Schierholter v Rosier Real Estate Pty Ltd
[2004] VSC 242
•2 July 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6700 of 2001
| SCHIERHOLTER AND ANOTHER | Plaintiff |
| v | |
| ROSIER REAL ESTATE PTY LTD | Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7–10, 15–18, 22 JUNE 2004 | |
DATE OF JUDGMENT: | 2 JULY 2004 | |
CASE MAY BE CITED AS: | SCHIERHOLTER & ANOR v ROSIER REAL ESTATE PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 242 | 1st Revision – 19 September 2005 |
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Alleged misleading and deceptive conduct in contravention of s.52 of the Trade Practices Act and s.9 of the Fair Trading Act - Representations - Reliance upon collateral promises.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J Selimi | Francis Lim, Barristers & Solicitors |
| For the Defendant | Mr J Styring | Phillips Fox |
HIS HONOUR:
The plaintiffs in this matter seek damages pursuant to s.82 of the Trade Practices Act 1974 and s.159 of the Fair Trading Act 1999 by way of compensation for alleged misleading and deceptive conduct (or conduct which was likely to mislead or deceive) in contravention of s.52 of the Trade Practices Act and s.9 of the Fair Trading Act.
The claim arises out of a contract for the purchase of a property at Bayswater entered into on 26 March 2000 between the first plaintiff as purchaser and one Veenman as vendor.
The defendant is a real estate agent and acted as agent for the vendor with respect to this transaction.
By a contract note which the first plaintiff executed on 27 March 2000 the vendor agreed to sell the Bayswater property to the firstnamed plaintiff "and/or nominee" for $745,000 payable by way of a deposit of $74,000 within 14 days of receiving a planning permit (of which $2,000 was declared to have been paid) and the balance of $671,000 within six months of receiving a planning permit. The reference to a planning permit was further explicated by special conditions which provided:
"(1)This sale is subject to and conditional upon the purchaser obtaining a town planning permit for 29 units on or before 31 July 2000.
(2)The purchaser shall pay all fees and costs associated with this permit.
(3)On the signature hereof the vendor agrees to sign any consent or authorities require(d) by the purchaser to enable the issue of the town planning permit.
(4)If the City of Maroondah does not give consent to this application then the parties agree that this contract shall be voidable at the option of the purchaser and vendor, all deposits paid shall be refunded."
It can be seen that the preliminary deposit of $2,000 was refundable and was paid in contemplation of an application for a town planning permit for 29 units upon the subject land. Insofar as the phrase "29 units" may be thought to be ambiguous, it is apparent from extrinsic evidence that the parties contemplated 29 residential dwelling units. The contract contemplated the obtaining of a permit for a development of this character within some four months.
The plaintiffs claim that prior to the making of the contract an employee of the defendant ("the agent") represented to the firstnamed plaintiff that should it become necessary the defendant would arrange an extension of time with the vendor within which the firstnamed plaintiff could obtain a town planning permit with respect to the proposed development of the property (i.e. for 29 units) and that should it become necessary the vendor would grant the firstnamed plaintiff an extension of time within which to obtain a town planning permit with respect to the proposed development of the property. Further, it is said that in making these representations the agent impliedly represented to the firstnamed plaintiff that the vendor would not purport to avoid or rescind the contract by reason of any failure to procure a town planning permit by 31 July 2000.
It is the plaintiff's case as presented in evidence that not only were these representations made at the time of the signing of the contract note on 27 March 2000, they had been made in substantially the same terms on 22 March 2000 at the time of the signing of a prior contract note by the first plaintiff (comprising an offer to purchase which was rejected).
Although the plaintiffs' claim is not pleaded in contract it can be seen that the essential character of the alleged representations relied on was one of collateral promises. I shall refer to them hereafter as the “collateral promises” (although their consequences if proved fall to be determined strictly by reference to the Trade Practices Act 1974 and the Fair Trading Act 1999).
