Song v Brady Lonsdale Pty Ltd

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMERCIAL DIVISION
GENERAL LIST

Revised
Not Restricted
Suitable for Publication

Case No. CI-21-02420

YING SONG	First Plaintiff
and
EVONNE HU	Second Plaintiff
v
BRADY LONSDALE PTY LTD (ACN 165 645 483)	Defendant

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JUDGE:	HIS HONOUR JUDGE MACNAMARA
WHERE HELD:	Melbourne
DATE OF HEARING:	13-16 and 19-20 September 2022; 5-9 and 12-15 December 2022; 30-31 January 2023
DATE OF JUDGMENT:	24 February 2023
CASE MAY BE CITED AS:	Song & Anor v Brady Lonsdale Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 239

REASONS FOR JUDGMENT
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Subject:SALE OF LAND – MISLEADING OR DECEPTIVE CONDUCT
Catchwords: Off the plan sale of residential unit – whether sale procured by misleading or deceptive conduct by vendor’s agent – Australian Consumer Law, ss4, 18, 236 and 243 – no misleading or deceptive conduct established – even if misleading or deceptive conduct were proven, no reliance on such conduct established – plaintiffs’ claim dismissed – extension fee to be characterised as illegal “second deposit” – extension agreement void – “second deposit” recoverable by purchasers – Sale of Land Act 1962 (Vic), s9AC – counterclaim successful – damages recoverable by defendant vendor for repudiation of contract.
Legislation Cited: Sale of Land Act 1962 (Vic); Land Tax Act 2005 (Vic); Instruments Act 1958 (Vic); Trade Practices Act 1974 (Cth); Supreme Court Act 1986 (Vic)
Cases Cited:Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 19; Australian Competition and Consumer Commission v Woolworths Group Limited [2020] 281 FCR 108; Broughton v B & B Group Investments Pty Ltd [2017] VSCA 22; Browne v Dunn (1893) 6 R 67; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; Lord Buddha Pty Ltd (in liq) v Harpur (2013) 41 VR 159; Gould v Vaggelas (1985) 157 CLR 215; Potts v Miller (1940) 64 CLR 282; Holmes v Jones (1907) 4 CLR 1692; Flight v Booth (1834) ER 1087; Victorsen v Easy Living Holdings Pty Ltd [2019] NSWSC 172; Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1; Batey v Gifford (1997) 42 NSWLR 710; Wollert Epping Developments Pty Ltd v Batten (2019) 60 VR 92; Simcevski v Dixon (No 2) (2017) 53 VR 357; Burke and Riversdale Road Pty Ltd v Gemini Investments Pty Ltd [2003] VSC 33; Nund v McWaters [1982] VR 575; McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; Bill v Clarke [2015] VCC 1721; Bensons Property Group Pty Ltd v Manderson and Tan (No 3) [2021] VCC 326; Ironbridge Holdings Pty Ltd (administrators appointed) (receivers and managers appointed) v O’Grady [2020] VSC 344; Perre v Apand Pty Ltd (1999) 198 CLR 180; Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529

Judgment:

Within 14 days of this day the plaintiff must bring in short minutes to give effect to these reasons.
Costs reserved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Love	Australian Legal Advisory Centre
For the Defendant	Mr M Tennant	Thomson Geer Lawyers

HIS HONOUR:

Background
1The first plaintiff, Ms Song, describes her occupation as “business manager”. English is her second language. Her first language is “Chinese” (presumably Mandarin). She gave her evidence via an interpreter. (Transcript (“T”) 46, Lines (“L”) 25-39).
2Having worked as an “IT technician” in China, Ms Song migrated to Australia in 2006. She said that her work as an IT consultant for over 10 years “was very demanding and tiring”. She said she had a “very high income” and so:
“… wanted to give my daughter a better education, so I decided to migrate to Australia. And, at this time, I had, like, a conflict with my husband, because he wanted to stay in China. … I brought my daughter to Australia, financially, we [scil Ms Song and her husband] are still intertwined together.” (T47, L10-13)
3Ms Song said that she was divorced “and we have been separated for a very long time, and, sometimes, I still return to China to visit my daughter’s father”. (T47, L17-18)
4Ms Song said that on arrival in Australia she wanted to follow a career other than as an IT consultant. She brought a diamond from her family’s collection, sold it and used the proceeds to purchase a house in Murrumbeena with the assistance of a loan from HSBC Bank. The property was situated at 9 Stillwater Street, Murrumbeena and was priced at $680,000. (T49, L27-35) She said she purchased this property at auction in June or September 2010. (T51, L24-27) She used this house as her residence. (Ibid, L34-36)
5Ms Song said she purchased another property in Kramer or Claremont Street, which she said she purchased “under the name of my husband”, with the assistance of a bank loan. (T51, L37 – T52, L46) She said she used this property as “an investment property and I can get rental from that property”. (T53, L1-2)
6Ms Song described buying two other properties “from a land and house package”, and properties “in other suburbs that are far away from Melbourne”. (T56, L10-11) These properties were located at 8 Bourke Street, Cranbourne North and 8 Brocker Street, Clyde North. (Ibid, L21-46) The prices for these properties were $390,000 and $480,000. (T57, L9-10) She also mentioned a property at 4 Wellsford Court, Eynesbury. (T59, L16-17) This property was also held for rental purposes. (Ibid, L20)
7In June 2016, Ms Song said she sold the Murrumbeena property and moved in with her daughter, Ms Hu, who is the second plaintiff in this proceeding and who, at that time, was resident in the property in Claremont Street, South Yarra. (T60, L36 – T61, L7) The sale of the Murrumbeena property raised $920,000. (T61, L14)
8The narrative now turns to the transactions subject of the present proceeding.
9According to Ms Song:
“After I sold my house in 2016 because I was living in a small place I was planning to buy another property that I can live and invest at the same time and at that time my mother was sick so I frequently travelled back to China to take care of my mum.” (T62, L1-4)
10Ms Song said she was “looking for a two bedroom and two bathroom property in the CBD because it’s convenient for me”. (Ibid, L12-13) She said she wanted to live in this unit and might rent it out in the future. (Ibid, L17-18)
11Ms Song said that she first investigated properties in Collins Street “but they were a bit too expensive for me and also the investment return wasn’t very … good”. (Ibid, 23-25) She was also interested in a building development known as Aurora located in La Trobe Street. (Ibid, L26-27)
12Ms Song said:
“the aurora [sic] building had been advertising since 2014 and it was sold by that Asia ..... Infrastructure and after I had sold my house in Murrumbeena in 2016 in August I started paying attention to that building named Aurora. I called them and asked about the building. They gave me the plan – the floorplan and then some introduction pamphlets. Aurora is right opposite to Melbourne Central and it’s also a high rise with a glass – glass windows.” (T63, L23-28)
13She considered buying a unit in the Aurora building “but then it was a bit too far from Collins Street so I just put that plan aside”. (Ibid, L35-36)
14Ms Song explained:
“Collins Street is a very famous CBD street and so I have friends from Shanghai that will come to visit me in Australia as well and then we walked around CBD and all of us have a very good impression of Collins Street so it was like a – a street in Shanghai for us. So I also inspected properties at Collins Street but they were too expensive for me. So there are a lot of shops along Bourke Street so it’s not a suitable place for me to live.” (T65, L17-22)
15She continued:
“Lonsdale Street is a famous street as well for a lot of law firms. So because it’s a famous street and a lot of people who work there have high status and so Lonsdale Street is relatively more impressive to me than La Trobe Street.” (Ibid, L27-30)
16Ms Song saw a billboard advertising a development at 380 Lonsdale Street. (T65, L38-46) The billboard referred to “380 Melbourne”. (T66, L3-5) The billboard was in Little Lonsdale Street at the intersection between Queen Street and Little Lonsdale Street. (T66, L11-18)
17She then entered a sales office for this development where she saw “a big model”. (Ibid, L33-34) Ms Song found a sales person promoting the development to a mother and daughter who were inspecting the model. (T67) This model is shown in a promotional brochure. (Court Book (“CB”) 3545, T68, L31-42) The model depicted the development as a whole fronting Lonsdale Street. (Ibid, L44-46, CB 3546)
18Ms Song said that she remained at the sales office for as long as three hours. A sales person, Mr Wang, asked her “Are you interested in that property?” and she said “I was, like, yes”. (T69, L15-16)
19Mr Wang gave evidence on behalf of the defendant, Brady Lonsdale Pty Ltd (“Brady”). He described the “spiel” which he and his colleagues customarily gave to prospective buyers at the time of Ms Song’s initial enquiry. He did not, as I understand it, at least relative to his initial contacts with Ms Song, purport to have a distinct memory of this encounter. Rather, he described what he and his colleagues customarily said and did such as the various permutations and combinations in the marketing process and so on. (T901-903) He said “our main selling tool” was a flipbook. He continued:
“It’s a big A3 size. Well, of course, my standard practice will be I will show them the façade again, the image of the building. I will – next will be followed by showing them the aerial map to show the location again. So, as I said, I like to go from the location first and down to the smaller things. So – and then once we’ve done that, I show them some render photos, like your games area, your swimming pool, where it will look like the renders, your residence lounge. First, I will show them some renders like that, and then I will show them the two colour schemes which is available to choose of the plan, a dark-colour scheme and the light-colour scheme. Mainly the difference is the stone colour, one is darker than the other, and also the cabinet inside the casket, one is actually, like, olive green and one is finished in purple inside.” (T902, L24-34)
20He explained the differences between the various floors and the features of apartments on one series of floors as distinct from another. The model depicted two high rise towers set on a podium. The taller of the two towers, known as the south tower, was depicted on the podium adjacent to Lonsdale Street. The northern and taller tower was set abutting Little Lonsdale Street to the rear of the complex – if one takes Lonsdale Street as representing the frontage. (CB 3547)
21Ms Song said that the building, as depicted in the model, appeared “very beautiful”. (T69, L28) She continued:
“And it’s also scarce land in the – in the CBD. And if the developer is able to get that piece of land, it means they are very – very outstanding. Mr Wang is also Chinese and he – he told me he was from Shanghai or from a city in Jiangshan.” (Ibid, L32-35)
22She said that since she and Mr Wang had a “common background … and similar cultural background”, it was easy for them “to communicate”. (T70, L3-4)
23Ms Song said that her conversation with Mr Wang lasted “around 10 minutes”. (Ibid, L10) Ms Song said she was also attracted to the building because it was designed by the famous designer “Elenberg Fraser”. (Ibid, L20)
24Ms Song said Mr Wang gave her a copy of a brochure. (CB 1378-1380, T72, L17-38) Ms Song said that Mr Wang then conducted her to the second floor of the sales suite “and there was a display suite there and there is also a kitchen display and, like, a bathroom display over there”. (T73, L31-33) This enabled her to view the kitchen appliances and electrical appliances. The display suite used Miele appliances, but Mr Wang told Ms Song she “could upgrade it to Gaggenau and it was … a very famous Italian brand”. (Ibid, L40-41)
25Ms Song said that when she reached the second floor “there was a video that was playing there ..... and then we went through that brochure”. (T75, L10-11) She said she remained in the display suite for “around two hours”. (Ibid, L17-18) She understood the development in outline as being:
“So the north building is for residential purposes. The south building is for hotel and above the hotel is three bedroom apartments and there are common facilities. Balconies, a swimming pool, gym room, cinema, library and function room.” (Ibid, L23-26)
26The film or video which was, it seems, on continuous loop had an audio accompaniment in the form of music. (T76, L33 – T77, L3)
27According to Ms Song, “Mr Wang told me the name 380 Melbourne came from the address, 374 to 380 Lonsdale Street”. (T78, L12-13) She said Mr Wang “kept repeating Lonsdale Street, Lonsdale Street to me”. (Ibid, L36-37)
28As to the issue of access, if Ms Song purchased an apartment in the complex, she said:
“So south and north is a whole – is a whole part of the project. It had shop, hotel, residential area. They are combined together. The main entrance is in Lonsdale Street ..... common area, swimming area so they are – they have access these common facilities like gym, swimming area, lobby together. So the two building are very alike just like Aurora so I had an impression of what it would be like.” (T79, L5-10)
29She referred to the Aurora development in La Trobe Street, continuing:
“So I think it would be like Aurora so everything will have – I would be – I would have access to all of those facilities. And Brady is also more famous than the developer of Aurora. And I was thinking that Brady would build a very beautiful lobby. And Mr Wang said Brady has won an award for this building and so I was sure they would build a very beautiful building .....” (Ibid, L14-18)
30She said that Mr Wang specifically told her that the entrance to the residential sections would be from Lonsdale Street. (Ibid, L36 – T80, L3)
31Ms Song said that Mr Wang recommended a particular proposed apartment as suitable for her, namely:
“two bedroom that were facing Lonsdale Street. One bedroom was facing Elizabeth Street and the view is South Yarra River.” (T80, L17-18)
32She said she was able to conclude that South Yarra would be visible from this unit, despite it not having been built, by reference to the model. She was confident that South Yarra would be visible from the 39^th or 40^th level. (Ibid, L45)
33Ms Song said she was looking for a two bedroom, two bathroom apartment and her budget was around “700,000 to 800,000” [scil dollars]. She said she asked Mr Wang:
“ ‘Are you sure it’s Lonsdale Street?’ And he told me Lonsdale Street was written on the contract. And he said if it wasn’t written in the contract you can just not buy it – you can don’t buy it. And there were a lot of contracts at that sales office as well so he could give me one.” (T81, L12-15)
34Mr Wang gave her a blank form of contract. (Ibid, L19)
35Ms Song said she was originally offered 3908. (T85, L4-5) As depicted in a plan at CB 3785, “Lonsdale Street” is visible from this unit. (T85). Ms Song said she understood that the entrance to this unit “would be on the Lonsdale Street side frontage of the south tower” because the two buildings [viz towers] are one project. (T86, L28-31)
36Ms Song said:
“Initially I wanted to purchase this apartment in my own name, but then Mr Wang told me about this First Home Buyer Grant, and he asked me about my daughter, and my daughter never purchased any property before. … Mr Wang proposed that I could buy this property in the name of my daughter, and in the future this property can be nominated and it will be very convenient.” (T95, L35-43)
37Ms Song said:
“I didn’t take that suggestion right away because at that time I had not seen the contract yet. Therefore, I would like to – I would like to confirm if this is the correct address – I mean, if the contract is for the correct address, that which is 380 Lonsdale Street. And after I confirmed the contract, I called my daughter to come here and sign the contract.” (T96, L30-34)
38Mr Wang could not say one way or the other whether he had discussed the First Home Owner Grant with Ms Song or Ms Hu (her daughter, the second defendant) in March 2017. (T917, L30-41) He said that his understanding of the rules as to the First Home Owner Grant as at March 2017 was as follows:
“With First Home Owner Grant is the property is must be under 750,000 and must be a first home. You must be living there for at least 12 months after settlement to qualify for a $10,000 bonus or incentive from the government as the First Home Owners Grant. [sic]” (T917, L9-12)
39Mr Wang said that apartment 3908 was selected by the following means:
“… we narrowed to the apartment-type number 8. That’s one she likes on the corner because it’s a corner unit, two-bed, two-bath, meets her requirements and had plenty of natural light. That’s what she wanted as well. How we come to that particular floor is, as I mentioned before, the bay window. She wanted me to find her a big bay window in the living room and if it had a big bay window, master bedroom would be perfect. So that’s how we came to the level 39.” (T916, L10-16)
40The big bay window was located in the living room. (Ibid, L20)
41Mr Wang said he had a meeting with the second plaintiff, Ms Hu, the same day in the afternoon. (Ibid, L37-39)
42Ms Hu said that some time in March 2017, her mother telephoned her and asked her to go to the Brady’s sales office. Ms Song did not explain why, indicating she would speak to her daughter on her arrival. She said she went first to the ground floor reception area in the sales office and met her mother, Ms Song, and Mr Wang. She said Mr Wang showed her the model of the proposed development. (T707)
43Ms Song, told her daughter that she was interested in the property at 380 Lonsdale Street. She explained to her daughter that:
“this building will be – based on the model Mr Wang described to us, that it will be a complex consisting of retail stores and commercial properties, a hotel, but it’ll also have a residential part in it, so she was really interested in a complex like that.” (T708, L40-43)
44Ms Hu said that following this discussion she, her mother and Mr Wang adjourned to the “first floor”. (T709, L1) Mr Wang’s presentation, as Ms Hu remembered it, was about 10 minutes. (Ibid, L21) They had gone upstairs to inspect the display suite. (Ibid, L46) Ms Hu viewed the video being shown at that level. (T710, L14) Ms Hu said she was given a brochure. (Ibid, L34) She said the brochure had printed on its front page “380 Melbourne”. (Ibid, L44) She said “380 Lonsdale” was on the second page next to the building. (Ibid, L46) Mr Wang, she said, went through the brochure with Ms Hu in the presence of Ms Song. (T711, L14-17) She said Mr Wang:
“mentioned about the first homebuyer program, because he knew at that time I – it would be my first property, if I was – so he showed us a flyer to explain the first homebuyer program. [sic]” (Ibid, L45-47)
45Ms Hu said the contract was prepared by Mr Wang and she, her mother and Mr Wang “went through the contract”. (T772, L34-35) Ms Hu said that the contract was “up to my mother”, (T773, L21) which I assume meant that Ms Hu’s involvement was to be solely nominal.
46She said that she did not go through the vendor statement under s32 of the Sale of Land Act 1962 “in detail”. (Ibid, L26) She continued:

