that SAMM’s offer to pay the disputed GST amount into a controlled monies account clearly did not amount to completion in accordance with the contract, thus enlivening cl 41. [52] To the extent Mr George’s submissions appear to contend that the primary judge’s award of interest had a discretionary element, Ms Rees submits that the interest claim was contractual and not a matter for judicial discretion.

     52.    Primary judgment (at [9]).

Rectification: principles

107. The case has to be determined against the background, explained in CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd,[53] that:

“[32]    A contract which has been reduced to writing is presumed to record the parties’ agreement and they are bound by it unless one of the equitable doctrines, such as mistake, applies. Where the written words of the document do not reflect the true agreement of the parties due to their common (or, in some limited instances, unilateral) mistake, the equitable remedy of rectification may be available. The effect of rectification is retrospective so that the instrument is taken to operate in its rectified form from its inception. As an equitable remedy, the law relating to when rectification is available continues to develop.” [Footnotes omitted.]

53. [2017] VSCA 11 per Redlich, Tate and Ferguson JJA; see also Mayo v W & K Holdings (NSW) Pty Ltd (in liq) (No 2) [2015] NSWCA 119 (Mayo); Newey v Westpac Banking Corporation [2014] NSWCA 319 (Newey) (at [168]) per Gleeson JA (Basten and Meagher JJA agreeing).

108. The rationale for rectification is that it is unconscientious for a party to a contract to seek to apply the contract inconsistently with what he or she knows to be the common intention of the parties at the time that the written contract was entered. [54]

     54. Franklins (at [444] – [446]); see also Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 (Ryledar) per Campbell JA (at [315]) (Mason P agreeing); Mayo (at [57]) per Gleeson JA (Meagher JA and Sackville AJA agreeing).

109. The essential principles concerning rectification were recently explained in the joint judgment in Simic v New South Wales Land and Housing Corporation, [55] as follows:

“[103]    Rectification is an equitable remedy, the purpose of which is to make a written instrument ‘conform to the true agreement of the parties where the writing by common mistake fails to express that agreement accurately’. For relief by rectification, it must be demonstrated that, at the time of the execution of the written instrument sought to be rectified, there was an ‘agreement’ between the parties in the sense that the parties had a ‘common intention’, and that the written instrument was to conform to that agreement. Critically, it must also be demonstrated that the written instrument does not reflect the ‘agreement’ because of a common mistake. Unless those elements are established, the ‘hypothesis arising from execution of the written instrument, namely, that it is the true agreement of the parties’ cannot be displaced.

[104]    The issue may be approached by asking — what was the actual or true common intention of the parties? There is no requirement for communication of that common intention by express statement, but it must at least be the parties’ actual intentions, viewed objectively from their words or actions, and must be correspondingly held by each party.” [Emphasis added; footnotes omitted.]

55. [2016] HCA 47; (2016) 91 ALJR 108 (Simic) per Gageler, Nettle and Gordon JJ; see also Newey (at [59]).

110. Later in the joint judgment, the plurality appeared to endorse the test the primary judge in that case had applied, namely that “if someone had pointed out at the time to [the contracting parties] that the name of the counterparty was wrong, that would have been plain and obvious to both of them” and that, accordingly, there could be “no doubt that their actions were the result of a common mistake”. [56]

     56.    Simic (at [108]).

111. Kiefel J (as her Honour then was and with whose reasons concerning rectification French CJ agreed) addressed the question of how common intention is proved as follows:

“[41]   It has for some time been settled law that the existence of an antecedent agreement is not essential to the grant of relief by way of rectification and that rectification may be granted in cases where the instrument sought to be rectified is the only agreement between the parties. The focus of the courts turned to the common intention of the parties up to the time the relevant instrument was made. That intention must be proved by admissible evidence and proved to a high standard. In a passage from Fowler v Fowler, which has been cited with approval by this Court, Lord Chelmsford said that:

a person who seeks to rectify a deed upon the ground of mistake must be required to establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently in the minds of all parties down to the time of its execution.