It is further alleged that the firstnamed plaintiff entered into the contract and refrained from endeavouring to further negotiate the terms of the contract in reliance upon the collateral promises. It is also alleged that in or about early July that is prior to the date stipulated in the special conditions under the contract, the firstnamed plaintiff informed the agent that there was likely to be delay in lodging the application for a town planning permit with respect to the development of the property and the agent then replied that the first plaintiff need not worry about it and should just "push on" ("the July representation"). It is alleged that both in reliance upon the collateral promises and the July representation the first and second plaintiffs have incurred various expenses with respect to the preparation of an application for a planning permit. It is also alleged that they refrained from taking such steps as may otherwise have been necessary to procure an appropriate permit on or before 31 July 2000; although this last claim was neither supported by evidence or pursued in final submission. Indeed, it is fundamentally inconsistent with the plaintiff's case on the facts.
Thereafter no application was in fact made for a planning permit by the first plaintiff and on or about 14 September 2000 the vendor avoided the contract.
In the event, the plaintiffs now claim:
(a)the refund of a deposit of $2,000;
(b)expenses allegedly incurred with respect to preparing an application for planning permit in the sum of $37,795;
(c)the alleged value of the commercial opportunity of making a profit on the proposed development in the sum of $1,160,733; and
(d)alternatively the value of the alleged lost chance to further negotiate the contract with the vendor which chance was lost as a result of reliance upon the collateral promises.
Although the defendant takes issue with the plaintiffs' claim at a number of levels the dispute between the parties gives rise to two core threshold factual disputes:
(a) were the collateral promises made? and
(b) was the July representation made?
In assessing these questions it is pertinent to repeat the observations of McLelland CJ in Equity in Watson v Foxman[1]:
" Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712.
[1](1995) 49 NSWLR 315 at 318
I am not satisfied that the collateral promises or the July representation alleged by the plaintiffs were made. I have formed this view having regard to the evidence as a whole including both general contextual factors, specific aspects of the first plaintiff's evidence, and my impression of his credibility as a whole. In so doing I have also considered whether his evidence is materially confirmed by other witnesses and whether the agent’s evidence can be said to materially complement the plaintiff’s case by demonstrating false denials, post representation conduct or other circumstances which should be taken into account as confirming or tending to confirm the truth of the first plaintiff’s evidence.
There are a series of contextual factors which I regard as problematic for the plaintiff’s case in terms of the framework in which the plaintiffs' allegations are to be assessed.
(a)Firstly, the representations comprised in the collateral promises and the July representation are not confirmed in writing or otherwise by any contemporary record.[2] They are alleged to have been made in the course of a commercial transaction to a man experienced both in building development and litigation, who might be expected to know the significance of properly evidencing important arrangements. The collateral promises are not only not recorded in successive contract notes which embodied offers made by the first plaintiff, they are also not recorded in the agent's receipt for $2,000 which summarises the deal into which the parties entered. They are not recorded in correspondence from the plaintiffs' solicitors which commenced immediately after the contract. They do not form the subject of any written demand until July 2001.
[2]cf Watson v Foxman at 319
(b)Secondly, the contractual arrangement into which the first plaintiff entered did not impose upon him any manifestly disproportionate detriment in the absence of the collateral promises. He was required to put up a preliminary deposit of $2,000 which was refundable in the event that the relevant permit was not obtained. It cannot be said that such an arrangement which offered the potential for very substantial benefit to the plaintiff and involved minimal disbenefit was such as to make it inherently likely that the firstnamed plaintiff would not have entered it but for some collateral arrangement of the type alleged. The fact that the first plaintiff must have anticipated that it would be necessary to spend at least some $10,000 to $20,000 in order to make a planning application was not a disproportionate outlay in terms of risk given the very substantial benefit which the first plaintiff believed planning approval would unlock. Indeed if the first plaintiff so chose he could elect not to pursue the planning application within the relevant time frame and risk forfeiting no more than $2,000 plus such expenses (if any) incurred up to the point of that decision.