“After going through the document, my mum – with my mum, we confirmed the details of the address, 380 Lonsdale Street, then we – I signed and initialled the pages where Mr Wang asked me to.” (Ibid, L30-32)
47Ms Hu continued:
“After we signed the contract, I remember we paid deposit. There – there was a deposit of $5000 that my mum paid in cash. We – we also paid for the upgrade for the dishwasher, which I think was – so in addition to the 5000 deposit, we also paid 2000. And again, it was paid by my mother. (Ibid, L37-40)
48The Contract of Sale for apartment 3908 signed by Ms Hu as purchaser and dated 24 March 2017 (CB 3670) had a front sheet with the words “380 Melbourne” in a stylised logo in large print with the words “380 Lonsdale Street, Melbourne, Victoria, 3000” immediately below. (CB 3665) It consisted of the standard form contract of sale of real estate particulars of sale, as prescribed by the Estate Agents (Contracts) Regulations 2008, (CB 3670) showing Ms Hu as purchaser and Brady as vendor. The contract was signed by Mr Daniel Brady as “attorney under power of attorney” on behalf of the defendant vendor.
49The section identifying “purchaser’s lawyer or conveyancer” with provision for name, address, email or fax number was blank. The property was identified as apartment 3908 “380 Melbourne, 374-380 Lonsdale Street, Melbourne”. (CB 3672) The apartment was said to be identified “on proposed plan of sub-division PS801172E, being part of the land in Certificates of Title, Volume 8588, Folio 836 and Volume 3105, Folio 924”. This proposed plan of sub-division related to the north tower. The purchase price shown was $847,000 with a deposit of 10 percent of $84,700, $5,000 of which was paid with the balance of deposit of $79,700 payable on or before 24 April 2017. The balance payable at settlement, therefore, was $762,300. The deposit was said to be payable to the Thomson Geer Trust Account at Westpac Bank, 360 Collins Street, Melbourne. (CB 3673) There was a special condition providing for the upgrade of appliances to the Gaggenau brand. (CB 3675)
50Next, the contract included general conditions of sale from 1-28.5. (CB 3677-3688) There followed a lengthy set of special conditions from 1.1-58.3. (CB 3689-3726) There was a set of amendments or variations to the general conditions commencing halfway down page 3695 of the CB, paragraph 1.3, and extending to the bottom of CB 3696.
51Clause 11.2 of the general conditions provided:
“If the land sold is a lot on an unregistered plan of subdivision, the deposit:
(a) must not exceed 10% of the price; and
(b) must be paid to the vendor’s estate agent, legal practitioner or conveyancer and held by the estate agent, legal practitioner or conveyancer on trust for the purchaser until the registration of the plan of subdivision.” (CB 3681-2)

52Special condition 6.1 provided “The Deposit must not exceed 10% of the Price”. (CB 3700)
53Special condition 6.2 provided:
“The Vendor and the Purchaser acknowledge and agree that:
(a) the Deposit (including any part of the Deposit that is provided by Bank Guarantee) is not intended to exceed 10% of the Price; and
(b) any amount received by the Vendor’s Lawyer or other person on the Vendor’s behalf as payment of the Deposit in excess of 10% of the Price is received in error and must be immediately refunded to the Purchaser or the Purchaser’s representative.” (Ibid)

54Special condition 45 headed “Late settlement” provided:
“If the Purchaser does not settle by 3pm on the Settlement Date it must if demanded (in addition to any other moneys payable) pay to the Vendor at settlement an amount equal to:
(a) lost interest if the moneys had been received and deposited with a financial institution;
(b) all Loss sustained by the Vendor as a result of the Vendor not completing the purchase of any other property on the due date and repay existing borrowings including penalty interest, bridging finance, additional interest and legal costs.” (CB 3721)

55The Particulars of Sale provided for settlement to occur on the later of:
“(a)14 days after the Vendor gives written notice to the Purchaser that the Relevant Plan of Subdivision has registered; and
(b) 14 days after the Vendor gives written notice to the Purchaser that the Occupancy Permit has issued for the Property.” (CB 3674)

56The particulars continued “At settlement the Purchaser is entitled to vacant possession of the Property upon acceptance of title and payment of the Purchase Price”. (Ibid)
57General condition 16.1 provided “Time is of the essence of this contract.” (CB 3684)
58However, general condition 27 provided, under the heading “Default notice”:
“27.1A party is not entitled to exercise any rights arising from the other party’s default, other than the right to receive interest and the right to sue for money owing, until the party is given and fails to comply with a written default notice.
27.2 The default notice must:
(a) specify the particulars of the default; and
(b)state that it is the offended party’s intention to exercise the rights arising from the default unless, within 14 days of the notice being given –
(i)the default is remedied; and
(ii)the reasonable costs incurred as a result of the default and any interest payable are paid.” (CB 3687)