[42]   What is necessary to be shown is the actual intention of each of the parties. This has often been referred to by intermediate appellate courts as the subjective intention of the parties. A court, in determining whether the burden of proof is discharged, may be said to view the evidence of intention objectively, in the sense that it does not merely accept what a party says was in his or her mind, but instead considers and weighs admissible evidence probative of intention. It is in this sense that statements such as that of Hodgson J in Bush v National Australia Bank Ltd, that common continuing intention ‘must be objectively apparent from the words or actions’ of each party, may be understood.

[43]   It is not to be expected that parties to contractual negotiations will express themselves in terms of their intentions. It is therefore to be expected that proof to the necessary standard will usually require some manifestation of the intention of each party by their words or conduct and that the requisite common intention will be a matter of inference for the court from that evidence. As Yeldham J pointed out in Bishopsgate Insurance Australia Ltd v Commonwealth Engineering (NSW) Pty Ltd, it would not be sufficient for proof of intention to refer to a party’s state of mind which remained undisclosed in the course of negotiations.

[44]   Yeldham J also observed that there was some divergence of judicial and academic opinion as to whether more was required for proof of intention and, in particular, whether intention must be evidenced by ‘some outward expression of accord’, as was suggested in Joscelyne v Nissen. Further, in Maralinga Pty Ltd v Major Enterprises Pty Ltd, Mason J referred to what had been said by Buckley LJ in Lovell and Christmas Ltd v Wall, namely that it was necessary for rectification to find that intention ‘was communicated by one side to the other’.

[45]   In Pukallus v Cameron it was not necessary to resolve the question as to what was required to prove intention, but Wilson J was moved to suggest that, notwithstanding the views expressed in Joscelyne v Nissen and Maralinga, it may not be necessary to prove an outward expression of accord. His Honour appears to have preferred the view expressed in an article, that the requirement of an outward expression of accord was not justified by principle or authority. On this view, the absence of an outward expression of accord may go to whether the burden of proof can be discharged, but an outward expression of accord is not itself a requirement of rectification.

131. The rule in Browne v Dunn is an obligation of procedural fairness which counsel has when cross-examining a witness who counsel intends to submit should not be accepted. [81] It is an obligation “to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of [the witness’s] evidence”. [82] It applies both to party witnesses and witnesses generally. [83]

     81. See Browne v Dunn (at 70-71); West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 (at [95]) per Campbell J (as his Honour then was).

     82. Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 (at 16) per Hunt J.

     83. Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 (Bale) (at [66] – [67]) per Allsop P, Giles JA and Tobias AJA.

132. The rule in Browne v Dunn is both “a rule of practice or procedure designed to achieve fairness to witnesses and a fair trial between the parties … [and also] a rule relating to weight or cogency of evidence”. [84] It “facilitates the tribunal’s assessment of the reliability and accuracy of the witness.”[85] Even where, for example, the inference on which a party may intend to rely to impeach a witness is clear from the exchange of witness statements or affidavits or reports, “such notice … does not absolve the party who seeks to impugn the witness’s credibility, from cross-examining as to those issues that the party intends to ultimately submit are of significance [so as to] provid[e] the basis upon which the tribunal of fact can make the necessary assessment of the witness in relation to those issues”. [86] If “matters in controversy are not ‘put’ to the witness in cross-examination the tribunal’s capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded”. [87]

     84. Bulstrode v Trimble [1970] VR 840 (at 846) per Newton J; see also Bale (at [39] – [48]).

     85. Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478; [2009] VSCA 96 (Rees) (at [21]) per Ashley, Redlich JJA and Coghlan AJA.

     86. Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 (at [13]) per Redlich JA and Beach AJA.

     87. Rees (at [21]); Terrence Parsons (a pseudonym) v R [2016] VSCA 17 (at [42]) per Maxwell P, Redlich and Priest JJA.

133. Thus, the parties “cannot by an agreement to which the court has acquiesced, authorise a course which denies elementary procedural fairness to a witness”. [88]

     88. State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 (at [43]) per Leeming JA (Barrett JA and Tobias AJA agreeing).