(c)Thirdly, again as the first plaintiff himself stated and his counsel emphasised the purchase of the land presented itself as a "golden opportunity". It might be thought to have been so golden that some doubt as to the ability of the purchaser to meet the time frame of the relevant special condition was entirely acceptable.
(d)Fourthly, there is nothing inherently improbable in the agent's version of what was said prior to the contract. This is that the agent indicated a willingness to seek an extension of time for the planning permit if that became necessary depending on how the planning application was ‘travelling’, but he gave no assurance that such an extension could or would be obtained.
(e)Fifthly, there is an obvious motive for overstating the extent and nature of collateral promises made by the agent. As a result of such promises the plaintiffs now claim to be entitled to claim opportunity losses in excess of $1,000,000 pursuant to a contract on which the first plaintiff advanced $2,000 and incurred preliminary expenses of only $36,000.
(f) Sixthly, the first plaintiff is, as his own counsel conceded, a "brash" man.
(g)Seventhly, as Mr Peers, the first plaintiff's solicitor, stated the first plaintiff is a man who typically would get the deal done without legal advice and then arrive at his solicitor's office to have the conveyancing effected.
(h)Eighthly, the agent was at the relevant time a very experienced salesman who in my view is unlikely to have said something which he did or could not reasonably expect to give effect to.
(i)Ninthly, in evidence the plaintiff asserted that he sought and obtained assurances that he would have 12 months in which to apply for a planning permit and six months thereafter in which to obtain it. It is to be observed that the 18 months put forward is so at odds with the terms of the contract that it can be seen the terms in which the agent is now alleged to have expressed himself constitute a very substantial departure from such contract.
(j)Tenthly, the agent gave a logical and essentially coherent account of the sequence of dealings that the agent had with the first plaintiff.
·10 March 2000 first telephone conversation with the first plaintiff;
·11 or 12 March 2000 first meeting with the first plaintiff at the property;
·Shortly prior to 22 March 2000 second telephone discussion with the first plaintiff comprising negotiations noted on a white card;
·22 March 2000 second meeting with the first plaintiff at the agent believes his office for the signing of the 22 March 2000 contract note;
·26 March 2000 third meeting with the first plaintiff at his home for the signing of the second contract note;
·28 March 2000 collection of $2,000 cheque from the firstnamed plaintiff's home;
·Mid July 2000 third telephone discussion with the first plaintiff;
·End of July 2000 telephone discussion with Bianca Schierholter, the first plaintiff’s daughter;
·Mid September 2000 fourth telephone conversation with the first plaintiff when the first plaintiff returned "out of the blue"; and
·Mid September 2000 fifth telephone conversation with the first plaintiff in which the agent informed him of the vendor's position.
This account was in part confirmed and supported by record cards relating to the first and second telephone conversations, the terms of the letter written by the first plaintiff's solicitor on 3 October 2000 and the account of relevant events contained in a letter written by the agent to the vendor's solicitor on 24 November 2000 (although it is clear that this last letter was written only after dispute had broken out and it might therefore be fairly characterised as self-serving).
Conversely there are a series of contextual matters which have been identified by Mr Selimi that tend to support the plaintiff’s case. It is to be observed however that the majority of these matters establish an occasion for discussion about the possibility of extension of the contract. They are either not probative at all or not materially probative of the content of such conversation. Given that the agent agrees that there was such a conversation at the time of the signing of the second contract note, they do not materially help to resolve the critical issue which is whether the agent went beyond words of comfort to positive assurances in the terms asserted by the first plaintiff.
In my view the most significant contextual matters among those identified on behalf of the plaintiffs by Mr Selimi (either in cross-examination or submission) are as follows:
(a)First the agent acknowledges that there was no discussion of 31 July as the cut off date for the relevant special condition prior to the presentation of the first contract note to the first plaintiff by the agent.