59Ms Hu said “In 2019, I was studying in London. I was doing a master’s degree at the … London School of Economics, LSE for short”. (T774, L39-40)
60Ms Song wanted her daughter to execute a Deed of Variation of the Contract of Sale. Ms Song printed it out and “she flew over from Melbourne to London … to get [Ms Hu’s] signature”. (Ibid, L43-44) The Deed of Variation dated 15 April 2019, was expressed to be between Brady as vendor and Ms Hu “and/or Nominee” as purchaser. The variation substituted a new floorplan for apartment 3908 and modified the Particulars of Sale so as to show the price inclusive of goods and services tax for the apartment as being $849,600, the deposit as $84,960, with a balance of $764,640 payable at settlement. The variation also included the insertion of a further special condition providing for the extension of the kitchen island bench and the modification of the location of power points and certain other minor matters as to the detail of the apartment. (CB 2022-6) A receipt dated 14 June 2019 from Brady’s solicitors, Thomson Geer, recorded payment of a further $260 by way of deposit relative to apartment 3908. (CB 2027)
61Ms Song said that:
“When I signed the contract in 2017 I was told this property would be settled in 2019. Therefore, I had my funds ready during this period of time. … I ran into Mr Wang on that day in 2019 and I was told the settlement of this property will be delayed until 2020, and that will be a significant amount of time. So as an investor I just invest into other areas.” (T111, L22-26)
62Ms Song’s reference to her signing the contract is presumably intended to be a reference to her daughter’s signing the contract at her request.
63In 2020, according to Ms Song:
“Mr Wang gave me a call because I had been – I had thought that this property would be settled in June 2020 and nobody contacted me or nor did I receive any correspondence from Randy [scil Brady] during this period of time, and in the middle of September Mr Wang gave me a call.” (Ibid, L37-40)
64However, there had been exchanges via the WeChat App relative to these matters earlier in 2020. The exchanges between Mr Wang and Ms Song, originally in Mandarin with a certified translation into English, appear at Court Book 4154-4166 beginning 1 April 2020.
65Mr Wang said that he initiated these exchanges:
“Because at that time, I was also contact by head office, stating that 3908, which is that apartment, which I sold, they still haven’t nominated a solicitor yet. So that’s why they got me to contact the purchaser and ask for them for the lawyer’s representative because settlement is coming up shortly, so they need the lawyer’s correspondence details from Ms Song. [sic]” (T925, L35-39)
66Ms Song referred Mr Wang to Ms Min Juan Dai of Australian Legal Advisory Centre [sic], Level 4, 250 Queen Street, Melbourne, Victoria, 3000, (CB 4156) giving Ms Dai’s mobile telephone number.
67Mr Wang said:
“So once I receive this information, I would have passed to head office, my internal lawyer, which is called James Tay, and feel that I should pass that to Thomson Geer for the reference, so I don’t actually contact Thomas Geer directly.” (T926, L1-3)
68In mid-2020, Mr Wang became aware that apartment 3908 would have a street address of 371 Little Lonsdale Street. He said he discovered this “when the signage was put up”. (T926, L34)
69According to Brady, settlement of the purchase of apartment 3908 was due 14 September 2020. It did not occur on that date and has not occurred since. On 17 September 2020, Mr Wang telephoned Ms Song but could not get through. He asked her to call back. Mr Wang sought to make contact because he had been informed by “head office” that settlement had not proceeded on 14 September and requested him to “contact your client to find out what’s actually going on”. (T927, L30-33)
70Mr Wang received a text message “Is it not too late now” from Ms Song on the afternoon of 18 September 2020. (CB 4157) He said he had a telephone conversation with Ms Song and invited her to come to his office to discuss the matter. (T928, L4-12) During the telephone call, Mr Wang said he explained that failure to settle on the due date did not automatically cancel the contract nor forfeit the 10 percent deposit. (Ibid, L17-24)
71According to Ms Song, she was “pretty sure I would proceed with the settlement because if I don’t settle the property the deposit will be gone and the property will be gone as well”. (T114, L9-11)
72As at September 2020, Ms Song said there were difficulties in her raising funds. She said she had properties in China which she could realise to raise funds, but restrictions on travel due to the COVID-19 pandemic precluded her from going to China and therefore, as a matter of practicality, from making any of those sales. (T115) She said restrictions on capital movements from China which preceded the pandemic also played a role in her difficulties. (T116)
73Ms Song said:
“Before COVID-19 I could travel to China frequently. So every time when I returned from China I could bring some money with me, and also I would make some transfer through the legal channels.” (T118, L13-15)
74Ms Song had also sold her property at Murrumbeena and was looking to the proceeds of that sale also to fund the purchase of apartment 3908. (Ibid, L19-39)
75Mr Wang suggested that Ms Song inspect apartment 3908 on 20 September 2020. (T120, L13-14) This entailed the creation of a document styled “Purchaser Inspection Form” on Brady letterhead. The document identified Ms Hu as the purchaser. In answer to the question “Is your financing ready for settlement?”, the “No” box was crossed. Part 5 of the document was headed “Purchaser’s Comments”.
76At the meeting, Ms Song explained to Mr Wang her failure to settle in the following terms, according to Mr Wang:
“she has told me that she bought two properties. One in South Yarra and one in 380 Melbourne. So she’s – she has told me she’s currently applying for finance and waiting for settlement for the South Yarra property. So that’s why she believed she couldn’t finance this property, so she was willing to give up this unit. So was a – one part of the conversation she had. And of course, you know with – with my job, I try to encourage all customers to settle, if they can. So I – I encouraged her. I said, ‘Well, you haven’t even seen the property yet. If you’re thinking of living in South Yarra, why don’t you turn this into investment property instead’.” [sic] (T929, L36-44)
77Mr Wang agreed that it was in the commercial interest of his principal, Brady, and himself that the settlement should proceed. (T930, L3-9) Mr Wang said “So that’s my … job at that time, to encourage all customers to settle if they could.” (Ibid, L15-16)
78Mr Wang said he led Ms Song up through the lobby to level 39 to inspect apartment 3908. The first few comments on behalf of the purchaser were written by Mr Wang at Ms Song’s request, according to his account. (Ibid, L37-41) He said Ms Song requested that her daughter, Ms Hu, be asked to inspect before any sign off took place. (Ibid, L42-45)
79The first four items under “Purchaser’s Comments” therefore appear to be in Mr Wang’s handwriting. (CB 4114) The others were, it seems, written by Ms Hu. (T779, L32-33) Ms Hu said “So I took a lot of note, [sic] because I knew this property was very important for my mum. She wanted to buy this property and live in there …” (T780, L29-30) Ms Hu was intending to live in the unit as well. (Ibid, L44)
80Ms Dai of Australian Legal Advisory Centre, who is both a friend of Ms Song and her solicitor, said she first became aware that Ms Song had purchased a unit in the 380 Melbourne development around 30 March 2017. (T517, L35-44) At that stage, Ms Dai said she was not representing Ms Song for the purposes of the transaction. (T518, L9-12) Ms Dai said that she lent $60,000 to Ms Song for the deposit on the apartment. The moneys, she believed, were her own mother’s funds. (T518, L35-45) Ms Dai said that her mother and Ms Song, had a good relationship because “Ms Song often brought some medication for my mum from China”. (T519, L13-14)
81Ms Dai said she was also involved in preparing a nomination form relative to the Contract of Sale but was not otherwise acting. (Ibid, L31-47)
82Ms Song had commenced working for Ms Dai at her practice about July or September 2016. (T520, L17-18)
83In May 2020, Ms Dai said she received an email from Brady’s solicitors, Thomson Geer. (Ibid, L24-36) The email was said to be a general notification to be ready for settlement and informing that plans of sub-division or “occupant’s certificate can be ready”. (T521, L6-7) A trust account receipt from Thomson Geer (CB 1815 previously referred to) shows the $60,000 from the “Australian Legal Advisory Center [sic] Trust Account” as having been paid as part of the deposit for apartment 3908.
84Ms Song gave evidence that “in April 2020, I nominated solicitor Dai … to represent me”. (T331, L4-5) This was at a time when Ms Song says she was employed at Ms Dai’s legal practice known as ALAC. (Ibid, L9) Ms Dai denied that this was so. When asked about this evidence, observing perhaps non-responsively, “she [viz Ms Song] thought that Mr Wang is a wonderful person, is her younger brother, but tend to disaster.” (T591, L19-20)
85The correspondence from Thomson Geer was by way of email dated 26 May 2020 addressed to “Australia Legal Advisory Center” [sic] and said that Thomson Geer acted for the vendor, Brady, “and understand that you act on behalf of the Purchaser”. (CB 2610) The email also requested ALAC to “forward Nomination documents (if applicable) to our office as a matter of priority” noting that registration of the relevant plan of sub-division was anticipated in June 2020. (CB 2611)
86Ms Dai agreed that the email from Thomson Geer proceeded on the footing that, or perhaps more accurately, her practice, ALAC, was acting for Ms Song on the purchase. (T521, L28-31) Her reaction, however, was that since she was not acting, the correspondence had nothing to do with her. (Ibid, L40-44) She did not, however, respond stating that she had no instructions or that she was not acting. She said “At that time, I don’t need to do anything because I wasn’t representing”. (T522, L5)
87Ms Dai said that she “thought Ms Song was very capable”. (Ibid, L16) She said “My position at that time is if I’m not acted … I don’t make a reply. [sic]” (Ibid, L33-38) She said she did not contact Ms Song “because we have the very frequent contact, so I think the – she already know settlement to come in and I already know she want to proceed the settlement but prepare funds.” [sic] (T523, L5-7) Ms Dai did not accept that it would have been a breach of professional etiquette for Thomson Geer, believing that ALAC was acting, to correspond directly with Ms Song. (Ibid)
88Thomson Geer sent an email to ALAC dated 18 August 2020, once again, beginning, “[W]e act for the Vendor … and understand that you act for the purchaser”. The email said, “[T]he Occupancy Permit has now issued. A copy can be downloaded via the link below”. Also available for download was an item described as attachment on Annexure 6 “S2 Street Address Allocations”. The email indicated a projected settlement date in “the first week of September”. (CB 2656) Ms Song said:
“… Ms Dai told me about this email and said that the property on Lonsdale Street was going to settle and she already received the contact from the other party’s solicitor, but she would be looking after the details”. (T333, L22-24)
89Ms Song further said:
“I don’t remember specifically whether she [viz Ms Dai] forwarded the email to me, but I visited her in her office a lot, face-to-face, so she would have told me, definitely, and she told me that we were getting prepared to sell [sic – scil purchase] the property at 380 Lonsdale Street.” (T334, L1-4)
90As to the street allocation, Ms Song said she was aware that there was a street address allocation document annexed to the email, but she did not click on the link and view it. (T335, L15-17)
91By an email dated 3 September 2020, addressed to ALAC, Thomson Geer, on behalf of the vendor, Brady, sought urgent action on behalf of the purchaser requiring the acceptance of a PEXA invitation viz making an appointment for an electronic settlement and the signature and finalisation of online duties’ forms, also part of the electronic settlement regime, which now operates for conveyancing transactions in Victoria. (CB 2684) As previously noted, Ms Dai said that she did not regard herself or ALAC as having been engaged to act for the purchaser of the apartment and so she took no action. A follow-up email dated 8 September 2020 (CB 2685) again met no response.
92Later, in September 2020, there was an exchange of WeChat texts between Ms Song and Mr Wang, whereby a further 10 percent payment was made by Ms Song for the purposes of extending the settlement date to approximately 10 November 2020 (CB 4161), with that 10 percent additional payment characterised as an extension fee. (T940) A further bank cheque in the appropriate amount was paid and settlement was postponed to “[o]n or before mid of November”, (T942, L1-16) with payment made on 29 September 2020. (CB 4166)
93By letter dated 24 November 2020, Ms Dai, as the principal of ALAC, took a hand in the transaction for the sale of apartment 3908, in circumstances where she had for some months previously denied being retained. The letter was headed “Without prejudice save as to costs” and stated, omitting formal parts:
“…
Without Prejudice save as to the costs
Dear Sirs,
Re: Evonne Hu
We advise that we continue to act Evonne Hu.
We refer to our correspondence with your paralegal Ms. Lee-Anne Bruce concerning the contract between Ms. Hu and your client Brady Lonsdale Pty Ltd as to Ms. Hu’s obligation to settle on the contract of sale negotiated by Ms. Hu’s mother Ms. Ying Song.
As you know, as a result of communications with Ms. Hu’s mother and without our firm’s knowledge, our client paid a further 10% of the purchase price being $84,960.00 in anticipation of settling the contract.