134. It might be accepted, as Mr George submitted, that the rule in Browne v Dunn is of less importance where pleadings, affidavits or pre-trial preparation, have already made clear that the particular assertion or evidence will be disputed. [89] However, “[e]ven when there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case.” [90]

     89. West v Mead (at [96] – [98]); LM Investment Management Ltd (in liq) v Bruce & Ors [2014] QCA 136 (at [41]) per Fraser JA (Gotterson JA and Daubney J agreeing); Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 (Seymour).

     90.    West v Mead (at [99]); see also Cross on Evidence, LexisNexis (Cross) (at [17445]).

135. One consequence of a failure to comply with the rule in Browne v Dunn on any particular point, is that cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it. [91] It may also “be a very good reason for accepting that witness's evidence, particularly if it is uncontradicted by other evidence” and “can affect the weight of the evidence called against the witness”. [92]

     91.    Cross (at [17460]); see also Bale (at [46]).

     92.    Cross (at [17460]) [footnotes omitted].

136. Further, on appeal the court will be inclined to disregard a submission which was not tested by putting it to the party best able to deal with it. [93]

     93.    Ibid; see also Seymour (at 225) per Glass JA (Reynolds JA agreeing); (at 237) per Mahoney JA.

137. Nevertheless, the fact that “evidence was not cross-examined on … does not necessarily mean that the judge was obliged to accept it … if, for example, it was inconsistent with other evidence that he accepted, or if it was inherently incredible.”[94] It is apparent that the primary judge did not regard Shaye’s witnesses’ evidence as in that category.

     94. Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382 (at [105]) per Campbell JA (Allsop P and Basten JA agreeing); TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 (at [198]) per Leeming JA (Beazley P and Emmett AJA agreeing).

Determination

143. The primary judge recognised the difficulty of reconciling the starkly contrasting evidence of the witnesses on the critical point. Although the evidentiary matrix was not large, it is apparent, in my view, that he had regard to all available evidence in determining whose account should be accepted.

144. His Honour’s statement that the 25 August email was “decisive” was one he was, in my view, entitled to make. First, as his Honour held, the email was written in response to an “open question” from Mr Shakir. [95] Mr Shakir’s call to Mr Davidson which elicited the email merely advised “we've got a possible concern with the GST component on the property” and asked for “an email with your recollection of events”. [96] Contrary to Mr George’s submission, that inquiry did not alert Mr Davidson to his conduct being a matter of concern, another matter I note Mr George did not cross-examine Mr Davidson about.

     95.    Primary judgment (at [78]).

     96.    Ibid (at [35]).

145. Secondly, the weight the primary judge was, and this Court is, entitled to place on the email, was high in circumstances where there had been no cross-examination of Mr Davidson about it. His Honour drew Mr George’s attention to his concern about the lack of cross-examination on this document in the course of addresses when Mr George submitted his Honour should find it was self-serving, a submission he has repeated in this Court. His Honour was also entitled to reject Mr George’s submission, that he should find the 25 August email was a reconstruction having regard to Mr George’s failure to put that to Mr Davidson. Indeed, it would have been a denial of procedural fairness to Mr Davidson if his Honour had accepted that submission in the circumstances. [97]

     97. See Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 (at [69] – [72]) per Heydon, Crennan and Bell JJ.

146. Thirdly, the contents of the email were consistent with other evidence that the primary judge accepted, and was not inherently incredible. Indeed it was consistent with Mr Parker’s evidence to the extent he agreed that it was not uncommon at auctions for the sale of vacant commercial property for bids to be made exclusive of GST with the latter being added to the knockdown price.

147. Moreover, his Honour did not merely have regard to the 25 August email in accepting Mr Davidson’s evidence. He also found its contents were corroborated by Shaye’s witnesses, by the Sales Advice Notice (about which its author, Mr Shakir, had not been cross examined), by the fact Mr Parker saw the Reserve Price Letter, by the small area within which the auction took place and the fact that both Mr Parker and Mr Mario Gallo said they could hear what Mr Davidson was saying.

148. Unlike his Honour, with respect, I would have concluded that the Sales Advice Notice was prepared on the date it bore, particularly, again, when no suggestion to the contrary was put to its author. Mr George was invited to take the Court to any evidence that demonstrated the Sales Advice Notice was not prepared on the date it bore and did not do so.

