Schierholter & Anor v Rosier Real Estate Pty Ltd

[2005] VSCA 324

Revised

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.  6700 of 2001

SCHIERHOLTER AND ANOR.
	Appellants
v.
ROSIER REAL ESTATE PTY LTD	Respondent

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JUDGES:	CHERNOV, NETTLE and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 December 2005
DATE OF JUDGMENT:	8 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 324

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Contract law – Contract of sale of land – Sale subject to and conditional upon purchaser obtaining town planning permit by a stipulated date – Permit not obtained – Contract terminated by vendor – Allegation by purchasers that agent of vendor had represented that any necessary extension of time to obtain permit would be granted – Claims raised alleging misleading or deceptive conduct – Claims dismissed at trial – Whether judge had failed to consider all relevant evidence – Whether finding that alleged representations had not been made was against evidence or weight of evidence – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J.M. Selimi	Francis Lim
For the Respondent	Mr J.F. Styring	Phillips Fox

CHERNOV, J.A.:

1. I will ask Ashley, J.A. to deliver the first judgment.

ASHLEY, J.A.:

1. Before the Court is an appeal from a judgment entered on 18 August 2004 in favour of the respondent after a trial in the Trial Division of this Court;  and an application for leave to appeal from a costs order made consequential upon that judgment.

1. The unsuccessful appellants had raised a claim arising out of the failed purchase of a property in Bayswater North, they being respectively the named purchaser and the intended nominee, and the respondent being the agent for the vendor.  The contract note had provided that the sale was subject to and conditional upon the purchaser obtaining a town planning permit for 29 units on or before 31 July 2000.  It was common ground that no such permit had been obtained by that date.  The contract had effectively been brought to an end when, in September 2000, the vendor, relying upon that condition, terminated the contract and resold the property. 

1. The appellants' claim, in short, was that an employee of the respondent had on several occasions orally represented to the first appellant that if a permit was not obtained by 31 July an extension of time would be granted by the vendor, and that the agent would arrange such an extension.  The respondent's employee denied making such representations. 

1. The trial out of which this appeal arises was limited to determination of the liability issue.  In that connection the competing evidence of the first appellant, Mr Peter Schierholter, and the employee of the respondent, Mr Tony Smith, was central;  but it was by no means the only evidence bearing upon the probabilities that the version of what was said by one man or the other was likely correct. 

1. Osborn, J. was not satisfied that the alleged representations had been made. 

The appellants' notice of appeal contends that there were more than 60 errors on his Honour's part. In argument, however, two general propositions were advanced: first, that his Honour failed to have regard to the whole of the direct and circumstantial evidence in determining whether the respondent had, on the balance of probabilities, engaged in conduct contravening s.52 of the Trade Practices Act 1974 (Cth); second, that the failure of the judge to find that the alleged representations had been made was against the totality of direct and circumstantial evidence or the weight of evidence.

1. Recognising that issues of credibility arose and had been resolved unfavourably to Mr Schierholter, counsel submitted that a consideration of all the evidence showed that the trial judge had misused his advantage, in which circumstances this Court was authorised to intervene.  Reliance was particularly placed on what was said to be evidence of "confirmation and corroboration" afforded to the appellants' case by the testimony of two witnesses, Messrs. Peers and Pye.

1. In my respectful opinion, notwithstanding everything urged for the appellants, Osborn, J.'s resolution of the disputed issues was correct, essentially for the reasons which his Honour gave.[1]  His Honour did not fail to examine all the relevant evidence.  His path of reasoning is crystal clear and, I should say, was dictated on an objective assessment of the evidence.  I would only add two matters.  First, underlying one aspect of what his Honour said about the evidence of Messrs Peers and Pye[2], the evidence of those men as to what Mr Schierholter told them that the agent had said, putting that evidence at its very best for the appellants, depended at least upon Mr Schierholter's perception of what Mr Smith had said to him, which need not necessarily, or even probably, have accorded with the fact.  That was particularly so where the two versions of what had been said, particularly in March 2000, were not far apart in words, although they were distinctly apart in meaning.  Second, in so far as there was anything to the attack made by appellants' counsel on his Honour's failure to be satisfied that four months was a totally unreasonable period to stipulate for the obtaining of a permit, the attack could lead nowhere.  That was said for a number of reasons, one of which was that it  was not at all improbable that an experienced developer such as the first appellant would knowingly incur the risk of losing a deposit of only $2,000, and preliminary expenditure of less than $40,000, in the prospect of turning a very large profit. 

   [1][2004] VSC 242.

   [2]The relevance of which could only have borne upon Mr Schierholter's creditworthiness.

1. That takes me to the application for leave to appeal against the costs order made in the respondent's favour.  The applicants seek to attack that part of the order by which Osborn, J. exercised his discretion to make an order for indemnity costs.  His Honour so ordered having regard to two Calderbank letters.  The applicants, as I perceive it, really wish to re-agitate matters weighing in the exercise of the discretion.  They seek to do so under cover of the submission that his Honour's decision was so wrong that it must have been infected by error of principle.  In my opinion, that submission is without foundation.  I would refuse the application.

CHERNOV, J.A.: 

1. I consider that the appeal should be dismissed and the application for leave to appeal against his Honour's costs order be refused for the reasons given by Ashley, J.A.

NETTLE, J.A.:

1. I agree, with respect, with the reasons for judgment of my brother Ashley.  I would only add that in my view it is inherently improbable that a property developer with more than 40 years' experience and 150 developments, as it is said, under his belt would be persuaded by the oral representation of an estate agent that the terms of a contract for the sale of land might not be strictly enforced.  That is not to say that it could not happen, and that sometimes it may happen, but the circumstances would have to be exceptional indeed, and here they were banal.  It is in my opinion not at all surprising that the trial judge was not persuaded that there had been misleading and deceptive conduct of the kind alleged, or that his Honour reached the view that the refusal of the Calderbank offer which was made was unreasonable.

CHERNOV, J.A.: 

1. The orders of the Court are:

1.The appeal brought by notice of appeal dated 1 September 2004 is dismissed.

2.The ore tenus application for leave to appeal against the order of Osborn, J. of 18 August 2004 relating to costs is refused.

3.The appellant pay the respondent's costs of and incidental to this appeal.

(Discussion ensued.)

CHERNOV, J.A.: 

1. At the conclusion of the Court's pronouncement of its decision that the appeal be dismissed and that leave to appeal against the costs order be refused, counsel for the respondent handed to the Court the written offer of compromise that was served on the appellants on 6 September 2004.  In essence, the offer was to the effect that there would be a consent order setting aside the costs order made below and that the first appellant pay the costs of the respondent below on a party-party basis, and that the second appellant pay the costs of the respondent of and incidental to the proceeding, including reserved costs, from 16 December 2002.  This offer was not accepted and accordingly Mr Styring sought an order that the appellant pay the respondent's costs taxed on a solicitor-client basis in accordance with Rule 26.12(4). 

1. Mr Selimi for the appellants opposed this application on the basis that, in substance, the appeal was brought for the purpose of setting aside his Honour's findings in relation to the appellants' claim below. 

1. The Court considers that, for the reasons outlined by Ashley, J.A., there was no reasonable basis for contending that his Honour erred and that the appeal was effectively doomed to fail.  In the circumstances, the offer of compromise, in the opinion of the Court, was a reasonable one and justifying the order that is now sought.  Consequently, I will withdraw what I have said in respect of costs and paragraph 3 of the order of the Court will read as follows:

3.The appellants pay the respondent's costs of and incidental to this appeal prior to 6 September 2004 on a party-party basis and thereafter on a solicitor-client basis.