Your client has accepted this partial payment toward the full price knowing that our client was not as of September 2019 in a position to pay the full balance. And your client offered to extend the settlement to 10 November 2020 in consequence.
We say that by your client having accepted the said additional payment they have effectively agreed to allow our client additional time to obtain the funds needed to complete the sale. However, 10 November 2020 was not a realistic date by which my client could obtain the funds need to complete the settlement.
Our client would not have made the said payment were it not for the indulgence that your client’s acceptance of the extra payment implies.
In order to resolve this matter, with the assistance of the parties’ respective legal representatives, we propose that we prepare a Deed of Variation in order to properly state the background and terms of a further agreement as to the terms of settlement.
We propose the following terms:
1. That the date for settlement be extended to 30 March 2002 without penalty interest.
2. That the Vendor’s solicitor will prepare statement of adjustments and settlement statement and forward these documents to the purchaser’s lawyer 3 days before the settlement.
Our client has been adversely affected by the consequences of the Covid lockdown and we urge you to take into account the difficulties this has caused our client along with many others.
We say that if you agree to a further delay in settling the contract this will not adversely affect your client’s rights in any material way that cannot be compensated for with subsequent adjustments.
Ms. Hu intends to go to China and access assets she holds there as soon as her departure and travel to China is allowed by the Australian authorities.
We say that this modified course is preferable for and in the interests of both parties and will avoid greater delay and unnecessary legal costs if the matter is not resolved amicably.
We seek your client’s urgent consideration on this matter. Please let us know of your position as soon as possible.
If the above proposals are agreed by your client, we shall draft a Deed of Variation accordingly.
… .” [sic] (CB 4116-7)

94According to Mr Wang, Ms Song carried out a further inspection of the apartment on 29 September 2020 in his company. He could not remember whether she was accompanied by her daughter. (T942, L26-45)
95Ms Dai had first raised the issue of the further payment of $84,960, said to be an extension fee, in an email to Thomson Geer dated 7 October 2020. Later the same afternoon, Ms Lee-Anne Bruce, paralegal respondent, stated:
“…
We are instructed the agent was approached by the mother who requested an extension due to needing to co-ordinate the settlement with settlement of another transaction for a property in South Yarra.
The mother and Evonne Hu both attended in person to provide a bank cheque for the additional deposit directly to the agent in consideration of granting a penalty free extension.
All communications have been in accordance with the contact information provided in the contract.
….” (CB 2759)

96Ms Dai made a demand for refund of the $84,960 in terms similar to the one made in her November letter, in an email of 29 October 2020 – Exhibit 1.
97Responding Ms Dai’s letter of 24 November 2020, Ms Bruce of Thomson Geer, denied the allegations of impropriety made against the vendor and the vendor’s solicitor and, further, it denied that 10 November 2020 was an unrealistic revised settlement date. A further settlement was proposed, including a number of conditions, most notably the following:
“(b)The Purchaser pays to the Vendor a non-refundable amount of $169,920.00 (Extension Fee), of which $84,960.00 has been paid, and which the Vendor may retain as the Vendor’s own property and which is not purchase money, within 5 business days of the date of this email. If the Purchaser settles the Property on the Extended Settlement Date, the Extension Fee paid by the Purchaser will be applied towards payment of the balance of the purchase price;” (CB 2771)

98Ms Dai responded, in a letter dated 8 December 2020, generally supportive of an extended settlement date, but remarking:
“…
However, we cannot accept that we would be required to pay a further 10% of the purchase price in order to obtain the said extension.
….” (CB 2779)

99The letter made further complaint about the circumstances in which the additional $84,960 was paid, either as a “second deposit” or as an extension fee. Continuing:
“…
Our client accepts that the vendor is entitled to the first instalment of an additional 10% of the purchase price as consideration for allowing an extension till 30 March 2021, but the further 10% is, in the circumstances and given the said impropriety of approaching our client directly, exploitative and unconscionable.
We are more than prepared to agree with the terms as proposed but on the basis of no further additional deposit to be paid and our client is able to accept the terms which she believes are fair and reasonable.
….” (CB 2779-80)

100Ms Bruce sent an email dated 29 January 2021, reiterating the vendor’s position as to the extension payment and offering the possibility of a further extension beyond 30 March 2021 in the event of the purchaser being unable to settle, to the date 13 April 2021, that is, another fourteen days. (CB 2794) This email was apparently responsive to an email from Ms Dai of 18 December 2020, headed “Without prejudice” and expressing concern, “if our client cannot complete the said date [13 March 2021] and require [sic] a week or two more”. (CB 2795) Ms Hanrahan of Thomson Geer sent an email to Ms Dai dated 1 April 2021, stating:
“Dear Min,
Please provide an urgent update on the below matter.” (CB 2794)

101Ms Dai responded in an email of 13 April 2021, stating, “We are pleased to inform you that we shall contact you on the issue of the settlement very soon”. (CB 2804) This was followed by a further email from Ms Dai to Ms Hanrahan, which stated inter alia:
“We refer to the above matter.
We advise that Ms. Ying Song is the incoming proprietor. Attached is the nomination form signed by Evonne Hu.
Please amend the invitation and send the invitation to us at PEXA. Please set up the settlement date on 21 April 2021 at 11:00am.” (CB 2814)

102The attached nomination form shows Ms Hu as purchaser and Ms Song as the nominee. Its operative terms were as follows:
“Pursuant to the general condition 18 of the Contract, the Purchaser nominates the Nominees as substitute Purchaser to take a Transfer or Conveyance in lieu of the Purchaser.
The Purchaser and the Nominees acknowledge that they are jointly and severally liable for the due performance of the obligations of the Purchaser under the Contract and payment of any expenses resulting from this nomination (including any Duty)” (CB 2815)

103Ms Hanrahan sought copies of the proposed nominee’s passport and visa documentation of application and the proposed nominee’s contact details, address, email and phone number. (CB 2816) By an email of 19 April 2021, Ms Dai responded to these queries. (CB 2818) Ms Hanrahan responded on the afternoon of 19 April 2021 stating inter alia:
“We are instructed that the Vendor, without prejudice to its rights, is agreeable to the proposed nomination as well as granting a penalty free extension of the settlement date to 21 April 2021 (Further Extended Settlement Date) on the same conditions as stated in Lee-Anne Bruce’s email dated 16 December 2020 save that our delayed settlement fee is now $660.
….” (CB 2824)

104The email concluded by asserting that, “Time remains of the essence and the Vendor reserves all rights and entitlements under the Contract”. (Ibid)
105As part of the preparation for settlement, Ms Dai received an email from the State Revenue Office described as “invitation to complete Duties Form” dated 19 April 2021. The heading to this document identified the address of apartment 3908 as “371 Little Lonsdale Street”. (CB 2849, T549) Ms Dai said that she “never received any notice of the change under section AC of the Sale of Land Act. I was wonder how can be happened?” [sic] (T550, L13-14) She said she rang her client, Ms Song, immediately. (Ibid, L19-28)
106Ms Dai said Ms Song said this was “impossible” and that she “must make investigate” [sic] (Ibid, L40) Ms Dai and Ms Song apparently had a second telephone conversation prior to 21 April 2021. (T551, L22-24) Ms Dai said that she and Ms Song had “about three or four conversations”. (Ibid, L30)
107Ms Dai was referred to a document generated by the PEXA Exchange dated 21 April 2021, (CB 2917-8) summarising “funds” of $752,539.54 described as “total sources”; $795,743.33 as being “total destinations”; with a figure described as “unbalanced - $43,208.79”. Ms Dai said this document in PEXA system served the same purpose as a settlement statement under the traditional form of conveyancing settlement. (T553-4) She denied, however, that the figure “minus $43,208.79” indicated a deficiency in funds available to Ms Song to settle the purchase. She said:
“No. Not at all. Because part of the PEXA exercise is not just for the settlement – is the balance of adjustment settlement. The party have to agree which party belong – to adjust it in favour of purchase, what part of the money belongs to – adjust in favour to the vendor. So source of the funds means … the fund, but unbalanced the fund is – not means the short fund. Maybe that fund hasn’t been discussed. Maybe that fund hasn’t been upgrade. So settlement only occur when all money available and upgrade, so that money not means … no.” [sic] (T553, L1-7)
108I asked Ms Dai how settlement adjustments are dealt with in the PEXA system and she replied “They – they have the portal, and you – you insert the funds paid by a vendor, paid by the purchase, and then … the balance.” (Ibid, L15-16) As to the issue of the address for the unit, Ms Dai sent an email at 11.15pm, after business hours late in the night prior to the scheduled settlement, in the following terms:
“Re: Nominee: Ying Song, the Purchaser: Evonne Hu Song from Brad Lonsdale Pty Ltd CAN 165 645 483, Property: Lot 3908, 380 Lonsdale Street Melbourne
Contract of sale dated 24 March 2017
We advise that we act for the nominee Ying Song and continue to act for the purchaser Evonne Hu.
We refer to the above property.
We are concerned that the identity of the property that our clients contracted to buy, being Lot 3908 380 Lonsdale Street, has been changed without proper notification/disclosure and that the vendor now describes the property in question as 3908 271 Little Lonsdale Street.
The Contract of Sale made 24 March 2017 expressly stated that the purchase was for Lot 3908 374 -380 Lonsdale Street, Melbourne. At all times our clients were led to believe that the street address Lot 3908 would be 380 Lonsdale Street, Melbourne and would remain so.
At no stage until now has Brady Lonsdale or its agents ever disclosed to the purchasers that the address of Lot 3908 might not be 380 Lonsdale Street and would in fact be 271 Little Lonsdale Street.
It was only as a result of my commencing settlement proceedings via PEXA on 16 April 2021 that I discovered that the address for Lot 3908 was now designated as 271 Little Lonsdale Street, Melbourne.
On 19 April 2021 , I caused a letter to Elizabeth Hanrahan seeking clarification of the property address and the title registration for Lot 3908.
On 19 April 2021, Ms. Hanrahan forwarded to me the New Street Address Allocations Information issued by Melbourne City Council with reference to the property 374 Lonsdale Street. The document in question is dated 26 March 2020 but the information contained therein had apparently been certified on 1 July 2020.
We are instructed that, if our clients had been informed that the property address of Lot 3908 would not be 380 Lonsdale Street but instead Little Lonsdale Street, they would not have entered into the Contract of Sale.
In order to clarify our position as to whether to proceed with settlement, we ask you to disclose following information:
1. Application SPEAR S153947P
2. All your correspondence between the vendor or vendor’s agent and Melbourne City Council in relation to the change of address from 374-380 Lonsdale Street to 271 Little Lonsdale Street in the period of 2016 to 16 April 2021.
We look forward to hearing from you as soon as possible.
Regards,
Min Juan DZ
Australian Legal Advisory Centre” (CB 2920-2921)
109On 22 April 2021, Ms Dai wrote to Ms Hanrahan of Thomson Geer stating that a scheduled settlement for the purchase of apartment 3908 at 2.00pm on 21 April 2021 “failed to take place as we did not receive your clarification or reply to our letter of 20 April 2021 as to the registered address for the property …” (CB 2924)
110On 28 April 2021, Ms Dai sent a letter to Thomson Geer setting out at length the history of the transaction as she saw it and concluding “In light of the above, the purchasers seek rescission of the Contract of Sale and refund of the said deposit moneys. We trust this can be achieved by mutual agreement.” (CB 2957-2964)
111Ms Dai sent an email in the afternoon of 7 May 2021 seeking a reply to her letter. On 11 May, Ms Hanrahan of Thomson Geer emailed Ms Dai:
“I’ve tried contacting your office today to discuss this matter.
Can you please give me a call at 03 8080 3518 to discuss when you are available?” (CB 2970)

112A substantive reply was given by Thomson Geer in an email transmitted on the morning of 13 May 2021. The letter denied the allegations made by Ms Dai, stating:
“We remind that the vendor remains willing, able and ready to settle the Property. The purchaser is and remains in default under the Contract for not completing settlement of the Property.” (CB 2978)
113The email demanded settlement “within 7 days from the date of this email” by not later than 20 May 2021, failing which it was said a Notice of Default and Rescission would be issued without further notice. (Ibid)
114Ms Dai sent a letter on the letterhead of her practice, Australian Legal Advisory Centre [sic], dated 20 May 2021. (CB 2990-2991) The letter stated, amongst other things, “We are confident that by its conduct the vendor has misled our clients as set out above and that, if the matter goes to court, we would be vindicated.” (CB 2991) Ms Dai said the contract should be rescinded and the deposit moneys refunded.
115If this were to occur, Ms Dai said that:
“our client will not seek any compensation for damages or payment of interest. In addition, if the vendor agrees to rescind, our client will forego her entitlement to the agreed rental concession in the sum of $9,100.00 being $50.00 per week for the rental she paid for the leasing of the property at 4005/285 La Trobe Street, Melbourne in the period 9 June 2017 to November 2020, of which the Vendor was the controlling party. In addition, she would consider to forgo [sic] her contribution to a dishwasher in the sum of $2,300.00, which she paid in 2017. Finally, although our client has incurred significant legal costs, she will not seek payment in this respect either.” (Ibid)
116Under cover of an email sent on the afternoon of 27 May 2021, Thomson Geer, on behalf of Brady, despatched a document styled “Notice of Default and Rescission”. The default alleged was that “The Purchaser has defaulted in the performance of the Purchaser’s obligations under the Contract of Sale by failing to pay to the Vendor the residue of the purchase money, being $764,640 and adjusted apportionable outgoings on the Due Date.” (CB 2993) The notice concluded “Unless the default is remedied and interest and legal costs paid in accordance with this notice, the Contract of Sale will be rescinded pursuant to General Condition 28 of the Contract of Sale.” (CB 2993-4)
117On 10 June 2021, the Australian Legal Advisory Centre, acting on behalf of Ms Song and Ms Hu, filed the Writ which commenced this proceeding.

