Souter v Condor Developments Pty Ltd - [2011] WADC 212

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SOUTER -v- CONDOR DEVELOPMENTS PTY LTD [2011] WADC 212

CORAM: O'NEAL DCJ

HEARD: 16-18 & 26 MAY 2011

DELIVERED : 30 NOVEMBER 2011

FILE NO/S: CIV 891 of 2010

BETWEEN: CALLAN GEORGE SOUTER
Plaintiff
AND
CONDOR DEVELOPMENTS PTY LTD
Defendant

Catchwords:

Contract for the sale of land - Breach - Damages - Turns on own facts

Legislation:

Trade Practices Act 1974 (Cth)
Strata Titles Act 1966
Strata Titles Act 1985

Result:

For the plaintiff in part with damages assessed

Representation:

Counsel:

Plaintiff: Mr D H Solomon
Defendant: Mr D K Barker

Solicitors:

Plaintiff: Solomon Brothers
Defendant: Chalmers Legal Studio

Case(s) referred to in judgment(s):

Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
Chicco v Corporation of the City of Woodville (1990) A Tort Rep 81‑028
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
Joliffe v Baker (1883) 11 QBD 255
King v Poggioli (1923) 32 CLR 222
Lawrence v Cassel [1930] 2 KB 83
Palmer v Johnson (1884) 13 QBD 351
Radford v de Froberville [(1977] 1 WLR 1262
Re Wilsons & Stevens Contract [1894] 3 Ch 546
Robinson v Harman (1848) 1 Exch 850; (1848) 154 ER 363
Simply Irresistible Pty Ltd v Cauper [2010] VSC 601
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272
Willshee v Westcourt Ltd [2009] WASCA 87

O'NEAL DCJ:

Introduction

On 7 October 2005, the plaintiff entered into an agreement with the defendant to purchase apartment number 151 in a building called 'Condor Tower'. The plaintiff's purchase was effectively 'off the plans', the defendant then being engaged in a project to refurbish an existing building. The terms of the agreement are contained in an offer and acceptance form with conditions drafted by the defendant's solicitors. The plaintiff agreed to pay a purchase price of $1.75 million and a deposit of $100,000.
Because of delays in the construction of Condor Tower, the defendant was not ready to proceed to settlement until 30 July 2009.
The plaintiff's case is that apartment 151 as built and provided at settlement did not correspond in some respects with express and implied terms of the sale contract and with representations said to have been made to him. The plaintiff sues for damages at common law and also seeks remedies pursuant to the provisions of the Trade Practices Act 1974 (Cth) (TPA).