149. Further, as Ms Rees submitted, Mr George’s submissions challenging the primary judge’s finding are inaccurate in a number of respects. His Honour did not describe the 25 August email as “contemporaneous”, but as “almost contemporaneous”, a fair description of a document created only 6 days after the relevant events.

150. It is also not the case, as Mr George submitted, that Mr Davidson had no recollection of what he said. His evidence was “that, in his email, he was describing what he actually recalled doing at the auction”. [98] But even if it was the case that he relied on his practice at auctions, that would not have deprived his evidence as to what he said about GST of weight. To prove that an act has been done, it is admissible to prove any general course of business or office, whether public or private, according to which it would ordinarily have been done, there being a probability that the general course will be followed in the particular case. [99]

     98.    Primary judgment (at [36]).

     99. Connor v Blacktown District Hospital [1971] 1 NSWLR 713 (at 721) per Asprey JA (Mason JA agreeing); Cross (at [3240]).

151. Any inconsistency between Mr Davidson’s affidavit and his email is of no moment in my view. The words “GST will be in addition to the knockdown price” do not add anything to Mr Davidson’s statement that “your bids today are exclusive of GST”. The difference may have been explained by Mr Davidson had he had been cross-examined about it. One explanation may well be that when he came to prepare his affidavit, Mr Davidson was alert to the necessity to include in a sworn document everything he had said, rather than when he responded to Mr Shakir’s open inquiry.

152. It is by no means apparent that Mr Davidson did not understand the position about GST on the sale of vacant commercial real estate. In any event, he was both relaying what appeared, on his understanding, on the front page of the contract, his instructions as set out in the Reserve Price Letter and the usual practice with such sales. I do not accept that Mr Davidson’s reference to the contract takes the matter anywhere. Insofar as SAMM’s witnesses are concerned, they knew there was an apparent inconsistency in the contract’s treatment of GST which Mr Parker had been charged to resolve.

153. I also do not accept that the primary judge’s finding was not open to him in the light of the differing recollections of the other Shaye witnesses. His Honour was clearly alert to those inconsistencies. He set out each witness’s evidence and was satisfied, correctly in my view, that “in substance, each agrees that the Auctioneer announced that the purchase price, constituted by acceptance of the highest bid, would be exclusive of GST”. [100]

     100. Primary judgment (at [26]).

154. Once the primary judge accepted Mr Davidson’s evidence, the conclusion that Mr Parker and Mr Mario Gallo must have heard what he said was inevitable because each said he could hear what was being said. Mr George’s submission that the fact something was said did not mean it was heard by SAMM’s witnesses fails to grapple with this evidence.

155. Further, in my view, the primary judge’s finding that Mr Parker saw, in the sense of read, the Reserve Price Letter was clearly open to his Honour, both from the facts that as Mr Shakir showed Mr Parker the letter, he heard Mr Parker say to whomever he was speaking to on the telephone “the agent has shown me the reserve,” and Mr Mario Gallo said Mr Parker said words to that effect.

156. Mr George’s submissions that, in the circumstances prevailing at the time, Mr Parker would not have been able to comprehend the significance of the statement in the letter “$3,500,000 + GST” borders on the absurd. Nothing in Mr Parker’s evidence revealed him as a person who would have any difficulty comprehending the simple proposition in the Reserve Price Letter. It would be speculation on the Court’s part to accept this submission.

157. Mr George’s alternative submission that, if Mr Davidson did say GST was to be added to the “knockdown price”, and Mr Parker and Mr Mario Gallo heard it, it was not clear why this information would concern them and they were entitled to rely on the contract also departs from reality. First, it is apparent from their conduct that they were concerned as to the way in which the contract treated GST. Secondly, the contract was a draft. An auction is an invitation to treat. [101] It is only when the hammer falls that there is a concluded deal. [102] Until that time, the bidder “is no more than an offeror”, and can withdraw any bid at any time. [103] Mr Parker, an experienced real estate agent would have been well aware of these matters as, too, I would infer would Mr Mario Gallo and Mr Mark Gallo. Any information communicated during the auction process concerning GST prior to the hammer falling was important to them.