This proceeding
Statement of Claim
118By their Second Amended Statement of Claim (hereinafter referred to as “the Statement of Claim”) the plaintiffs alleged that Ms Song was an investor in properties in Victoria, referring to some eight pieces of real estate which she had purchased since 2010. They said that the defendant, Brady, was a company whose primary business was the construction and operation of a largescale hotel, retail and residential complex in the Melbourne CBD, being the registered proprietor of land at 374-380 Lonsdale Street, Melbourne. They said Brady was the vendor developing property at that address and conducting a sales campaign for residential apartments in the Lonsdale Street property, via an advertising board, information available on the internet and from other sources at its sales office at 290 Little Lonsdale Street.
119They said that, on 24 March 2017, Ms Song, on her own behalf, and on behalf of her daughter, Ms Hu, attended the sales office speaking to a Mr Irwin Wang, an authorised employee of Brady, and discussed with him the purchase off the plan of an apartment. They said Ms Song was shown “visual displays” and other promotional material “that emphasised the address of the project as being 380 Lonsdale Street and which reinforced this feature by naming the building complex as a whole ‘380 Lonsdale Melbourne’.”
120They said that Mr Wang made representations to Ms Song to the effect that:
“a.the proposed development would be located in Lonsdale Street at the 380 Lonsdale Street and/or the Lonsdale Street property and that it would have a prominent location in Lonsdale Street close to the central part of the CBD of Melbourne;
b.the building would be very high and imposing, it would be very distinctive compared with other buildings in the vicinity, and would have an innovative and ultra modern design making it Visually spectacular;
c.the proposed building would include numerous residential units at the upper levels that would command excellent views of the Melbourne surrounds;
d.the proposed building would include a retail section at the ground floor level as well as offices at other levels;
e.the building would also be the location of a 5−star hotel so that the future residents would enjoy a hotel−style entrance to their apartments;
f.purchasers of the apartments would enjoy the amenity of a luxurious complex of facilities at Lonsdale Street and have ready access to retail shopping in the Melbourne CBD in Melbourne;
g.purchasers would receive $50.00 weekly rental allowance if the purchaser is the tenant of the property where the Brady Lonsdale Pty Ltd has control and manages the lease;
h.an advantage of purchasing an apartment is that Brady Lonsdale will be the managing agent for the Lonsdale Street development into the future. They will have set up an Owners’ Corporation and under certain circumstances will cover such fees for investors if they are unable to lease their unit.” (CB 57)

121They alleged further representations by Brady are as follows:
“(a) the residential units in the proposed Lonsdale Street project would have a street address of 380 Lonsdale Street; and
(b)by virtue of the building complex as a whole having the name “380 Melbourne”, when the only possible significance of the use of the number “380” was that it referred to the address of the Lonsdale Street property, properties sold in the development would have a Lonsdale Street address.” (CB 58)

122In that respect, they referred to the visual displays, advertising and commercial information, the information in the Vendor’s Statement under s32 of the Sale of Land Act 1962 (Vic) showing the postal address at the time of subdivision as 380 Lonsdale Street, Melbourne, and the front page of the relevant sale contract showing “apartment lot 3908 Melbourne, 380 Lonsdale Street Melbourne Vic 3000”, and “apartment 3908, 380 Melbourne, 374-380 Lonsdale Street, Melbourne, Victoria, 3000, Australia”.

123The plaintiffs said further that the “deployment” of the name “380 Melbourne” as the property name with the address 374-380 Lonsdale Street, Melbourne “was specifically intended to assure prospective purchasers that lot 3908 would have a Lonsdale Street address when Brady Lonsdale knew this was not the case”. (CB 58) They said none of the disclaimers attached to the advertising or promotional material included any reference to the street addresses of residential units being not as stated, and did not exempt Brady from responsibility for misleading conduct in respect of any representation that the units would have a Lonsdale Street address.
124They alleged further representations to Ms Song as follows:
“a.residential units could be purchased immediately by buying off-the-plan;
b.purchasing off-the-plan was a very good idea because it provided substantial financial benefits due to the fact that such a purchase would not attract stamp duty;
c.purchasing immediately would enable the purchaser to obtain the benefit of prices that would be substantially lower than what they would be once the building was completed;
d.a purchaser could tailor the set up of their unit to suit their own special needs at the time of signing the contract, so that some features could be built in with little extra cost while construction was in progress;
e.the Contract of Sale could be executed by Ying Song or any person authorized by her and settlement could be completed by Ying Song as the nominees of the purchaser.
f.Brady Lonsdale ~~(Brady Lonsdale Pty. Ltd.)~~ and Brady Residential Pty Ltd (“Brady Residential”) are companies operating under the Brady Group of companies.” (CB 60)

125The plaintiffs said inter alia that Ms Song was “attracted to the property’s address at 380 Lonsdale Street as it was a main or major Street and not a minor or small Street” and also because “she was of the view that main city streets and/or streets with a prestigious reputation resonate significantly in the eyes of Chinese business associates”. (CB 61)
126They said, Ms Song as an investor in Victoria:
“… was acutely conscious of the potential market value of the proposed unit, and was therefore of the view that a major street address such as Lonsdale Street would have financial advantages over a minor street such as Little Lonsdale Street for its future lettable value ….” (CB 61)
127They said that Ms Song had rejected opportunities to buy apartments in minor streets because they were not on a major street. The attractions of a Lonsdale Street address for Ms Song were, according to the plaintiffs:
“…
a.   the fact that the location of the Lonsdale Street project was a major, well-known street_in (sic) the CBD and not a minor laneway or secondary street;
b.   she was attracted to the fact of the development had a major street location for security reasons;
c.   she was attracted to a major street location because it suited her need to secure her family’s financial support from China wherein such support would not be forthcoming if she purchased a lesser property in a minor street;
d.   she was attracted to a major street location because having such a residential street address would enhance her business network, especially as regards Chinese customers for Whom such matters are important status symbols;
e.   Ying Song’s network in Australia and China would be acutely aware of Lonsdale Street’s significance and accord her greater respect and recognition as a result;
f.    she was also attracted to the financial benefit of buying off-the-plan;
g. she was considering making a gift of this property to her daughter, Evonne Hu, who was, and is, a university student.” (CB 63)

128The plaintiffs said, as a consequence of these matters, Ms Song asked Mr Wang for details about a two bedroom unit on an upper level involving the number “8”, with Mr Wang identifying apartment 3908, which they said he described as “especially good for Ms Song, as being a corner unit with a good view of Lonsdale Street”. At this point, the plaintiffs said Ms Song invited her daughter, Ms Hu, and “asked her to come to the display centre to consider whether they would like to purchase this unit”. (CB 63)
129The plaintiffs said that Mr Wang, to induce Ms Song and/or Ms Song and Ms Hu, represented to Ms Song that there was considerable interest in purchasing units in the Lonsdale Street project because of its prominent address and if she wanted to secure a unit at a good price, she could put a small deposit on one immediately and $5,000 paid forthwith would secure the Contract of Sale.
130The plaintiffs said that the representations described were made on behalf of Brady in the course of trade, and insofar as they were made as to future matters, were made in circumstances where “she” [scil he – Mr Wang] did not have reasonable grounds for making the representations. They referred to s4 of the Australian Consumer Law (being Schedule 2) to the Competition and Consumer Act 2010 (Cth) and to s2(2) of that Act.
131The plaintiffs said that, in reliance on the representation, Ms Song paid $5,000 “to secure the Contract of Sale … for … Lot 3908”, (CB 65) whereupon Mr Wang prepared a Contract of Sale showing Ms Hu as the purchaser. The contract included, it was said, a front page as previously described. Alternatively, Ms Hu entered into the relevant contract on her own behalf. The plaintiffs referred to the several matters contained in the Vendors Statement given under s32 of the Sale of Land Act 2010 (Vic).
132The plaintiffs alleged various terms to be found in the Contract of Sale and they referred to s9AA of the Sale of Land Act 1962 (Vic).
133The plaintiffs said the Contract of Sale was signed by Mr Daniel Brady as attorney for Brady, but no Power of Attorney was attached. They said he was not a director of Brady, moreover, the Vendor Statement was purportedly signed by an Anthony Brady, being a director, but the signature, it was said, was “only pasted in and was not an original signature”. (CB 67) Consequently, they said there was no note or memorandum to satisfy the provisions of s126 of the Instruments Act 1958 (Vic) and, accordingly, “the Contract of Sale was, and is, unenforceable”. (CB 72)
134They referred to the payment of a further $2,300 by the plaintiffs for “higher quality appliances” and to the nomination under condition 18 of the Contract of Sale by instrument dated 30 March 2017 of Ms Song as purchaser’s nominee.
135Next, the plaintiffs alleged, “further representations” made via information contained on the “internet” as follows:
“a.Ying Song accessed a website that purported to be the official website of 3 80 Melbourne;
b. the website home page was titled ‘380 Melbourne’ below which it stated ‘Diamond Collection—880 Lonsdale Street’, below which it stated ‘Situated in the absolute heart of the city, the Diamond Collection residences of 380 Melbourne elevate style, amenity and convenience to luxurious new heights.”
c. the backdrop to the said writings was an artist’s impression of what the completed building would look like.
d. in a video that shows images depicting the future amenity of the residential facilities on offer and that is accessible on the website the words ‘380 Lonsdale Street’ are flashed in the top left of the screen;
e.the s.32 Statement contains inter alia the following representation on the title page; ‘Apartment Lot 3908 380 Melbourne 374-380 Lonsdale Street, Melbourne’.
f. The 3.32 Statement contains inter alia the representations as to the address of the property being 374—380 Lonsdale Street, Melbourne as set out in paragraph 15B(e) herein.” (CB 73)