Background

In 2005, the plaintiff was considering the purchase of an apartment. The plaintiff's then partner, Janine Thomas (in this case the term referring not to any business affiliation but rather a personal one falling short of a de facto marriage), was a registered real estate sales representative. The plaintiff 'understood' from what Ms Thomas had told him that she was a partner (in this case referring to a business affiliation) of a man named Wayne Briggs.
Condor Tower began life as a high rise office building. In 2004, the defendant was in the process of redeveloping and refurbishing the tower by converting it to a predominantly residential strata titled tower.
As par 10 of the further amended statement of claim sets out, Ms Thomas was employed by a licensed real estate agent named Wayne Briggs; in fact by his company, trading under the name 'Wayne Briggs Project Marketing'. In February 2004, the defendant had engaged WBPM as the exclusive selling agents for Condor Tower.
The plaintiff in his evidence described himself as an 'oil field consultant manager'. He said that in the course of his duties he dealt with contracts of various kinds. These as it turned out were mainly service contracts for the provision of personnel and equipment to the oil and gas industry 'under Australian law and international law'. The plaintiff said that he was involved in contract administration and dispute resolution. The contracts ranged in value from $3,000 up to $30,000,000.
The plaintiff's evidence was that when he first considered the purchase of an apartment Ms Thomas showed him some penthouses in a project called 'Manhattan Towers' which she was selling. Ms Thomas, he said, also told him that she was also a sales agent for Condor Tower. The plaintiff said that after looking at the Manhattan Towers project Ms Thomas showed him some material with respect to Condor Tower. This included brochures and plans that were tendered into evidence as exhibits 1, 14 and 16. He also had the opportunity to look at an architect's model of the proposed redevelopment of Condor Tower. The model was not in evidence.
The plaintiff said that when he expressed an interest in buying an apartment Ms Thomas recommended Condor Tower over Manhattan Towers.
The plaintiff said that as to Condor Tower,
she did inform me that it was probably a far better investment proposition because of its location, the fact that there is heritage land in front of the building, they – they wouldn't be losing the view of the river; Kings Park especially. Then she – informed me that the two sub‑penthouses, as they are actually known, penthouses in the – project with the Sky Home being on top, that both the penthouses were actually for sale and I may consider purchasing one of those … (ts 64).
In the course of his cross‑examination the plaintiff said that 'Very early on in the discussions', Ms Thomas 'inquired about the joint purchase on a flip basis, to make some money, but she backed out before a decision was actually made to even purchase the property' [meaning apartment 151]. With respect to this idea that they jointly purchase apartment 151 he said 'probably within the first week of even discussing purchasing the property, it was dismissed. Ms Thomas said that she wasn't in a position to make any further investments …' (ts 171).
I accept that there was a conversation along those lines. Ms Thomas recalled that she was working seven days a week on the display suite of Condor Tower. She agreed that given their relationship the plaintiff might well have popped in to visit her there.
Ms Thomas said that the plaintiff approached her after their relationship ended and told her he was interested in purchasing apartment 151. While she did not recall any serious interest on the plaintiff's part prior to him saying that he wanted to make an offer on apartment 151, Ms Thomas said that while their relationship was on foot,
We loosely talked about buying the condo penthouse because we knew it was just beautiful and it was a very unique product, it still is a unique product, but it was more of a loose jovial talk, 'maybe we should go halves in it', it wasn't serious … We weren't together long enough to be investing in a property like that, so it was just a thought. I suppose he knew what I was selling and he knew how enthusiastic I was about the Condor Tower (ts 247).
The plaintiff was given a copy of the form of agreement that he would have to enter into if he wished to purchase one of the apartments at Condor Tower. I am satisfied that that probably occurred after the plaintiff advised Ms Thomas that he wanted to purchase apartment 151 for himself.
The agreement, in addition to a one page 'Contract for Sale of Strata Titled Property by Offer and Acceptance' that I will refer to later, consisted of a document of 35 pages entitled 'Conditions' plus annexures. The annexures were the 'Simplified Plans & General Specifications', 'Proposed Strata Plan', 'Management Statement', 'Strata Company Management Agreement', and 'Notice of Exemption'. I will refer to these documents collectively as the Contract.
The Conditions included the following terms relevant to the issues raised in this action:
1.THESE CONDITIONS
1.1Conditions
1.1.1These are the Conditions referred to in the Offer and Acceptance document.
1.1.2These Conditions are part of the Agreement between us and you.
…
1.2Defined Words
In this Agreement certain words and phrases have special meanings. Some of these words and phrases are set out in the clause entitled 'Definitions' and will have the meaning appearing next to them unless the contrary intention appears.
Other words and phrases are defined in other clauses of this Agreement in which case they will have those meanings for the purpose of the clause in which they appear and throughout this Agreement.
…
3.CONSTRUCTION OF CONDOR TOWER
3.1Construction
3.1.1At the time you enter into this Agreement the Apartment may not have been constructed. We intend to procure that our builder constructs Condor Tower as soon as possible after we obtain all of the Approvals.
3.1.2We will obtain all of the Approvals at our cost prior to commencing the development of Condor Tower.
3.2Development
3.2.1In this clause and throughout the Agreement:
'Completion' means the date when Condor Tower is finally completed; and
'Practical Completion' means the date when Condor Tower is so complete apart from minor defects as to allow occupation.
3.2.2Subject to our prior approval of the Planning Application and the grant of the Building Licence we shall proceed with the construction of Condor Tower on the Land in accordance with the Planning Application as soon as practicable after the date of issue of the Building Licence. We will endeavour to cause Practical Completion of Condor Tower on the Land as soon as possible and in accordance with the approved Planning Application and the Building Licence and completed:
3.2.2.1with all proper care, skill and diligence;
3.2.2.2in accordance with best industry practice;
3.2.2.3in compliance with all applicable legislation;
3.2.2.4in a proper and workmanlike manner; and
3.2.2.5using materials which are in good condition, of high quality and suitable for the purpose for which they are intended.
3.2.3We must cause full Completion of Condor Tower to be effected within 3 months from Practical Completion and in accordance with the approved Planning Application and the Building Licence.
…
3.4Simplified Plans
3.4.1For your ease of reference the Simplified Plans and General Specifications for Condor Tower are annexed hereto and marked 'A' and 'B' respectively;
3.4.2A copy of the Detailed Plans are available for inspection by you at the office of our selling agent during normal business hours;
3.4.3You acknowledge having been given the opportunity of inspecting the Detailed Plans before entering into this Agreement. You are deemed to be fully aware of the exact nature, extent and details of the Detailed Plans whether or not you have inspected them.
3.4.4If there is any inconsistency between the Simplified Plans and General Specifications and the Detailed Plans then the Detailed Plans shall prevail.
3.5Variations By us
3.5.1It may be necessary for us to make some variation to the Detailed Plans and the General Specifications after you enter into this Agreement if:
3.5.1.1a relevant authority imposes conditions on us which requires us to do so; or
3.5.1.2it becomes necessary by reason of the requirements or the practical methods of construction either by (without limitation) the dictates of good building practice or the availability of materials; or
3.5.1.3we consider it will enhance Condor Tower, or the Apartment; or
3.5.1.4some matter arises which we could not have reasonably foreseen; or
3.5.1.5the cost of materials or products described in the Detailed Plans or General Specifications has risen so that it is reasonable for us to substitute them with similar materials or products.
3.5.2If we make such a variation then we will ensure that no variation will materially alter or affect the use and enjoyment of the Apartment by you or substantially diminish its value.
3.5.3So long as we ensure that our builder constructs Condor Tower substantially in accordance with the Detailed Plans and the General Specifications with such variations permitted by this clause then we shall have fulfilled our obligations to you.
3.5.4No variations to the Detailed Plans, the General Specifications or of Condor Tower will invalidate this agreement or give you any claim for a reduction of the purchase price or claim for compensation or the right to delay settlement.
3.5.5You shall not be entitled to make any objection requisition or claim for reduction of the purchase price, by reason of any change to the Strata Plan ultimately registered by us pursuant to a variation permitted by this clause.
3.5.6We shall not be obliged to enter into any supplementary agreement with you if we vary the Detailed Plans or the General Specifications in any way whatsoever.
3.5.7In the event of any variation to the Detailed Plans, the General Specifications of Condor Tower being made in accordance with this Agreement, the Apartment as described in the Offer and Acceptance shall be subject to such variation.
…
3.7Inspection
3.7.1Subject to the next sub-clause:
3.7.1.1you are entitled to inspect the Apartment; and
3.7.1.2we must grant access to the Apartment to enable you to inspect the Apartment;
on one occasion within 5 business days before the Settlement Date.
…
3.7.5After inspection you may notify us of any minor deficiencies in the construction of the Apartment (but not deficiencies in respect of any variation approved pursuant to the clause entitled 'Variations By You') or the common property comprised in the Strata Plan. Any deficiency in the construction of the Apartment is not materially affected and the local authority has issued a certificate permitting occupation.
3.7.6We will rectify those deficiencies which we are obliged to rectify within a reasonable time before or after the Settlement Date. You will not delay settlement by reason only that we may not have by the Settlement Date rectified any or all of the minor deficiencies.
3.7.7You will not delay settlement or make any claim for reduction of the purchase price or compensation or cancel this Agreement by reason of such minor deficiencies in the construction of the Apartment.
…
4.PAYMENT OF THE PURCHASE PRICE
…
4.4Balance of Purchase Price
You shall pay the balance of the purchase price to us on the Settlement Date.
5.STRATA PLAN
5.1Preparation of Strata Plan
Upon completion of the construction of Condor Tower we will prepare the Strata Plan so that it complies with the Strata Titles Act 1985 and is otherwise in accordance with this Agreement.
…
6.SETTLEMENT
…
6.2Settlement Date
Settlement will take place:
6.2.1five (5) business days after the date that the Duplicate Certificate of Title for the apartment has been issued from the DOLI; or
6.2.2the date of settlement referred to in the Offer and Acceptance,
whichever is the later.
…
6.9Merger
6.9.1On settlement the clause entitled 'Construction of Condor Tower' and 'Quality of Construction' shall merge and be extinguished;
6.9.2No collateral agreement or warranty shall be deemed to apply in respect of the clauses entitled 'Construction of Condor Tower' and 'Quality of Construction' after settlement and all our obligations, if any, to you in respect of the repair of defects to your Apartment or Condor Tower shall be extinguished.
…
7.TITLE
…
7.2No Objection or Requisitions
7.2.1No objection shall be taken requisition made or compensation claimed by reason that:
…
7.2.1.2variations to the Detailed Plans and General Specifications permitted by the clause entitled 'Variations By Us';
7.2.1.3variations to the unit entitlement allocated to the Apartment;
…
7.2.1.6the alteration in the size of the Apartment from that shown on the proposed Strata Plan so long as it does not differ in area by 5% more or 5% less than the area shown on the Strata Plan.
…
11.DEFAULT
…
11.5Your Rights on Default
If we are in default in performing or observing our obligation to complete settlement or fail to comply with any of the other provisions of this Agreement which thereby prevents us from completing settlement under this Agreement and we fail to remedy the breach or default within the relevant period after service of a default notice or if we repudiate this Agreement, then you, without further notice to us shall be entitled to exercise one or other of the following remedies that you shall think fit:
11.5.1affirm this Agreement and sue us for specific performance of this Agreement and damages for breach in addition to or in lieu of specific performance; or
11.5.2terminate this Agreement, and recover the deposit and all interest (if any) thereon less any deduction under the clause entitled 'The Deposit';
…
12.GENERAL PROVISIONS
12.1Entire Agreement
12.1.1This Agreement constitutes the entire agreement between us.
12.1.2There are no prior or other agreements which shall have any effect on this Agreement nor shall any correspondence or documents which may have passed between us before execution have any effect whatsoever on this Agreement.
12.2Acknowledgements
You acknowledge that in purchasing the Apartment and in entering into this Agreement you have:-
12.2.1not relied upon any statement representation or warranty by us or our selling agent and our and their respective servants or agents (whether in writing or otherwise) other than as contained in this Agreement; and
12.2.2relied solely upon your own skill and judgment;
12.2.3thoroughly read and understood this Agreement;
12.2.4had the opportunity to produce this Agreement to professional advisors for the purpose of receiving independent legal and/or financial advice;
12.2.5been advised that we are not the builder of Condor Tower;
…
15.DEFINITIONS
In these Conditions:
15.1The following words have the following meanings:
'Approvals' means all the approvals required pursuant to the Strata Titles Act 1985 and all other approvals of any local or other authority which may be necessary to enable us to commence and carry out the development of Condor Tower;
…
'General Specifications' means the general specifications for the fitting out of Condor Tower and the Apartment annexed hereto and marked 'B'.
…
'Strata Plan' means the proposed strata plan annexed hereto marked 'C'.
'Supplementary Documents' means:
(a)the Simplified Plans annexed hereto marked 'A';
(b)the General Specifications annexed hereto and marked 'B';
(c)proposed Strata Plan annexed hereto marked 'C';
(d)the Management Statement annexed hereto and marked 'D';
(e)the Strata Management Agreement annexed hereto and marked 'E';
(f)the Notice of Exemption annexed hereto and marked 'F';
(g)the Budget;
(h)the Disclosure Statement (Form 28); and
(i)the Buying and Selling a Strata Titled Apartment (Form 29).
'the Apartment' and 'the Property' means the property intended to be sold by us to you and described in the Schedule to the Offer and Acceptance.
'the Detailed Plans' means the detailed plans commissioned by us and in respect of which a building licence has been issued and pursuant to which the Apartment and Condor Tower will be built;
…
'the Simplified Plans' means the simplified plans comprising the initial design drawings prepared by our Architect and which are annexed hereto and marked 'A';
…
The drafting of this document has been the subject of judicial criticism by the Court of Appeal. Although that criticism did not directly relate to an issue before me I was taken to it (ts 5, 6, 31) by counsel for the plaintiff in his opening. One sentence in the plaintiff's submissions in reply suggested that these prior general criticisms about the standard of drafting of the Conditions make 'application of the contra proferentem rule ... appropriate.'