(b)Second, it is submitted on behalf of the plaintiffs that four months was not a reasonably adequate time for the obtaining of the relevant permit. In my view it is the contemporaneous belief of the parties as to the adequacy of time rather than the fact itself which is contextually significant. Insofar as the underlying fact may itself be regarded as demonstrating a particular belief is to be regarded as more probable than not, I am not satisfied four months was a totally unreasonable period to stipulate for the obtaining of a permit for a development of council’s preferred density. On the other hand there is no doubt the time period was tight. I base these conclusions on the evidence of Mr McDill, Mr Thompson and the agent. Mr McDill’s evidence was that a permit application which corresponded with council’s expectations as to density might be expected to be prepared and lodged within two to three months and could be expected to be resolved within 60 days thereafter. Mr Thompson's evidence was that an application of this type could be lodged within six weeks and he would not rule out a total of four months as its time for determination, although in re-examination he said four months would be the time for Council’s initial response only. The agent’s evidence was that four months accorded with his broad experience of what would be regarded as a reasonable condition in contracts of the type in issue. The evidence of opinion is to be accepted as against evidence of the actual time taken to attempt to lodge a 34 unit application because it is apparent that that application was not prosecuted with reasonable expedition and in particular was delayed by the failure of the first plaintiff to communicate to the consultants any urgency in the application, the sacking of the first planning consultant retained by the first plaintiff, and the first plaintiff’s absence overseas for some months commencing in mid July. The evidence of the town planners Mr McDill and Mr Thompson is also in my view to be preferred to that of Mr Pye the architectural draftsman.
(c)Thirdly, the possibility of going to the appeals tribunal was mentioned in discussion between the first plaintiff and the agent prior to the signing of the contract. I accept that this tends to confirm that the first plaintiff was genuinely concerned that four months might not prove adequate and is likely to have expressed that concern.
(d)Fourthly, the agent was seeking to broker a deal between a vendor who initially did not want a conditional contract and a purchaser who viewed the requirement of a planning permit as critical. Again I accept that this tends to support the view that it is likely the agent responded to expressions of concern by the purchaser as to the adequacy of the time frame provided in the special condition contained in the contract note.
(e)Fifthly, the agent wanted to secure the purchaser's business with respect to the resale of the property after it was developed. He thus had a reason to establish a relationship of trust with the purchaser (although whether this factor tends to support the probability of the plaintiffs or defendant’s case might be debated).
(f)Sixthly, if it is accepted that the agent honestly believed that a permit could be obtained in four months (as I do) this on one view renders it more likely that assurances may have been given as to the possibility of an extension. It can be seen however that this factor begs the question of what assurances were in fact given.
(g)Seventhly, the agent agreed in cross-examination that at the time of signing the second contract note he did believe he could persuade the vendor to grant an extension of the contract should it become necessary.
(h)Eighthly, the agent does have a continuing financial interest in protecting his own professional reputation and his employer from financial liability. I accept that in this sense he is not to be regarded as an independent witness.
I turn then to the firstnamed plaintiff's evidence. I do not accept that evidence is more probably correct than not. The chief aspects in which it was unsatisfactory can be summarised as follows.
(a)It was in large part argumentative and often expressed by way of indirect rather than direct responses to questions. It involved belligerent outbursts and sequential shifts in the first plaintiff’s account of the facts in order to justify his position. These shifts involved inconsistent answers which were in a number of instances explicable in my view only by conscious, deliberate and repeated efforts at self justification.
(b)It was materially exaggerated as to a series of issues including the following:
·It was asserted that the initial advice from the planning consultant McDill was that a 34 lot development was feasible. It is apparent from Mr McDill's evidence and from the documentation tendered that this was not his initial advice and indeed I am satisfied he did not at any stage give advice that a 34 lot development was feasible as distinct from a possibility to be explored.