136The plaintiffs said that $19,700 and $60,000 were paid “towards the deposit”. They noted amendments to Plan of Subdivision PS 801172E, but said that Brady had failed within fourteen days after the registrar’s requirements for amendment to advise “the purchaser” in writing as to the proposed amendment.
137The plaintiffs referred to the variation to the Contract of Sale in March 2019 providing for an increase in the price of the apartment to $849,600 and the payment of an additional $260 as part of the deposit.
138The plaintiffs said that the City of Melbourne issued a statement on 26 March 2020, allocating the address 371 Little Lonsdale Street to the relevant apartment, but according to the plaintiffs, on 26 May the vendor’s solicitors advised them via the plaintiffs’ solicitors, ALAC, that settlement was expected in June 2020, referring to the address of the apartment as 374-380 Lonsdale Street. They said other documents served on the plaintiffs via their solicitors between 18 August and 11 September 2020, similarly referred to an address 374-380 Lonsdale Street. According to the plaintiffs, on or about 25 September 2020, Mr Wang demanded Ms Song pay a further 10 percent deposit of $84,960 towards the purchase of the apartment and made the following further representations:
“…
a . Apartments like Lot 3908 were very sought after in the market and he had made many sales.
b.   Many buyers were attracted to the idea of a Lonsdale Street address.
c.   He suggested Ying Song make efforts to settle on time.
d.   He said he could arrange finance if needed in order to proceed with settlement.
e.   But in order to secure the settlement, Ying Song must pay an additional 10% as a further deposit to the Vendor. If she paid this sum, he would use his personal relationship at Brady Lonsdale to ensure she would not be issued a default notice.
f.    He suggested he could arrange the prior settlement inspection forthwith.
g.   If Ying Song did not take reasonable action to agree to his terms, she would forfeit the paid 10% deposit immediately and the Vendor would sue Evonne Hu for loss and damage;
h.   to the effect that, if she wished to avoid rescission of the Contract of Sale by the Vendor, she was obliged to make the said payment;
i.    the Vendor was prepared to give an extension of time to pay the balance but only on condition that she pay a further 10% of the purchase price within 3 days;
j.    the Vendor was entitled to demand such a payment because they were giving her an indulgence;
k.   Lonsdale Street was very popular and the Vendor will sell Lot 3908 to other purchasers if Ying Song does not agree to pay the addition 10%;
l.    and there was nothing illegal or improper in demanding such a payment.” (CB 76)

139Ms Song made that payment in reliance on the representation and in the view that “she had no alternative but to agree”. The plaintiffs referred to an inspection of Apartment 3908 by both plaintiffs, such inspection being said to have occurred on “26 September 2020”. They said, “Mr. Wang continued to refer to Lot 3908 as having an address 380 Lonsdale Street”. (CB 76-77)
140The plaintiffs said that, on 29 September 2020, Brady’s solicitor sought “to establish a contractual agreement that the said further deposit of $84,960 … was a fee for agreeing to an extension of the settlement date”. (CB 77) On 7 October 2020, the plaintiffs’ solicitor demanded a justification for the further payment. According to the plaintiffs, “Any agreement by [Ms Song] and/or the Plaintiffs … was void under s 14” of the Sale of Land Act 1962 (Vic). They said, in the circumstances, Brady was said to return that amount and that the claim by Brady for the further amount:
“…was an action brought to charge a person, namely the plaintiffs, upon a special promise to answer for a default upon a contract of an interest in land and as such was required to be evidenced in writing pursuant to s.126 of the Instruments Act1958.” (CB 79)
141Since there was no agreement in writing, the payment was made in breach of s126(1) of the Instruments Act.
142According to the plaintiffs, on 16 April 2021, by reason of approval of an “NAB Base Variable Rate Home Loan”, Ms Song was in a position to settle the purchase, but the plaintiffs’ became aware for the first time that the address of the unit was not 374-380 Lonsdale Street, but 371 Little Lonsdale Street Melbourne. The plaintiffs referred to the ensuing correspondence and the service on behalf of Brady, of the Notice of Default & Rescission. This notice, according to the plaintiffs, was “deficient, inaccurate and inadequate” for the following reasons:
“…
a. The property land information in the Notice of Default & Rescission is different from that in the Contract of Sale;
b. The property address in the Notice of Default & Rescission is different from that in the Contract of Sale;
c. The amount claimed as being in default being $764,640.00 in the Notice of Default & Rescission is incorrect and does not take account of the additional payment in the sum of $84,960.00 that was paid on 28 September 2020 by Ying Song;
d. The amount claimed as being in default being $764,640.00 in the Notice of Default & Rescission is incorrect and does not take account of the additional payment in the sum of $2,300.00 that was paid on 24 March 2017 by Ying Song;
e. In the Notice of Default & Rescission no reference is made to the Deed of Variation of Contract of Sale executed on 15 April 2019;
f. the Due Date was incorrect, and should have been 13 April 2021.” (CB 82)

143Therefore, according to the plaintiffs, the Notice of Default & Rescission was of no legal effect, or not effective to end the Contract of Sale. Moreover, the plaintiffs had already terminated the contract by letter from their solicitors of 28 April 2021.
144Alternatively, according to the plaintiffs, Brady had repudiated the contract, which the plaintiffs had accepted. The s32 statement was said to be:
“… deficient, inaccurate and inadequate as it failed to disclose that the registered address for the residential apartment was Stage 1 of Plan of Subdivision PS 801172E may not be the address as stated 374-380 Lonsdale Street, Melbourne” (CB 83)
145The plaintiffs said that Brady would have been aware that the design of the project was such that it was almost certain, in accordance with Melbourne City policy, that the apartment would not have a Lonsdale Street address, but Brady chose not to disclose this essential information and to conceal an unattractive feature. It was said Brady devised the “ambiguous and misleading name for the building ‘380 Melbourne’”. (CB 83) The plaintiffs said, at no stage did Brady notify them unequivocally of the possible change in the address and repeatedly failed to notify them, even after the advice from Melbourne City Council. It was said that the s32 statement was not properly signed and was therefore invalid.
146It was said that Brady was, in the circumstances, liable for the conduct of Mr Wang, whereas the plaintiffs relied on the express and implied representations of Mr Wang, as Brady’s agent.
147According to the plaintiffs, the payment of the further sum of $84,960 was in contravention of s9AA(b) of the Sale of Land Act 1962 (Vic). In the circumstances, the plaintiffs said that Brady held an amount equal to 20 percent of the purchase price of the apartment as stakeholder. Alternatively, the further payment representations, as made by Mr Wang, were in trade and commerce and were misleading or deceptive, and were acted upon by the plaintiffs, whereas, in fact, the plaintiffs were not obliged to pay a further 10 percent deposit and Brady “concealed the fact that the said payment was a blatant breach of the provisions of the SLA”. (CB 87) The further payment representations were said to have been made in circumstances where Brady had a duty to take reasonable care, they were incorrect, made negligently and in breach of duty.
148Alternatively, they were misleading or deceptive and made in breach of s18 of the Australian Consumer Law. As a result of these matters, the plaintiffs were said to have suffered loss or damage. According to the plaintiffs, Brady was in breach of its statutory obligations under the Sale of Land Act 1962 (Vic) by virtue of s32K of that Act, in failing to provide information as to the likelihood that the address of Lot 3098 would not be Lonsdale Street. Brady was said, therefore, to have contravened s4 of the Australian Consumer Law in making representations in the course of trade and commerce without reasonable grounds, or without any belief in the truth of the representation. The plaintiffs said that, in reliance on those representations, they had suffered loss and damage. These representations were said to have been made negligently and in breach of Brady’s duty of care. The plaintiffs said they were entitled to compensation in accordance with s236 of the Australian Consumer Law. Alternatively, they were entitled to rescind, and did rescind, the contract by virtue of the plaintiffs’ solicitor’s letter of 28 April 2021.
149Alternatively the Contract of Sale was “void and unenforceable” for not being executed in accordance with s127(1) of the Corporations Act 2001 (Cth).
150There was also a claim of entitlement to rescind the contract by virtue of alleged deficiencies on the Vendor Statement under s32 of the Property Law Act 1958 (Vic) or a contention that, for these same reasons, the Contract of Sale was void ab initio.
151The plaintiffs’ claim, by way of loss and damage, is $172,220 interest under s58 of the Supreme Court Act and conveyancing costs, various declarations and an order for repayment of deposit moneys under s49(2) of the Property Law Act 1958 (Vic), together with damages pursuant to s236 or, alternatively, s243 of the Australian Consumer Law for consequential relief.
Defence and counterclaims
152By its Defence to the Further Amended Counterclaim (an amended counterclaim) (hereafter called the Defence and Counterclaim), Brady did not admit the allegations relative to Ms Song’s previous property dealings, it admitted that they have acted as developer for the site at 374-380 Lonsdale Street and marketed apartments off the plan as part of that development, but otherwise denied the allegations relative to its development role.
153As to marketing, it said that it engaged Brady Sales Pty Ltd, an associated entity, “to provide advertising, marketing, promotion and provision of sales staff”. (CB 103) It admitted the use of promotional material in the form of an advertising sales board, a scale model, a display suite, a website and visual presentation. It admitted that that Mr Wang, an employee of Brady Sales, “acted on behalf of Brady Lonsdale”. (CB 104) It recited what it said was the substance of what Mr Wang had said to Ms Song in March 2017:
“…
i. the Lonsdale Street Development was being constructed at the Lonsdale Street Property, which was located in a prominent location close to the centre of the Melbourne CBD;
ii. the Lonsdale Street Development would be very high and imposing, it would be very distinctive compared with other buildings in the vicinity and would have an innovative and ultra-modern design making it visually spectacular;
iii. the residential apartments located at the upper levels of the Lonsdale Street Development would have excellent views of Melbourne;
iv. the Lonsdale Street Development would have retail shops on the ground floor; v. the Lonsdale Street Development would have a luxury hotel operating at the site;
vi. purchasers of residential apartments in the Lonsdale Street Development would have access to the facilities located on level 7 and 8;
vii. retail shopping in the Melbourne CBD such as Emporium, Myer, David Jones and Melbourne Central was on the door step of the Lonsdale Street Development;
viii. Brady Owners Corporation Services Pty Ltd (Brady OCS) would be appointed the owners corporation manager for the Lonsdale Street Development on completion and an associated company would be appointed to provide facility management services allowing Brady OCS to keep owners corporation fees affordable;

“The following summary of principles as to the practical application of the guide provided by Gould v Vaggelas in misrepresentation cases brought under s 52 and s 82 of the Act, are derived from the cases referred to above:
***
2.However, an inference of inducement is no more than an inference of fact, which may be rebutted on the facts of the case. In order to rebut the inference, the representor assumes an evidentiary onus to point to facts inconsistent with the inference arising. Those facts, when weighed alongside the inference which is otherwise open to be drawn, may be sufficient to rebut it. For example, a rebuttal may be established by showing that the representee, before he entered into the contract, either was possessed of actual knowledge of the true facts and knew them to be true or alternatively made it plain that whether he knew the true facts or not he did not rely on the representation. A possible inference may also be rebutted by the direct evidence called, for example, where the direct evidence is inconsistent with the inference of reliance which may otherwise have been open to be drawn.
*** ” ((2013) 41 VR 159, 197)