Nothing in the four lever arch volumes of authorities submitted on behalf of the plaintiff was cited in support of any such principle. Given that lay people such as the plaintiff were dealing with a lengthy standard form commercial agreement prepared specifically for the defendant this is in my view a case where a construction contra proferentem is appropriate. The general competence or otherwise of the drafting of an agreement does not however add anything in my view to the ordinary application of that rule of construction.
Annexure A shows the proposed floor plan layout for each of the 29 levels. As the Simplified Plans which comprise annexure 'A' show, level 24 consisted of two apartments or 'sub-penthouses'. One of these was the one for which the plaintiff contracted, number 151. The other is apartment number 150, still owned by the defendant. For apartment 151 four bedrooms are visible, three of which have ensuite bathrooms. The fourth appears to have a closet/storage area.
A one page brochure (exhibit 1) shows the layouts of apartments 151 and 150. The plaintiff saw this prior to signing the sales contract. Each is described as having an area of 235 sqm. The layout shows a large balcony on level 24 stretching the width of the front of the building across both apartments. There is, as might sensibly be anticipated, a dividing wall separating the apartments and a wall or partition dividing the balcony.
Similarly, the Simplified Plans include floor plans only, not elevations. The partition dividing the balcony on level 24 is present as an element. While it is not possible to determine what the height of the partition was to be, the width of the partition as an element appears wider than the common wall between the apartments.
The General Specifications contained in annexure B to the Contract set out the kinds of finishes that were to be used and details of fit outs. The specifications for 'residential lots', 'office lots', and for 'retail lots' are listed separately.
With respect to residential lots the 'Apartment Interiors' were to be provided with 'quality carpets to the bedrooms and bamboo floors to the living areas'. With respect to 'ensuites, bathrooms and laundries', polished floor tiles were to be provided, 'as per the interior designer's colour selection'. Wall tiles in these rooms were to be provided to a height of 1,000 mm except in showers where they were to extend to a height of 2,000 mm. As for the floor tiles, these tiles were to be provided 'as per the interior designer's colour selection'.
Under the heading 'Electrical' the specification says this:
Smoke Detectors:    Included
Fire Alarms:           Included
Light Fittings:         Included
T.V. Point:             Included
Pay T.V. Point:        Included
Power Outlet:         Included
Telephone Points:     2 points provided
Exhaust Fans:        provided to bathrooms
Provision for:         Air-conditioning
For 'retail lots only' the specifications say:
The following would be provided by the developer for each retail strata title lot - …
2.8Reverse cycle air-conditioning;
With respect to 'office lots', the specification says:
The following would be provided by the developer for each office strata titled lot - …
3.10Reverse cycle air-conditioning.
Annexure 'C' is the Proposed Strata Plan. This document contains 18 sheets setting out the plan proposed to be lodged for registration. The document was prepared by Peter Driscoll & Associates Pty Ltd Consulting Surveyors, but is marked 'provisional copy only subject to survey'. Two pages are of interest. The first is sheet 4 of 18 sheets. That shows two levels of parking being the ground floor and the first undercroft. On the ground floor, an area indicated as 55 sqm is marked as 'Pt 151'. This particular section of parking has been marked out by circling it, and the circled area has then been initialled by buyer and seller, suggesting that the area has been allocated to the purchaser of lot 151. The plaintiff said he initialled that page because 'I wanted it confirmed in my contract that that was the parking area I was going to be receiving' (ts 72).
At a number of points on the ground floor plan small squares are drawn that impinge upon the car bays. Their location and regularity suggests fairly plainly that they are structural columns. The parking area marked Pt 151 shows two such columns towards its eastern side. From this very small scale drawing it appears that something in the order of one fifth or slightly less of the total area marked as 'Pt 151' is to the east of the two columns. The placement of the columns in the parking area and relative to the plaintiff's garage is shown more clearly in Annexure A to which I will refer later.
Sheet 17 shows, among other things, the 24th floor plan. On this 'Pt 151' is shown as 235 sqm. Underneath that notation, in parentheses, is the further notation '353 m²'. The front balcony area is shown as '53 m²' and the rear balcony as '10 m²'. When the 55 sqm of parking on the ground floor is added to the areas shown for the areas of Pt 151 shown on the 24th floor the result is a total of 353 sqm.
'Pt 150' on the 24th floor plan is the mirror image of 'Pt 151' except that the total area shown in parentheses is 340 sqm. Otherwise, the figures for the areas of the apartment and the front and rear balconies are identical.
Annexure 'D' is the Management Statement which includes among other things the bylaws that will apply to the strata development. The bylaws include a specific article, number 20, that deals with 'individual air-conditioning systems'. The bylaw provides, among other things:
No proprietor shall affix any air-conditioning system without the prior written approval of the Council which approval can be withheld, if in the sole opinion of the Council, the proposed air‑conditioning system is or is likely to be:
20.1.1so noisy as to cause a disturbance to adjoining proprietors; or
20.1.2of such a size and colour as not to be in harmony with the external appearance of the Scheme.
The Detailed Plans, defined in cl 15.1 as plans commissioned by the defendant 'and in respect of which a building licence has been issued and pursuant to which the Apartment in Condor Tower will be built', were never seen by the plaintiff, according to his evidence. There is some question as to what he might have been shown had he asked to see the plans on 5 October 2005, the date of his first offer. Exhibit 4 was a detailed plan of basement level 1 issued on 18 March 2005 'for building licence'. That document actually bears a City of Perth stamp dated 15 November 2005 that says 'Date of Licence approval'. This drawing more accurately shows the dimensions of the plaintiff's 'lock up garage'. The plaintiff's garage area is shown as encompassing all of the area within four of the structural columns and a small area extending to the east of the columns. That particular side and the back of the plaintiff's garage are secured by chain mesh fencing. The back of the garage adjoins several storage areas.
Exhibit 6 is another detailed plan of the same area, basement level 1. It bears the same drawing number, WD‑P‑02. However, while exhibit 4 is revision 'A', exhibit 6 is revision 'G'. The drawing registry shows that revision 'F' was made on 23 September 2005 with respect to a 'slab penetration added to lock up garage'. Revision 'G' was made on 6 October 2005 when it was 'reissued for building licence'. Like exhibit 4, exhibit 6 also bears a stamp 'City of Perth – 15 November 2005 – Date of Licence approval'. The word 'superseded' is handwritten on exhibit 4. Exhibit 6 has another stamp, 'City of Perth approved plan – building lic no 050109'. This stamp appears to bear the signature of the senior building officer.
Exhibit 6 shows that the plaintiff's lock up garage has now shrunk so that it is contained within the four structural pillars. The east side of the garage consists of a chain link fence down the centre line between the two pillars north and south. The north side of the garage, shown as chain link fence in exhibit 4, appears to have been changed to a fire rated wall enclosing one side of what is now a 'fire isolated passage'. It does not appear that the depth of the plaintiff's garage area has been reduced by this change. The storage areas to the north of the garage however have been reduced in size and number to accommodate the new passage.
Exhibit 3 is the Detailed Plan layout for the 24th floor that was prepared and issued to obtain a building licence. It was created on 18 March 2005. Inconsistently with the General Specification, this document shows the floors in the ensuite bathrooms for bedrooms 1 to 3 and in the living areas other than the bedrooms as 'stone'. It also shows quite a wide partition between the adjoining balconies of apartments 150 and 151. The partition has been drawn as half again as wide as the party wall between the apartments. Although a key is included with the drawing it is not possible for me, unassisted, to apply it to determine the nature of the wall or whether there were more detailed drawings submitted for the building licence. No evidence was lead by either party in this regard.
Exhibit 5 is a plan drawing of north and south elevations of the tower, also prepared on 18 March 2005 and issued for the purposes of obtaining a building licence. This drawing also bears a 'City of Perth approved plan' stamp and the building licence number. For that reason it is a Detailed Plan as defined in the Contract. The drawing of the southern elevation shows what appear to be floor to ceiling height partitions on the adjoining balconies between apartments up the centre of the building to the 23rd floor. The partition shown on the balcony between apartment 150 and 151 appears to be to a height just slightly below the lintels of doorways. The width of this element of the drawing in elevation appears to match the width of the partition shown in the floor plan exhibit 3.