·It was asserted by the first plaintiff in evidence that the agent twice in similar language advised the first plaintiff to push on. The first occasion was said to be one on which the agent rang to advise the first plaintiff that the vendor was concerned with respect to persons walking over the property. The sequence of conversations alleged in evidence is confused and improbable. The alleged repetition is a form of exaggeration seen in a number of aspects of the first plaintiff’s evidence.
·The first plaintiff's evidence that on returning from overseas he said to the agent in a telephone conversation "You liar you thief", was not put to the agent in cross-examination. The agent's evidence was that the first plaintiff was not aggressive or angry in this conversation. In my view the plaintiff's evidence was again an exaggeration.
·The plaintiff's evidence that he was at the time of this phone call a few days from lodging a permit application was an exaggeration.
·The first plaintiff squarely denied that he said to his solicitor on 19 September 2000 "I've fucked up". I accept the solicitor's note and evidence of this statement. The manner of the first plaintiff's denial was exaggerated emphasising his own asserted truthfulness in circumstances where his answer was false.
·The first plaintiff asserted that he instructed his solicitor Mr Peers with respect to the content of the letter of 3 October 2000 in the following terms, "How the hell can the vendor pull out the contract (sic) if the agent has promised me an extension." (Tp.269) I accept the evidence of Mr Peers that the plaintiff did not use this "aggressive" language when he gave instructions to Mr Peers.
(c)Turning from issues of exaggeration it is to be observed that the first plaintiff's evidence was inconsistent in a number of respects with the particularisation of the representations contained in the amended statement of claim. These were carefully identified by Mr Styring in final submission and I shall not detail them. They include a series of inconsistencies as to both the circumstances and terms of the critical conversations. Mr Selimi submitted that the "gist" of the alleged representations was clear, but as McLelland CJ in Equity observed in the passage from Watson v Foxman which I have quoted above:
"Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances."
(d)The first plaintiff said in evidence that in a telephone conversation prior to the first contract note he told the agent that he wanted a planning permit for a minimum of 29 units within 12 months and settlement after six months. Further, the agent said "Yes not a problem I will fix that for you." In turn, the first plaintiff said in evidence that when the agent produced the first contract note the first plaintiff said "This is not what we discussed" and the agent said "Don't worry about (it), if you need an extension I will get it from the vendor no problem at all. Don't worry about it, just sign here." These conversations present a complex framework for what is now said to be misleading and deceptive conduct at the time of the second contract note. They are not pleaded and have the ring of recent invention by way of elaboration of the first plaintiff's story. Likewise, the account given in evidence by the first plaintiff of complaining to the agent on the occasion of the second contract note "They're the same conditions as you put on the previous contract" is not pleaded and has the same flavour.
(e)The first plaintiff's account of the conversations in which the collateral promises are said to have been made was less than convincing with respect to dates and circumstances. Conversely, the agent's account was more convincingly circumstantial and based in part upon contemporaneous notes.
(f)I do not accept the firstnamed plaintiff's evidence that he did not give his solicitor instructions with respect to matters set out in his solicitor's letters of 3 October 2000, 3 November 2000 and 15 November 2000. I am satisfied that the circumstantial matters set out as to the first plaintiff's instructions do on the balance on the probabilities reflect his instructions at the time and are directly inconsistent with his evidence to me in a number of respects. Conversely the letter of 3 October 2000 is consistent with material elements of the agent's evidence and in particular the general nature of the July telephone conversation.
(g)The evidence of attempted encouragement by the first plaintiff of the witness Pye and the conduct of the first plaintiff in speaking to Pye concerning his evidence during the currency of an order for witnesses out of court tends to support the view the plaintiffs have attempted to manufacture a case.
(h)The plaintiffs have claimed for expenses which were not paid to McDill but which the first plaintiff asserted had been paid. Further, the evidence of Mr Raven was that he only recovered his fees with great difficulty and was paid no conduct money to come to Court when served with a subpoena by the first plaintiff. These matters, although relatively minor in themselves, do not convey a character of commercial honesty.