     101. Shoreham Park Pty Ltd v John Foote Bloodstock Pty Ltd & Anor [2002] NSWSC 778 (at [110]) per Einstein J.

     102. Seivewright v Brennan [2005] NSWSC 216; (2005) 12 BPR 22,979 (at [31]) per Young CJ in Eq.

     103. AGC (Advances) Ltd v McWhirter (1977) 1 BPR 9454 (at 9457) per Holland J; app Boulas v Angelopoulos (1991) 5 BPR 11,477 (at 11,486) per Kirby P (Gleeson CJ and Samuels JA agreeing).

158. I would add that, in my view, Mr Parker would have been very interested in seeing what the Reserve Price Letter said. This is because, pursuant to cl 15(1)(c) of the Property Regulation, the “highest bidder is the purchaser, subject to any reserve price”. This was, no doubt, why when Mr Shakir told Mr Parker he had managed to reduce the reserve price, he showed him the letter. In my view, Mr Parker would well have appreciated its significance, including the statement that it was “+ GST”. Further, while the reserve set out in the Reserve Price Letter had been reduced, Mr Shakir said nothing which departed from the other statement in the letter that the price was “+ GST”. Mr Parker would well have appreciated that that statement was a term of any contract entered into should the hammer fall in SAMM’s favour.

159. I do not accept that it was not open to the primary judge to reject SAMM’s witnesses’ evidence. Mr Davidson’s version of the statement had been put clearly to each. In the case of Mr Parker, whose conduct at the auction was as SAMM’s agent, Mr Cleary also put to him a motive for lying: “avoid[ing] having to pay some component of GST on the purchase price”. It was also open to his Honour to reject Mr Messina’s evidence particularly when the latter gave evidence that Mr Davidson may have talked about the property being a taxable supply, but he didn’t hear it, and that, the situation was not one where he was there to buy, in which case, he “would have had my ears glued on it”.

160. Once it was accepted that Mr Parker heard Mr Davidson’s statement about GST, it was inevitable that his Honour would conclude that Mr Parker bid on that basis and contracted on SAMM’s behalf on that basis.

161. Finally, insofar as Mr George complained that his Honour failed to draw a Jones v Dunkel inference where Shaye did not call others present at the auction, it is by no means apparent that he asked his Honour to do so. He did not make that submission in writing or orally.

162. To the extent it might be concluded that his Honour having adverted to the matter during the evidence, Mr George may have been entitled to believe his Honour was seized of the point (a matter about which I express no concluded view), it is worth remembering that Jones v Dunkel enables evidence to be “more readily accepted because it had been left uncontradicted”. [104] However, “if the evidence which has been admitted is enough to prove the case of the party who has not called the witness, the tribunal of fact could be justified in not counting the failure of that party to call that witness as something that reduces the strength of that case.”[105]

     104. Jones v Dunkel (at 308) per Kitto J; see also (at 312) per Menzies J; (at 319) per Windeyer J.

     105. Manly Council v Byrne [2004] NSWCA 123 (at [55]; [74]) per Campbell J (Beazley JA and Pearlman AJA agreeing).

163. Put another way, there is an exception to the rule in Jones v Dunkel to the effect that the “rule does not operate to require a party to give merely cumulative evidence”, so that “if five people attended a relevant meeting and some are called, no Jones v Dunkel inference can normally arise in respect of those who are not: the rule does not compel time to be wasted by calling unnecessary witnesses.”[106]

     106. Ibid (at [61]); citing Cross (at [1215]).

164. In my view, Mr George has not identified any matter of a relevant Fox v Percy nature, which establishes that the primary judge erred in concluding the parties had a common intention at the time they executed the contract that the purchase price would be on a plus GST basis, with the GST to be borne by the purchaser.

165. Once the primary judge reached this conclusion, his Honour was, in my view, entitled also to be satisfied that the evidence was “of such a preponderance” as to satisfy his mind that the contract was mistaken in its treatment of GST, and that that treatment did not reflect the common intention the parties held when the contact was executed.

166. As to the three matters Mr George advanced to contend the evidence did not meet the necessary threshold, [107] this would not be the first auction when a purchaser’s original intention changed prior to the final bid, the second begs the question as by the time his Honour was considering whether to make a rectification order he has held the contract did not reflect the parties’ common intention and the number of times Mr Davidson stated the price was “+ GST” was irrelevant, as long as he said it once.