The 'Contract for Sale of Strata Titled Property by Offer and Acceptance' is the document actually signed by the plaintiff and executed by the defendant. It is a standard form document with blank spaces intended to be completed by the parties. When I say that the document is a 'standard form' I mean that, like the Conditions, it was created by the defendant's legal advisors for the defendant's purposes in developing and selling Condor Tower.
When the plaintiff submitted his first offer, the terms of this form were completed by Ms Thomas on his behalf. At the top of the document in the space in the form provided for the identification of 'the buyer', the plaintiff's name and address and contact details have been added. The printed terms of the form provide that the buyer offers to purchase 'the proposed strata titled property described in the Schedule including all improvements with vacant possession unless otherwise provided in the Conditions at the price and on the other terms set out in the Schedule, the Conditions and the Supplementary Documents'. Following the identification of the buyer and the buyer's offer to purchase there follows the Schedule of five clauses.
In item 1 of the Schedule the number '151' has been written in to identify the apartment number of the Condor Tower '… more particularly described in the Conditions'. The original posted asking price for each of apartments 151 and 150 was $1.95 million. The purchase price first offered by the plaintiff is shown as $1,700,000. That figure was crossed out and initialled and a new figure counter-offered by the vendor: $1,850,000. That number was in turn struck out and the final purchase price of $1,750,000 added and initialled.
A similar negotiation is shown in the section for manner of payment, where the figure for the deposit to be paid is proposed and struck out until the final figure of $100,000 is arrived at.
In the subclause for 'Settlement Date' (cl 1(iv)) Ms Thomas wrote in 'as per condition 6.2.1'.
Item 3 of the Schedule says 'the Conditions apply at the sale insofar as they are not varied by the Special Conditions (if any) appearing in item 5 of this Schedule'. At item 5 these Special Conditions have been written in:
(i)the seller confirms that the garaging is fully enclosed with remote control entry for exclusive use;
(ii)the seller ensures balcony drains have correct flow at lowest point and is [sic] flood tested prior to settlement;
Those special conditions as proposed by the plaintiff as Buyer have been initialled by the defendant as Seller.
Prior to making his offer to purchase, the plaintiff said that he had 'quite a detailed look at the document', referring to the Contract. He said that he had significant and quite detailed discussions with Ms Thomas 'mainly because there was a lot of inconsistencies and ambiguities in the document that I wanted clarified'.
In the course of the plaintiff's discussions with Ms Thomas, the plaintiff said he raised concerns that he had with about 20 issues. These included the exact nature of the parking, whether it was lock-up parking, or simply car bays.
The plaintiff went on to say 'what I did try and clarify with her was with regards to the storage based on previous experience with residentials' (ts 69). He said that he particularly asked Ms Thomas about the allocation of a storage bay, having seen them in the drawings on the Contract; presumably Annexure A. He said that he questioned Ms Thomas several times about 'confirming that the storage was included' and he said that she confirmed that it was 'but she wasn't happy with me putting a special note'.
He said after Ms Thomas had told him that the storage was included 'I went through the contract a little bit more and then came back to the storage and questioned the confirmation that it would actually be included in my contract, and did I need to add it into the special notes?'. He said that Ms Thomas 'confirmed' that it was included and she said, 'you're buying a penthouse, of course you're getting it'. He said that she told him that he 'shouldn't make such a big deal, that it didn't need to be included as a special note. Putting too many special notes … would go against me and that the developer may feel that it's too hard work and choose not to sell on the property'. He said that Ms Thomas told him to 'keep special clauses to a bare minimum and only where the inconsistencies in the document ensured that I stated my case': (ts 70). He said that 'Ms Thomas could not confirm which of the storage units I would be getting, which there were a number of them shown on the ground level parking behind the dividing wall of my parking bay … but I was informed that my storage would be one of those'.
The plaintiff also said that having read the documents, 'I wanted to confirm, because of the wording in the document, that AC [air‑conditioning] was included and I was given that assurance by Ms Thomas that it was'. The plaintiff said that the topic of air‑conditioning first came up, 'as I'd gone through the detail over the contract, there is a section with regards to fit out and there was mention of air-conditioning. I questioned that, because it was quite vague. Ms Thomas informed me that it – it is included. I did ask her if I needed to put it in as a special clause. Again I was told that I was being too fussy and that it would not be in my interest to add too many special clauses into the contract. But again I was reassured by Ms Thomas that I was buying the penthouse, so of course I'm going to get air-conditioning. And … with those assurances, my belief was that I would be receiving both storage and air‑conditioning as part of the settlement for my building' (ts 70, 71).
On 7 October 2005 the defendant by its director Mr Albonico executed the Contract for Sale of Strata Title Property, accepting the final terms proposed by the plaintiff. The deposit was paid. A building licence was granted for the Condor Tower project on 15 November 2005: exhibit 9. Condition 63 of the building licence is 'parking facilities to AS 2890.1'.
According to the plaintiff, his relationship with Ms Thomas continued for about another three months after the execution of the agreement, ending either at the end of 2005 or early in 2006. They were together, he said, for about nine months in total. The precise duration of the relationship between the plaintiff and Ms Thomas, whether they were still in a relationship when the Contract was signed and whether the relationship continued for a time after that were matters that were explored in the plaintiff's evidence and in the cross‑examination of Ms Thomas. The purpose of that for the plaintiff's case was seemingly to establish opportunities for the lengthy and repeated conversations about the Contract described by the plaintiff.
Cross‑examination did establish that the plaintiff did not appear in Ms Thomas' Christmas photos that year. According to Ms Thomas she and the plaintiff had certainly broken up by New Year's Eve. That date was established by reference to absence of the plaintiff from family Xmas pictures and by the death of Ms Thomas' dog, Sammy, on New Year's Eve.
Whatever significance the relationship details might have had in respect of the plaintiff's case, they do in my view have significance for the assessment of credibility. It is undisputed that whatever the precise length of the relationship the parting was for reasons of 'non-compatibility' and amicable. The plaintiff and Ms Thomas were still on sufficiently friendly terms after their breakup that, on Ms Thomas' evidence, when her dog died nearly three months after the Contract was signed the plaintiff was received at Ms Thomas' house to console her.
The completion of Condor Tower was much delayed. By early July 2009 however the project was nearing completion and buyers were warned to prepare for settlement. The plaintiff was naturally interested to see how his apartment had turned out. There was some delay in the finishing to his apartment although Apartment number 150 was nearly complete. The plaintiff arranged with Wayne Briggs to view apartment 150 to get an idea of what the plaintiff's apartment would look like on completion.
Later in these reasons I will refer to the issues that arise on the pleadings, as well as an issue pleaded but abandoned at trial with respect to what were said to be misleading representations made by Mr Briggs at the meeting at apartment 150.
When the plaintiff went to look at apartment 150 he was able to look into apartment 151. He was able to step over the partition that was in place on the balcony. He simply walked along the balcony and looked through the windows of 151. He observed that in place of the bamboo floors stipulated in the general specifications, apartment 150 had marble floors, while he could see carpeted floors in apartment 151. Wayne Briggs he said told him that the developer had chosen to upgrade apartment 150. As to apartment 151, he said that Briggs told him that the developer had made a change, and that the plaintiff would have to speak with the developer. He said that Briggs told him that the air conditioning was a 'work in progress' but that it was going to be finished prior to settlement. At this stage as the plaintiff said neither apartment had fan units installed but he could see the wiring and plumbing in place, running up the outside wall and going into the building. In other words, provision had been made for air conditioning. Compressors and fan units were later installed for apartment 150. The plaintiff said that Mr Briggs also told him that he could not go and check the parking that had been provided because construction was still in progress on those levels.
About a week later the pre-settlement inspection provided for under the Contract was carried out. The plaintiff attended with his then [personal] partner and the defendant's representative. At that time a nine page list of defects was prepared to give to the defendant. The plaintiff however was still unable to inspect the car park levels.