There is another significant aspect of the evidence as to the making of the collateral promises which is illuminated by the evidence on the question of reliance. It is alleged by paragraph 13 of the further amended statement of claim:
"Further, acting in reliance upon the first and/or second express and implied representations respectively and induced thereby:-
…
(c)the first and/or secondnamed plaintiffs have incurred various expenses of and incidental to the preparation and application for a town planning permit with respect to the proposed development of the property in the total sum of $37,795 …"
The evidence established the plaintiffs made no application for a 29 unit development subsequent to the contract. The plaintiffs caused a 34 unit development proposal to be substantially prepared despite the initial advice of the planning consultant first retained by them that it had little chance of success and despite the advice of Council officers that such a proposal would not be acceptable to the Council as responsible authority. In any event, however, no planning application was finalised or lodged prior to the termination of the contract in September 2000.
In my view whatever precisely may have been said by the agent with respect to the possibility of extensions of time for the contract, it is clear such discussion as he had with the first plaintiff was conducted expressly by reference to the 29 unit proposal contemplated by the contract note. I am satisfied that nothing said by the agent can have conveyed to the first plaintiff any expectation that the contract would be extended if a 29 unit proposal was not pursued and no application for such a proposal were lodged let alone formulated within the four month period stipulated under the special conditions.
This aspect of the matter is also significant with respect to the claim based on the July representation. If a representation of the kind alleged was made I am positively satisfied it was not made with respect to a 34 unit application. Moreover, and in any event, I am not satisfied such a representation was made in the terms alleged by the plaintiffs in the statement of claim or asserted in evidence by the first plaintiff.
It is of some significance in this regard that the instructions referred to in the plaintiffs' solicitor's letter of 3 October 2000 do not refer to the July representation as a basis on which the first plaintiff "rightfully presumed that an extension of time had been granted to obtain the town planning permit." The letter does not support the view that the agent said "push on" in the manner alleged by the first plaintiff.
It was in the context of instructions in the period leading up to 3 October 2000 that the first plaintiff stated to his solicitor (as noted by the solicitor but expressly denied by the first plaintiff) on 19 September 2000 "I've fucked up". At that date no application for permit had been made and the first plaintiff understood and advised his solicitor that although a plan had been drawn up for a 34 unit proposal "you might only get a permit for a 28 or 29 unit development". In my view the plaintiff's statements to his solicitor accurately reflected the fact that he had neither applied for nor made reasonable efforts to apply for a permit for a 29 unit development as contemplated by the contract and he had obtained no agreement to an extension of time under that contract. Moreover, there was even at that date still no application for permit actually on foot.
The plaintiffs' solicitor's letter of 3 October 2000 reflects instructions from the first plaintiff (again denied by him) that he told the agent around 16 July that he had just about reached the stage of lodging the town planning application. I accept the agent's evidence that the first plaintiff did advise him to this effect. This advice was untruthful and the first plaintiff's evidence to the Court as to his instructions to his solicitor was untruthful.
Further, insofar as the first plaintiff seeks to rely upon statements made to his solicitor and to Mr Pye shortly after the making of the contract to the effect that the agent had assured him an extension would be granted, I do not regard such evidence as conclusive or indeed significantly probative of the fact of the matter. The evidence is of self-serving statements from a man prone to exaggeration. It is based on best recollection supported by no notes. Further, the terms of the first plaintiffs' statements as to what gave him "an impression" (to adopt words used by Mr Peers) that the agent had assured him an extension would be granted, are far from certain. Indeed in the case of Mr Peers it was conceded that the first plaintiff may have done no more than say that the agent had said he would do his best to sort out an extension. Such words are entirely consistent with the defendant's case. Mr Pye's evidence was more certain as to the content of the self-serving statement by the first plaintiff, but its probative weight as to the ultimate fact in issue is again dubious. This is so firstly, because of the relative sensitivity of the significance of the statement to a slight or "subtle" change in words and secondly, because ultimately the significance of any such statement must depend on the view I take of the first plaintiff and in particular as to whether he is a truthful person who might be expected to have made a reliable statement to Mr Pye. I am not persuaded on the whole of the first plaintiff's evidence that he is generally truthful and reliable (indeed both the evidence of Mr Pye and Mr Peers contradicts the first plaintiff's evidence as to a series of incidental matters such as the question of whether the first plaintiff showed Mr Pye the contract note). Moreover, I am positively satisfied that he is prone to exaggeration in describing his own actions and dealings in which he has been involved. The first plaintiff may simply have said what he did to appease Mr Pye. In summary I do not accept that the evidence of Mr Peers or Mr Pye demonstrates or materially confirms the firstnamed plaintiff is a reliable witness as to the making of the collateral promises.