265Mr Tennant said that the principles there enunciated by the Court of Appeal applied only where it was established that there had been misleading or deceptive conduct, which he said was not the case here. The present analysis is being undertaken upon the assumption (contrary to my actual conclusion) that misleading or deceptive conduct has been proven. On the face of it, therefore, the passage appears apposite. Mr Love relied upon the statement that the representor – in this case Brady – was subject to “an evidentiary onus”. The footnote to this passage in his Honour’s judgment shows that it is based on the judgment of Wilson J in Gould v Vaggelas (1985) 157 CLR 215, 238-9. Mr Love’s presentation seemed to equate the “evidentiary onus” referred to by Vickery AJA and Wilson J with the concept of “burden of proof”, such that it was for Brady to prove some motivation on the part of the plaintiffs other than reliance on misleading or deceptive conduct as explaining the failure to settle. Given that the person asserting a cause of action generally bears the onus of proving every element of that cause of action, and causation is an element of the cause of action for damages for misleading or deceptive conduct, this seems heterodox.
266In Gould v Vaggelas, a husband and wife who controlled a company which purchased a tourist resort guaranteed the company’s obligation under a purchase contract for the resort. The company defaulted and went into liquidation. The husband and wife were sued as guarantors, and counterclaimed for damages for deceit. The Court held that the ultimate onus of proving inducement in a claim for deceit rests upon the party alleging the deceit. Wilson J referred to dicta of Dixon J (in Potts v Miller (1940) 64 CLR 282, 296) and similar dicta by members of the Court in Holmes v Jones (1907) 4 CLR 1692, 1706, 1710, per O’Connor J and Isaacs J. Wilson J then said:
“There is no reason to doubt the correctness of these statements. They accord with sound principle, namely, that a plaintiff carries the burden of establishing every element of his cause of action. At the same time, one can readily understand why it is in cases of deceit that a tribunal whose duty it is to find the facts may require a defendant to make some answer to the case that is put against him. Such cases are of a kind where in the general experience of mankind the facts speak for themselves. Where a plaintiff shows that a defendant has made false statements to him intending thereby to induce him to enter into a contract and those statements are of such a nature as would be likely to provide such inducement and the plaintiff did in fact enter into that contract and thereby suffered damage and nothing more appears, common sense would demand the conclusion that the false representations played at least some part in inducing the plaintiff to enter into the contract. However, it is open to the defendant to obstruct the drawing of that natural inference of fact by showing that there were other relevant circumstances. Examples commonly given of such circumstances are that the plaintiff not only actually knew the true facts but knew them to be the truth or that the plaintiff either by his words or conduct disavowed any reliance on the fraudulent representations. It is entirely accurate to speak of an onus resting on a defendant to draw attention to the presence of circumstances such as those I have described in order to show that the inference of the fact of inducement which would ordinarily be drawn from the fraudulent making of a false statement calculated to induce a person to enter into a contract followed by entry into that contract should not in all the circumstances be drawn. But it is no more than an evidentiary onus — an obligation to point to the existence of circumstances which tend to rebut the inference which would ordinarily be drawn from the primary facts. When all the facts are in, the fact-finding tribunal must determine whether or not it is satisfied on the balance of probabilities that the misrepresentations in question contributed to the plaintiff's entry into the contract. The onus to show that they did is a condition precedent to relief and rests at all times on the plaintiff.” ((1985) 157 CLR 215, 238-9)

267As his Honour explains, the so-called “evidentiary burden” is merely to draw attention to facts providing an alternate explanation, and, with those facts before the Court, the onus, as his Honour says, “rests at all times on the plaintiff”; viz, in this case Ms Song and Ms Hu.
268In so far as Mr Love’s case seeks to impose a burden of proof in this regard on Brady, it must be rejected.
269The interpretation of events generally advocated by Brady was that late reliance, near midnight on the eve of scheduled settlement, upon the address issue, was a mere pretext, and the real reason for the plaintiffs’ failure to settle was either a lack of funds or repentance from the purchase because of the drop in value of the unit. The two considerations are not necessarily mutually exclusive. In a hypothetical case, a purchaser faced with settlement but embarrassed by lack of funds may be willing or motivated to take extraordinary measures to arrange funds, in the knowledge that the asset being purchased is worth more than is being paid for it. Conversely, a purchaser faced with settlement but embarrassed by a lack of funds may elect to default if he or she knows the asset being purchased is worth less than is being paid for it.
270In the present case, Mr Tennant relied on the printout from the PEXA system showing a deficiency in funds available to settle the purchase, the page being printed out as at the day of the planned settlement. Mr Tennant put to Ms Dai that this printout indicated that the plaintiffs were deficient in funds to settle on 21 April 2021. Her response is quoted at [110] above. I do not find it entirely intelligible.
271Mr Love said that the contract for the sale of apartment 3908, contrary to usual conveyancing practice, provided for the adjustment statement to be prepared by the vendor, Brady, rather than the purchaser, Ms Hu, or her nominee, her mother, Ms Song. (Special condition 42, CB 3718-3720) Mr Love said that, in the event, Brady was in default in having failed to provide a statement of adjustments. (Closing submissions, paragraphs 315-6) He said since no statement of adjustments had been prepared, it was “not possible to put a figure on what additional funds may have been required to complete settlement”. (Ibid, paragraph 218) He referred to Ms Dai’s evidence that she had sold one of her properties with settlement effected 12 February 2021 and stood ready to “bail out” Ms Song if she needed extra funds to complete the purchase of apartment 3908. (Ibid, paragraphs 322-3, T544) Mr Love said that Ms Dai had made her own funds available on 16 April 2021 and they could have been resorted to if needed. (CB 4424-4436) These latter documents were the ones introduced late and objected to by Mr Tennant. I ultimately ruled that they should be admitted. They show a property at 48 Windella Avenue, Kew East, in a marketing pamphlet sponsored by estate agent Nelson Alexander. (CB 4424-5)
272Court Book page4426 is an email from Ms Dai to National Australia Bank seeking a discharge of a registered mortgage, and stating that “The property” – presumably the Windella Avenue, Kew East property – “was sold by auction on 12 February 2020, and the agreed settlement date is 12 Feb 2021”.
273Court Book page 4427 is a heavily-redacted extract from an account held at Westpac Banking Corporation by a company Daiking Nominees Pty Ltd. The statement shows a credit of $460,881.68 with a descriptor indicating that it arose from a PEXA transaction, together with a deposit via the Fitzroy branch with the descriptor “48 Windella Avenue”, $103,731.50.
274The next page (CB 4428) appears to be a set of calculations in handwriting dated 19 April 2021 relative to settlement showing an amount payable, one infers, for apartment 3908, balance of $679,650, with a loan $580,000 – Song. This document would appear to be part of the purchase file for apartment 3908.
275Next, at pages 4430-4431, are documents identifying Ms Song, presumably required as part of the PEXA process, and a file note from ALAC relative to “verification”, referring to passport, driver’s licence and so forth at Court Book page 4432. Further verification material appears at pages 4433-4.
276Court Book page 4435 is a further statement page relative to the same account of Daiking Nominees Pty Ltd, showing the same credits and a balance as at 12 February 2021 of $564,682.99. Once again, this page is redacted by a process of masking during photocopying, rather than obliteration by dark writing as on the previous page. Page 4436 is the next page of the statement, showing a balance as at 21 May 2021 of $5,006.19. $360,000 is shown as having been withdrawn on that day, with the descriptor “Tfr Classic Plu payback”.
277Mr Tennant’s contention was that whilst these documents demonstrate an inflow of funds to the account of Daiking Nominees Pty Ltd, which one might infer is a company controlled by Ms Dai (though there was no evidence as to this), the inference would be based solely on the similarity of names. There was no evidence that these funds should be treated as available for the settlement. He said page 4436 seems to show these funds as having been largely used in a series of payments. In addition to the ones already referred to, on 16 April 2021 there was a payment to “Xiao-Xiao Kingham Xiao-Xiao Kingham” of $1,560.00, a mobile withdrawal “Tfr Classic Plu” of $300.00, and an online withdrawal “Bpay RACV - Mel Racv” of $218.00. Mr Tennant’s contention was that I should infer that these funds were committed to some other obligation comprised by the word “payback” and were not available to settle the apartment purchase. These documents could have been included in the original Court Book, and could have been explained by evidence from Ms Dai. He contended that the failure to do so must redound to the disadvantage of the plaintiffs.
278Mr Tennant also drew attention to the fact that according to Ms Dai the sale of the property which was to generate funds in support of Ms Song’s purchase obligations was made “around 10 December”, viz 2020. (T544, L23) This was inconsistent with the documents which appeared to pertain to a sale in February 2020, and no explanation of the inconsistency had been furnished.
279Like so much relative to financial transactions in the plaintiffs’ camp, obscurity and uncertainty reigns. The late and unusual circumstances in which the documents relative to the availability of funds were put before the Court, and the unavailability in light of that lateness of any explanation and verification of the purport of some of the descriptors, leads me to reject them as establishing that Ms Song had funds available to settle on 21 April 2021. The funds from Daiking Nominees had not been put into the PEXA system, and the reference to “payback” in the bank record tends to suggest they were not available.
280In the circumstances, and particularly having regard to the finding that as at September 2020 the plaintiffs knew that apartment 3908 had a Little Lonsdale Street address, I conclude that even if, contrary to my earlier conclusions, Brady had engaged in misleading or deceptive conduct relative to the sale of apartment 3908, it was not causative of loss or damage to the plaintiffs because of lack of reliance on that.
The rule in Flight v Booth
281Mr Love, referring to paragraph 40C of the plaintiffs’ Statement of Claim, said that since Brady exhibited:
(i)    an unwillingness, or an inability, to render substantial performance of the contract of sale;
(ii)    an intention no longer to be bound by the Contract; and/or
(iii)   an intention to fulfil the Contract only in a manner substantially inconsistent with the party’s obligations;
it thereby repudiated the contract. He said that the plaintiffs accepted the repudiation by a letter of 28 April 2021 from their solicitor, and thereby voided the contract.
282He said that the vendor, Brady, had purported to sell a property with the address 374-380 Lonsdale Street, Melbourne, and such property was not in fact available for transfer at the time of the scheduled settlement. He said this gave the plaintiffs a right of rescission in reliance on the rule in Flight v Booth (1834) ER 1087. He referred to Victorsen v Easy Living Holdings Pty Ltd [2019] NSWSC 1721 and Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1, 27-8, per Menzies J, and Batey v Gifford (1997) 42 NSWLR 710, 716, per Handley JA.
283In effect, Mr Love was saying that the apartment proffered for settlement was not in conformity with the description in the contract.
284Mr Tennant said that this matter was governed by a recent decision of the Supreme Court in Wollert Epping Developments Pty Ltd v Batten (2019) 60 VR 92.
285In Wollert, the defendants sold a parcel of farmland, but the purchasers found that a fence had been misaligned such that part of the land comprised in the relevant Certificate of Title was in the possession of the neighbours, rather than the vendors. Derham AsJ considered the application of the “rule in Flight v Booth”. He held that the encroachment did not, under that rule, entitle the purchaser to rescind. His Honour considered that what was being sold under the contract was the land comprised in the Certificate of Title. ((2019) 60 VR 92, 107 [53]) He said the property address was not, by reference to the particulars of sale, to be regarded as part of the description of the subject matter. (Ibid, [55])
286Consistently with his Honour’s approach in Wollert, I turn to the particulars of sale. The subject matter of the contract was described as the “land”, apartment 3908 on a proposed plan of subdivision. There was no departure from the subject matter identified in the contract and the one that was being offered for transfer in April 2021. The claimed right of rescission under the rule in Flight v Booth did not exist.
The Sale of Land Act
287The plaintiffs relied on a number of provisions of the Sale of Land Act 1962 (Vic). First, it was said that the vendor statement given under s32 of the Sale of Land Act was inaccurate, inadequate, and deficient, by “failing to disclose that the registered address for the residential apartment for stage 1 of the plan of subdivision ... may not be the address as stated 374-380 Lonsdale Street, Melbourne”. As I have previously said, the vendor statement speaks as at the date on which it was given, and was accurate as at that date. It did not make any assertions as to what the address would or would not be in the future. I reject this alleged ground of inadequacy. (Plaintiffs’ closing submissions, paragraphs 41-42)
288According to the plaintiffs, the taking of the extension fee or “second deposit” was in breach of s9AA of the Sale of Land Act 1962 (Vic), which requires that:
“the deposit moneys payable under the contract [must] not exceed per cent of the purchase price of the lot.” (Section 9AA(1)(b))

289Relevant to this argument is the provision in s9AA(6) that deposit moneys include any moneys which are part of the purchase price and are received by the vendor before the purchaser becomes entitled to possession. The argument on behalf of Brady is that the so-called second deposit was an extension fee expressed to be non-refundable. It was, however, to be counted against the balance of purchase price in the event that settlement proceeded. In those circumstances, I conclude that the “second deposit” was within the scope of the words “deposit moneys” in s9AA because it was to be counted as part of the purchase price. It would follow that the first extension agreement was, by force of s14 of the Sale of Land Act 1962 (Vic), “void”. This second deposit would therefore be recoverable by the plaintiffs, or perhaps the first plaintiff, as moneys had and received. The net effect of this entitlement will need to be considered in light of the overall fate of the plaintiffs’ claim and Brady’s counterclaim.
Section 126 of the Instruments Act 1958
290Section 126 of the Instruments Act 1958 (Vic) provides as follows:
“126Certain agreements to be in writing
(1)An action must not be brought to charge a person upon a special promise to answer for the debt, default or miscarriage of another person or upon a contract for the sale or other disposition of an interest in land unless the agreement on which the action is brought, or a memorandum or note of the agreement, is in writing signed by the person to be charged or by a person lawfully authorised in writing by that person to sign such an agreement, memorandum or note.
(2)It is declared that the requirements of subsection (1) may be met in accordance with the Electronic Transactions (Victoria) Act 2000.”