On 29 July, the plaintiff met with the settlement agents and was shown a copy of the registered strata plan. When he looked at it, he said that he noticed that his car parking area had been reduced. Subsequently he raised that issue as well as his concerns that he had not been provided with a complete air conditioning system, storage locker, or bamboo flooring for the main living areas of the apartment. He also took issue with the lack of a screening partition down the middle of the southern balcony between apartment 150 and apartment 151.
When the plaintiff took possession of apartment 151, there were several surprises. First, although the area of the apartment itself had been reduced by 3 sqm, the area of the rear balcony had apparently been increased by 5 sqm and the front balcony by 12 sqm. Contrary to General Specification 9 but consistently with the Detailed Plan, exhibit 3, there was marble tiling in the entry area and the kitchen. Inconsistently with both the General Specification and exhibit 3 there was carpet in the living room. Consistently with exhibit 3 there was marble tiling laid in all bathrooms rather than the ceramic tiles provided for in the General Specification. Rather than ceramic tiles up the walls to the stipulated height, there was full height marble tiling to all bathrooms. And, the storage area in the fourth bedroom had become an ensuite toilet, finished to the same standard as the others.
While the plaintiff had been provided with an enclosed lock up garage as stipulated in the Contract, the area of the garage space had been reduced. The garage had been constructed in accordance with the Detailed Plan, exhibit 6, and not exhibit 4. The garage had been enclosed by a mesh fence between the pillars shown in the plans at the eastern side of the plaintiff's garage area. The effect of this was to reduce the total garage space from 55 sqm to 46 sqm, or 47.6 sqm, according to evidence that I will refer to later. The area that was lost was the area between the two structural pillars and immediately to the east of those pillars.
Finally, contrary to the plaintiff's claimed expectations, he had not been allocated a storage area.