I turn then to the agent’s evidence. I have already indicated that in my view the agent gave an essentially coherent and probable account of the sequence of his dealings with the first plaintiff. The framework of events is, however, not determinative of the content of the terms of the critical conversations alleged by the plaintiff. In this regard Mr Selimi attacked the consistency of the agent's account of conversations at the time of the signing of the first and second contract notes. He did this both by way of extended cross-examination and final submission. I accept that there were some inconsistencies in the agent's evidence as to these matters including in particular his evidence as to whether the first plaintiff told him it would take six to 12 months to get a permit and whether the first plaintiff told him that it would be most unlikely that any permit could be obtained for a 29 unit development within four months.
I also accept that there was some inconsistency in the agent's evidence as to whether the potential density of development upon the land in issue was discussed when the agent walked over the land with the first plaintiff prior to the execution of the contract notes.
Furthermore, the agent conceded that a number of aspects of the first plaintiff's version of events could have occurred although he had no positive recollection of them, e.g. the possibility that concern about the special condition was expressed at the time of the signing of the first contract note.
Turning to the agent's evidence as to the events after the contract and in particular during the period approaching and after 31 July 2000, I again accept that there were some inconsistencies in the evidence he gave during the protracted and detailed cross-examination to which he was subjected. An example is the answers which he gave to questions as to whether and how he went back to the vendor with the plaintiff's partially completed permit application documents. Further, it must be accepted that the agent elaborated one aspect of his evidence as to what was said between himself and the first plaintiff in terms which had not been put in cross-examination to the first plaintiff. This was the statement that after the contract had broken down and the first plaintiff returned from overseas, the conversation in which the first plaintiff was advised by the agent that the vendor had a new purchaser included an offer by the agent to try and on sell the first plaintiff's plans and permit application documentation to such purchaser.
Mr Selimi put particular weight on the agent's frank concession that he has reconstructed events to the best of his ability. It is however apparent when this concession is taken in context that what he intended to mean was that he had reconstructed events to the best of his memory and belief. I do not accept that his evidence should be regarded as having no basis in memory. What he conceded was that his memory was not complete. Even if his evidence were to be classified entirely as reconstruction however this would not materially assist the plaintiff. The first plaintiff's evidence was in my view substantially less persuasive than that of the agent whether the agent's evidence be characterised as reconstruction or not.
The first question in issue between the parties is whether the agent ever gave assurances to the first plaintiff in the terms alleged as the basis of the claim. Ultimately the plaintiffs criticisms of the agent's evidence simply do not persuade me that the firstnamed plaintiff's evidence in this regard should be accepted.
When they are weighed up as part of the evidence as a whole, neither the matters I have highlighted by way of criticism of the agent's evidence or the matters identified by Mr Selimi in final submission persuade me that the agent deliberately fabricated evidence or that his answers can be regarded as demonstrating that the plaintiff's account (suffering from the defects which I have identified) should be regarded as more probable than not.
In the circumstances the plaintiffs' claim must fail. Having regard to the evidence as a whole, I am not persuaded that the agent made any of the representations relied on as the basis of the claim.
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