     107.    See (at [88]) above.

167. Finally, insofar as Mr George seeks to rely upon a matter not relied upon below going to a discretion to refuse a rectification order, it is sufficient to say that, assuming such a discretion is available in circumstances other than laches (being the matters dealt with in the authorities to which he referred), nothing in the fact that SAMM has had to pay interest on the purchase price would warrant refusing rectification. SAMM’s liability to pay interest flows not from the fact of rectification, but from the fact of it being compelled to observe the obligation it has been found to have assumed when it executed the contract. [108]

     108.    Cf Issa v Berisha (at 266); see also costs judgment (at [11]).

168. The rationale of making a rectification order is “that it is unconscientious for a party to a contract to seek to apply the contract inconsistently with what he or she knows to be the common intention of the parties at the time that the written contract was entered.” [109] It cannot offend equity’s conscience in such circumstances for SAMM, having been found to be the party which has acted unconscientiously, to be obliged to pay the purchase price it agreed to pay, and interest being the price of the passage of time before it complied with its contractual obligation as found.

     109.    Franklins (at [444]).

169. In my view the primary judge did not err in making the rectification order.

Interest

170. It cannot be doubted that an order of the Court for rectification, once made, relates back so that the rights of the parties are treated as having always been in accordance with the contract as so rectified. [110] Further, as Shaye’s entitlement to interest was pursuant to cl 41 of the contract as rectified, statutory provisions conferring a discretion as to the rate of interest or the period for which interest was payable did not apply. [111]

     110.    Ibid (at [644]).

     111. Civil Procedure Act 2005 (NSW), s 100(3)(b).

171. The appeal from the costs judgment should be dismissed.

Orders

172. I propose the following orders:

1. Appeal dismissed.

2. Order that the amount of $332,550 paid into Court on 27 May 2016 (representing the GST component of the purchase price for the property the subject of these proceedings), including any accrued interest on that amount, be paid out of Court (net of any expenses payable in the ordinary course) to Newhouse & Arnold Solicitors Law Practice Trust Account as the solicitors on the record for the respondent.

3. Order that the amount of $216,215.85 paid into Court on 27 May 2016 (representing the amount of interest payable to date under cl 41 of the contract for sale of the property the subject of these proceedings), including any accrued interest on that amount, be paid out of Court (net of any expenses payable in the ordinary course) to Newhouse & Arnold Solicitors Law Practice Trust Account as the solicitors on the record for the respondent.

4. Appellant to pay the respondent's costs of the appeal.

5. Respondent to provide a tax invoice to the appellant pursuant to cl 13.10 of the contract for sale dated 19 August 2015 within 14 days.

173. GLEESON JA: I agree with McColl JA. I also agree with the additional observations of Sackville AJA concerning the challenge to the finding that Mr Parker, the agent for the appellant, understood when making the final bid that the Auctioneer had stated that the sale price was to be exclusive of GST.

174. SACKVILLE AJA: I have had the advantage of reading McColl JA’s comprehensive reasons for judgment. I agree with the orders her Honour proposes and generally with her Honour’s reasons for rejecting the challenge to the primary Judge’s findings.

175. The appellant did not contend that the primary Judge erred in stating the principles governing a claim for rectification of an agreement. The challenge was to the findings that the Auctioneer stated at the auction that the sale price was to be exclusive of GST and that Mr Parker, the agent of the appellant, understood when making the final bid that that was the case.

176. I consider that the primary Judge’s reasons for making these findings are compelling and disclose no error of the kind that would justify the Court’s intervention. His Honour was entitled to attribute considerable significance to the Auctioneer’s email of 25 August 2015. Once his Honour found, as was clearly open, that Mr Shakir showed Mr Parker the Reserve Price Letter, the findings were virtually inevitable. It is inconceivable that Mr Parker, who was specifically instructed to ascertain whether the sale was inclusive or exclusive of GST, did not notice the reference to “+ GST” in the Reserve Price Letter.

177. I agree with McColl JA on the question of interest.

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Endnotes

Decision last updated: 09 June 2017