Statement of claim

The plaintiff's pleaded case is that the Contract contained express written terms that he would receive 'a car parking pay of 55 sqm' and that the apartment floor would be covered by carpets in the bedrooms and bamboo floors in the living areas. At par 5 of the statement of claim the plaintiff pleads that the Contract also included two terms that were partly in writing and partly oral. Those terms were:
5.1The apartment would be air conditioned, provided for by annexure B of the Contract and orally confirmed by selling agent; and
5.2the plaintiff would receive a store room, provided for by annexure A of the Contract and orally confirmed by the selling agent.
The particulars of the 'oral terms' refer to statements allegedly made by Ms Thomas to the plaintiff between 14 September 2005 and 5 October 2005. I have referred to the plaintiff's evidence with respect to those matters.
The plaintiff pleads that it was an implied term of the Contract that there would be permanent vertical screening between his apartment balcony and the adjoining apartment 'to restrict views'. Originally this was pleaded as a term to be implied as a matter of law, in compliance with the 'Residential Design Codes of Western Australia (R-Codes; 3.8.1 A1(ii) Privacy Requirements)'. At trial this was amended so as to allege section 4.10 of the City of Perth Development and Design Policy made pursuant to the City Planning Scheme 2004 (No.2) as an alternative basis for the implication. The plaintiff's submissions expanded this to an argument that the term was to be implied as a matter of fact or alternatively law, without objection by the defendant.
The plaintiff says that the defendant breached the Contract by:
1.supplying a car bay of only 46 sqm;
2.not providing a store room;
3.covering the floor with carpet;
4.not providing a balcony partition; and
5.not providing air conditioning.
The plaintiff also advances a claim pursuant to the provisions of the TPA. The same statements said to have been made by Ms Thomas as an employee of the defendant's selling agent and offered as particulars of the oral terms I have referred to, are also relied upon as misleading statements. If the terms with respect to air conditioning and storage areas are not found to be express or implied terms of the Contract, then as an alternative the plaintiff seeks orders pursuant to s 87 of the TPA, amending the Contract to include contractual terms in accordance with the alleged representations.
Statements said to have been made by Mr Briggs in the course of the 'pre-inspection' of apartment 150 and the balcony of apartments 150 and 151 were originally relied upon as statements said to have induced the plaintiff to forego his right to terminate the Contract prior to settlement.
The plaintiff seeks damages in the amount of $172,000 for breach of contract.