291Mr Love said that the “first extension agreement” was an agreement for the sale of land, and therefore was subject to the operation of s126. Since the agreement was not reduced to writing, it was unenforceable by virtue of s126.
292It is far from clear to me that Brady, either in defending itself against the plaintiffs’ claim or mounting its counterclaim, is bringing a proceeding so as to invoke the operation of s126. The extension agreement, according to its terms, was fully performed by Ms Song, and overtaken by events. It was said in oral argument that the counterclaim alleges that Ms Song or the two plaintiffs breached the first extension agreement. Given that the agreement, if valid according to its terms, is already effectively spent, this would seem to be neither here nor there. Moreover, since I have already found the first extension agreement void by virtue of the provisions of the Sale of Land Act 1962 (Vic), the operation or otherwise of s126 of the Instruments Act 1958 (Vic) relative to it is moot. I put s126 to one side.
Further claims under the Sale of Land Act
293Section 9AC of the Sale of Land Act 1962 (Vic) requires the giving of notice to a purchaser, under an off-the-plan purchase, of amendments to the plan within 14 days of the Registrar’s requiring the amendment or the vendor’s requesting it. The right to rescind under s9AC(2) is exercisable by a purchaser “within 14 days after being advised by the vendor under subsection (1) of an amendment”. This power in the circumstances does not seem to be exercisable, hence the plaintiffs relied upon the discretionary entitlement given to courts to order the repayment of a deposit under s49(2) of the Property Law Act 1958 (Vic).

294Aside from the issue of the “second deposit”, the plaintiffs’ claim has been unsuccessful, as will appear below. I conclude that the plaintiffs were in breach of contract in failing to complete the purchase. The original or first deposit therefore, in accordance with the terms of the contract, would be forfeitable. In those circumstances it would not be in accordance with the principles that guide the exercise of the discretion under s49(2) to order the repayment of the deposit: Simcevski v Dixon (No 2) (2017) 53 VR 357 [118]-[121].

Negligence
295Mr Love did not fully develop an argument in support of the cause of action in negligence pleaded on the plaintiffs’ behalf in negligence. In his closing submissions at paragraphs 451-463 he dealt with the question, “Was Brady under an obligation to warn purchasers as to the likely address of apartments?” [sic]. A successful claim in the tort of negligence would represent an award of damages based solely on pure economic loss. Subject to certain well-established exceptions, the law of negligence has generally set its face against finding duties of care and causes of action compensating for pure economic loss. A well-established exception to that rule is the cause of action for negligent misstatement, which, since the enactment of the Trade Practices Act 1974 (Cth) and subsequent legislation to similar effect, has been of minimal significance in Australia in light of the more expansive statutory cause of action for misleading or deceptive conduct.
296In Perre v Apand Pty Ltd (1999) 198 CLR 180, the High Court of Australia held that there was no firm rule excluding the possibility of a duty of care and an award of damages for negligent breach of duty resulting only in pure economic loss. The facts of the case were summarised by Gleeson CJ as follows:
“In broadest outline, they are as follows. In a rural locality in South Australia, a number of farmers grew potatoes, some for export to Western Australia. The respondent negligently introduced a form of disease, known as bacterial wilt, onto the land of one farmer. The Western Australian regulations imposed a prohibition on the importation into Western Australia, not only of potatoes grown on land known to be affected by the disease, but also of potatoes grown on land within a certain distance of affected land. The appellants were involved, in various ways, in potato growing on such land, and claimed to suffer financial loss. The issue is whether the respondent, whose conduct is, for the purposes of argument, assumed to have caused harm to each of the appellants, owed a duty of care to all or any of them. In the Federal Court at first instance, and in the Full Court, that question was answered in the negative as to all appellants.” (1999) 198 CLR 180, 191-2

297Referring to earlier authority in the form of Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529, his Honour noted that:
“there is no general rule that one person owes to another a duty to take care not to cause reasonably foreseeable financial harm. The consequences of such a rule would be intolerable.” (1999) 198 CLR 180, 192 [4]

298The Court nevertheless accepted that a duty of care existed in the circumstances already described. In his judgment, Gummow J referred to what he described as “the salient features” of the case, which led him and other members of the Court to recognise the existence of a duty of care based on those facts. He said the plaintiffs:
“had no way of appreciating the existence of the risk to which they were exposed by the conduct of the Apand experiment and no avenue to protect themselves against that risk. They thus stood in quite a different position from that of the financier in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords which had the power to deal from a position of strength in ordering its commercial relationship with the party to whom it provided financial accommodation.” (1999) 198 CLR 180, 259 [216]

299In the present case, Ms Song and Ms Hu were at liberty to contract or not to contract with Brady. Before committing themselves, they could have demanded further information or assurances, or perhaps sought to negotiate a further special condition in the contract. They were not vulnerable, therefore, in the same way as the plaintiffs in the Perre case. The claim for damages in negligence, therefore, fails.

The Counterclaim
300In light of the substantial failure of the plaintiffs’ claims, I now turn to consider Brady’s counterclaim. The plaintiffs say that the Notice of Default and Rescission was invalid for a number of reasons, including a failure to take account of the “second deposit”. Mr Tennant contended (closing submissions, paragraph 126):
“Even if the Default Notice was in some way deficient, inaccurate and inadequate (which is disputed), by persistently and continually failing to pay the balance of the purchase price and settle the purchase of the Property [the plaintiffs] repudiated the Contract of Sale. The Plaintiffs’ repudiation was accepted by Brady Lonsdale on 11 June 2021.”
301In closing submissions, I asked Mr Tennant if repudiation of contract by the plaintiffs was pleaded. He assured me that it was. (T1236) Mr Love did not demur. Upon analysis, however, I was unable to find the plea of repudiation in the counterclaim. In my view, the evidence clearly makes out repudiation on the plaintiffs’ part, and despite the very late stage that has been reached, given that these matters have been the subject of extensive examination and the facts have been gone over in a very lengthy trial, it would, on the face of it, create no injustice for a late amendment to the counterclaim to be made alleging repudiation.
302I propose analysing Brady’s claim for damages upon the assumption that an amendment to the pleading has been or will be allowed, but subject to the opportunity of counsel for the plaintiffs to contend otherwise. Mr Tennant referred to a decision of Nettle J, then a judge of the Trial Division of the Supreme Court in Burke and Riversdale Road Pty Ltd v Gemini Investments Pty Ltd [2003] VSC 33, where his Honour found a contract brought to an end by repudiation despite the fact that a defective or arguably defective default notice had been served. This approach was in conformity with early authorities including a decision of the Full Court, Nund v McWaters [1982] VR 575.
303Accordingly, Brady’s counterclaim should succeed.
Loss and Damage
304At paragraph 129 of his outline of closing submissions, Mr Tennant said that his client claimed the following heads of damage:
(a)   diminution between the contract price and the value of the property;
(b)   resale costs;
(c)   holding costs; and
(d)   interest costs.
305In accordance with valuation evidence given by Mr Brown, the property, which had a purchase price of $849,600, was as at 11 June 2021 valued at $730,000. This represents a loss in value of some $119,600 which, either in terms of the default provisions of the contract, if they apply, or perhaps more appropriately, the general law damages applicable in the case of acceptance and repudiation, would be recoverable. There was also a claim for resale costs constituted by agent’s commission, $64,240; an incentive bonus of $16,500; estimated advertising costs, $3,650; and conveyancing costs, $1,650, making a total of $86,040. The effect of the evidence of Messrs Wang and Pethica is the very high commission rates seemed to have been paid relative to the sale of these CBD units. In the absence of any attack on these figures, I propose adopting them, likewise holding costs constituted by land tax, council rates, water rates, owners’ corporation, insurance, fees and so forth of $19,538.28. Plainly, those holding costs should not have been incurred and settlement proceeded, as originally scheduled, in September 2020.
306There was also a claim for interest under the default provisions in the contract until the termination of the contract on 21 June 2021. Without going into too much detail, in the famous case of McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 in what proved to be a seminal analysis, Dixon J, as he then was, held that upon termination of a contract prospectively, as distinct from its rescission ab initio, rights accrued unconditionally prior to termination remain enforceable. Those which have, however, accrued only conditionally do not survive. In McDonald’s case, the contract terminated, or “rescinded” in the loose sense, was a terms Contract of Sale. The High Court held that the instalments of purchase price overdue at the time of termination were payable only conditionally upon a conveyance of the land ultimately being made. Once the contract was terminated, no such conveyance would occur and therefore the right was not regarded as accrued. I dealt with this matter in some detail in my decision of Bill v Clarke [2015] VCC 1721. According to that decision, no such award of interest as is claimed here should be made. If the principal on which it was calculated was not payable by reason of the termination of the contract, how could the interest be? This reasoning did not commend itself to Judge Woodward in Bensons Property Group Pty Ltd v Manderson and Tan (No 3) [2021] VCC 326. Mr Tennant referred to the decision of Ginnane J in Ironbridge Holdings Pty Ltd (administrators appointed) (receivers and managers appointed) v O’Grady [2020] VSC 344. At 374, in analogous circumstances, his Honour held that Mrs O’Grady was entitled “to recover interest as an accrued debt. She does not have to establish damages. Debt is a separate cause of action.” The claim, which was unsuccessful in McDonald v Dennys Lascelles Ltd, was a claim in debt; namely, a claim for the overdue instalment of the purchase price. I remain respectfully unpersuaded that, as a matter of principle, the award of interest sought by the plaintiff should be made. However, since other judges of this Court and a judge of the Trial Division of the Supreme Court have taken the opposite approach, I propose following their lead and awarding the interest, despite the view which I continue to hold that no such award ought be made.
307Brady seeks an award of interest from the commencement of the proceeding until the date of judgment under s60 of the Supreme Court Act 1986 (Vic). There seems to be no reason why such an award ought not be made. The period from the termination of the contract, when its default provisions ceased to apply prospectively and the commencement of the proceeding were problematic, Brady sought damages at the rate of 5 percent per annum reflective of its holding costs under the relevant mortgage. (T1232) I asked which head of contractual damages this was to be regarded as being under, namely, general damages representing the ordinary consequences of the breach or special damages representing additional matters which were shown to have been in the joint contemplation of the parties. Mr Tennant did not give a definitive answer. With some hesitation, I conclude that an accrual of interest under financing arrangements must be seen as one of the ordinary consequences of the delay of settlement or the repudiation of an “off the plan” unit purchase. Damages relative to such a rate of interest should therefore be recoverable as general damages under contractual principles. 5 percent is not such a rate of interest as to be beyond what might be regarded as the ordinary consequences of a default. There should be judgment for Brady on its counterclaim for all these sums of money.
308Mr Tennant, in his calculations, rightly allowed a credit in favour of the plaintiffs for the moneys held in trust by his instructors, the defendant’s solicitors. This credit extended to the illegal “second deposit”. Accordingly, the entitlement of the plaintiffs to recover this “second deposit” by virtue of the provisions of the Sale of Land Act 1962 (Vic) does not affect the net outcome of the proceeding.

Costs
309I have not heard any argument on the question of costs and so I will reserve them.

Relief
310I will direct the parties within 14 days to bring in short minutes to give effect to these reasons.

[2023] VCC 239

24 February 2023