Defence

By its further amended defence the defendant admits that:
2.1the Plaintiff and the Defendant entered into a contract for the sale and purchase of apartment 151 Condor Tower … the terms and conditions of which the defendant will rely on at trial;
2.2Wayne Briggs Property Group Pty Ltd was the defendant's selling agent; and
2.3Janine Briggs was employed by the Wayne Briggs Property Group Pty Ltd.
The defendant denies that Ms Thomas made the statements attributed to her and denies in any event that the selling agent had actual or ostensible authority to make the kinds of representations alleged.
Otherwise the defendant pleads in effect that:
1.on the proper construction of cl 3.2.2 of the Contract the defendant was obliged to cause apartment 151 to be built in accordance with a Planning Application defined at cl 2.2.1 of the Contract that would be in accordance with the Simplified Plans and General Specification that were annexures to the Contract (Defence 2.5);
2.the General Specification that was annexure B to the Contract described the floors of apartment 151 as 'quality carpets to the bedrooms and bamboo floors to the living areas' (Defence 2.6);
3.the boundary between the balconies of apartments 150 and 151 was built in accordance with the building licence issued and the Simplified Plans being annexure A to the Contract (Defence 2.7);
4.the General Specification, annexure B to the Contract required the defendant to provide electrical outlets for air conditioning, but did not require the provision of air conditioning (Defence 2.8);
5.on the proper construction of the Contract no separate store room was included as any part of the entitlement of apartment\strata lot 151 (Defence 2.10, 2.11);
6.the proper construction of cl 3.4.4 of the Contract, in the event of any inconsistency between the Simplified Plans and the General Specification and the Detailed Plans then the Detailed Plans prevail (Defence 2.14);
7.by the terms of cl 3.5.1 of the Contract the defendant could vary the Detailed Plans and the General Specification for any one of four specific reasons, each of which is separately pleaded. One of the reasons pleaded is 'if required to do so by the City of Perth' (Defence 2.15);
8.the effect of cl 3.5.4 of the Contract is that no variation to Apartment 151 entitles the plaintiff to claim compensation (Defence 2.16);
9.the effect of cl 2.7.1.6 is that the Defendant [sic] cannot object, make a requisition or claim compensation if the as built size of apartment 151 does not differ by 5% less or 5% more than the area shown in the Strata Plan, annexure C to the Contract (Defence 2.17) and the proposed Strata Plan that was annexure C to the Contract showed apartment 151 as having a total area of 353 sqm including a front balcony of 53 sqm, a rear balcony of 10 sqm and a 55 sqm car park (Defence 2.18).
With respect to this last matter, the defence at paragraph 2.18 acknowledged that 'the Strata Plan as registered evidences that' apartment 151 had a total area of 358 sqm including a front balcony of 65 sqm, a rear balcony of 15 sqm and a 46 sqm car park.
The defendant's pleading is notable for the fact that while cl 3.5.1.1 to 3.5.1.4 of the Contract are expressly pleaded, cl 3.5.1.1 being invoked as 'if required to do so by the City of Perth', nowhere was it alleged that any variation by the defendant of either the Detailed Plans or the General Specification was in fact prompted by one or more of the four reasons set out at clauses 3.5.1.1 to 3.5.1.4. When counsel for the defendant sought to advance evidence justifying changes made by the defendant by reason of a particular requirement of the City of Perth, counsel for the plaintiff objected. Inevitably, when counsel for the defendant sought to amend the defence to plead, as a matter of fact, a reason within the terms of cl 3.5.1 for the variation to the detailed plans and general specification, counsel for the plaintiff opposed the amendment. For the reasons given in the course of my ruling during the trial I did not allow the amendment.
Despite the plea that refers to cl 3.4.4 of the Conditions, no reliance was placed by the defendant on any inconsistency between the Detailed Plans and the Simplified Plans.

Misleading and deceptive conduct claims

The plaintiff's claims with respect to the 'pre-inspection' statements that statements made by Mr Briggs shortly before settlement was to take place misled the plaintiff so that he was induced not to exercise a right he arguably had to terminate the Contract. These claims were abandoned on the third day of the trial. Given the evidence before me that apartment 151 at about the time of settlement was worth something in the order of a million dollars more than the price the plaintiff was to pay, it is not surprising that that particular claim was abandoned.
The plaintiff's case with respect to the misrepresentations that he said were made to him by Ms Thomas depend for their success upon an acceptance of his evidence as credible on those points. I do not accept that evidence.
The plaintiff's demeanour in the witness box did not inspire confidence. In fact it was to the contrary. Quite apart however from matters of demeanour, which are subjective and difficult to articulate, the plaintiff's evidence itself was in a number of respects inherently improbable and contrary to evidence that I do accept.
I have referred to the plaintiff's evidence with respect to his occupation and his work experience. He is far from an average layperson so far as his ability to understand commercial contracts and appreciate the significance of their terms. He said that he had been through the Contract in detail. Having done that he had 'significant and quite detailed discussions with Ms Thomas over quite a few days, mainly because there was a lot of inconsistencies and ambiguities in the document that [he] wanted clarified'. While I do not accept that there were detailed discussions of the kind claimed by the plaintiff, having seen the plaintiff give evidence I have no doubt that he would have regarded himself as having a superior ability to Ms Thomas with respect to contractual matters. His evidence was that over a number of days in his discussions with Ms Thomas:
I raised a list of approximately 20 and ranging from the – the parking, there was many variations of the parking in the drawings in the contract, whether it be lock up or just car bays, so I needed that clarified. After approximately three or four days Ms Thomas got quite frustrated with me because she felt I was being too detailed and too pedantic and that the contract was what the contract was, and if I didn't like it, then I don't sign it. The developer was not going to change the contract with any of the – the variations that I'd put in.
It was not clear what the plaintiff intended in this last respect. There were no documents prepared by the plaintiff showing any variation or draft variation in evidence before me.
I do accept however, based on Ms Thomas' evidence, that if the plaintiff had sought changes in the Contract (apart from Special Conditions) Ms Thomas would in fact have advised the plaintiff in effect that if he didn't like the Contract then he shouldn't sign it.

Storage and air conditioning - credibility

The first offer that the plaintiff presented was in the amount of $1.7 million. The plaintiff knew that the vendor's listed asking price for this unit was $1.95 million: ts 69. From Ms Thomas' evidence, up to that stage of the sales programme, the developer had been reasonably insistent upon requiring the listed price.
The plans that were provided with the Contract showed, in the lower levels of the tower and in particular in the parking levels, a number of small spaces marked as storage. What was also apparent from the drawings was that the total number of residential and commercial units exceeded the number of storage spaces that appeared to be available.
At [47] – [48] above I referred to the plaintiff's evidence as to discussions with Ms Thomas about a storage bay and air conditioning and her alleged insistence that he should not include a special condition with respect to either despite the fact that he would receive both because 'you're buying a penthouse'. It was of course the plaintiff's evidence that Ms Thomas expressly advised him not to include special conditions.
Keeping in mind the plaintiff's experience in dealing with contractual matters, his suggestion that he believed the references to air conditioning in the Contract were 'quite vague' is implausible. His evidence is that he read the Contract in detail. With respect to 'residential' units the specification is for 'provision' for air conditioning in contrast to the other Electrical items that are stipulated as 'included'. The significance of 'provision for' as opposed to 'included' is stark. I do not doubt that the significance of the word 'provision' did not escape the plaintiff's attention and I do not doubt that it was understood by him.
The ordinary English meaning of the word 'provision' includes 'to make prior arrangement or preparation for'. The stipulation of 'provision for' would oblige the vendor to ensure that during the course of construction all preparatory work was done to allow the convenient later installation of an appropriate air conditioning unit. What it did not suggest was that the air conditioning unit itself would be provided. The work necessary to make provision may well have gone beyond simply the provision of an electrical outlet as pleaded by the defendant. As the photographs included in the expert report of Kevin Windross show, ducting and diffusers for an air conditioning system were installed during construction of apartment 151: exhibit 39.
What the term 'provision for' would not suggest however to any reasonably intelligent English speaker was that a complete functioning air conditioning system was included in the purchase price. If the plaintiff had any doubt as to what the term might have meant, a comparison between the specifications for residential and commercial units would have made it entirely clear that residential units did not receive complete air conditioning systems. Article 20 of the bylaws contained in Annexure D also rather strongly suggests that air conditioning was not provided as a matter of course.
I also find entirely implausible the idea that the plaintiff would not have insisted upon a term that he required once he had recognised that it was not provided for in the Contract or if he truly thought it was 'vague'. His evidence in this regard is to be contrasted with his own actions in including two special conditions in the offer that he made. In particular the special condition with respect to the testing of the balcony drainage is so idiosyncratic that it beggars belief that he would include that condition but omit a 'clarification' with respect to air conditioning and a storage space.
According to his evidence, he believed that it would be problematic if he tried to clarify that items said to be included as a matter of course, 'because he was getting a penthouse', were in fact included. I do not accept that he believed that the seller would reject his offer if it 'clarified' that something was included that, on his evidence, was to be included in any event.
Nor is it the case, as the plaintiff said, that he chose as a result of Ms Thomas' advice to only use a 'special clause' or special condition to resolve 'inconsistencies in the document'. His special condition with respect to testing of the drainage has nothing to do with any 'inconsistencies in the document' and everything to do with ensuring that the plaintiff obtained exactly what he wanted. The special condition with respect to parking provides a further insight into the plaintiff's thought process.
There is some inconsistency between Annexure C the Proposed Strata Plan, and Annexure B the Simplified Plan. Annexure C refers to both 'car bays' and 'garages' on sheet 4 of 18, but does not clearly label Pt 151 as a 'garage'. By contrast the ground floor layout in Annexure B plainly describes the area of parking that the plaintiff was to receive as 'lockup garage'.
The special condition ' … confirms that the garaging is fully enclosed with remote control entry for exclusive use'.
As set out above, the plaintiff recognised that it was appropriate to mark out his parking garage area by encircling it on annexure 'C', the proposed strata plan and initialling that part of the plan so marked. That was despite the fact that that particular area was shown on the plan as being 'Pt 151', consistently with his apartment number and strata lot. Given his recognition of the necessity of so designating his parking area, his asserted belief that he would receive either title to or exclusive use of one of the storage areas without the same kind of designation is unlikely.
From the transcript of the plaintiff's evidence it will be seen that in the course of the discussions that he described it was rare for someone to merely 'tell' him something. Rather, Ms Thomas and later Mr Briggs 'confirmed' or 'reassured' or even 'went to great efforts to emphasise the benefits'. Much of what the plaintiff had to say had the ring of a submission as opposed to merely trying to recount past events.
Ms Thomas, by comparison, I found to be sensible, measured and credible. She denied saying the words that the plaintiff had put into her mouth. When she was challenged in cross-examination with the proposition 'you don't actually remember the discussion with Mr Souter three years earlier than that [sic], do you?' she answered 'well, no one remembers verbatim but they remember the gist of what they were saying'.
What Ms Thomas remembered was that she knew at the time as a fact that air conditioning was not included with residential units nor was a designated storage space. She knew that there were not sufficient storage spaces for all units to have one. She knew it was possible that, if it was necessary to conclude a negotiation on terms otherwise acceptable to the defendant, the defendant might agree to the provision of those items. She also knew however that if that was to occur it had to be included in the agreement as a special condition. Those things, she said, were not asked for by the plaintiff and she never told him that they would be provided without a special condition.
A motive or reason for what counsel for the plaintiff called '… a very, very nasty personal betrayal …' of the plaintiff by Ms Thomas was hinted at in closing submissions. Counsel for the plaintiff said, 'All one can say is commercial interest. That's all one can infer' (ts 382, 391). The evidence does not suggest that such an inference is open, much less probable. I do not 'infer', as it was submitted that I should, that Ms Thomas intentionally deceived the plaintiff for her personal financial benefit.

Despite the court's broad discretion with respect to costs, normally a successful party will recover his costs: O 66 r 1(1) Rules of the Supreme Court 1971. Some good reason must be demonstrated by an unsuccessful party for it to avoid an order that it pay the successful party's costs.
Order 66 r 1(1) is tempered by r 1(2) and r 1(3). Rule 1(3) is in the following terms:
Where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the Court may order such party to pay the costs of such issue or issues.
As was said however by the court in Keet v Ward [2011] WASCA 139 [18] – [19]:
… Notwithstanding O 66 r 1(3), courts are generally reluctant to apportion costs on the basis of success or failure on particular issues arising in the course of the trial. In Cretazzo v Lombardi (1975) 13 SASR 4, at 16, Jacobs J said:
'I would wish to sound a note of cautious disapproval of applications … to apportion costs according only to the success or failure of one party or the other on the various issues of fact or law, which arise in the course of a trial … trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case.'
His Honour noted that:
'There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.'
Order 66 r 2(a) is also invoked by the defendant here. That rule provides that-
In the absence of any special order ‑
(a)where the statement of claim contains more than one cause of action and the plaintiff succeeds on one or more causes of action and the defendant succeeds on another or others, costs should be allowed to the plaintiff on the cause or causes of action on which he succeeds and to the defendant on that or those on which he succeeds, in the same manner as if separate actions had been brought …
Order 66 r 2(a) has been considered by a number of cases. The manner in which O 66 r 2(a) will ordinarily be applied however is conveniently summarised in the decision of the Court of Appeal in Keet v Ward at [24]:
There are a number of cases which discuss O 66 r 2(a). From them the following propositions may be drawn:
(a)the expression 'cause of action' in O 66 r 2(a) is a reference to a factual situation, the existence of which entitles the plaintiff to obtain a remedy: Letang v Cooper [1965] 1 QB 232, 242 (Diplock LJ); Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569, 572 (Anderson J);
(b)the rule does not provide an inflexible rule which prescribes a mandatory approach to the awarding of costs in cases where there are multiple causes of action. The opening words 'in the absence of any special order' indicate that the court retains the discretion to make a special order departing from the rule in O 66 r 2(a): Kimpura Pty Ltd v JWH Group Pty Ltd [2004] WASCA 134 [12] ‑ [15];
(c)however, where there are multiple causes of action and a party has succeeded on only one or some, the other party is prima facie entitled to costs on the others but the court will always attempt to do substantial justice in the circumstances: Permanent Building Society v Wheeler (No 2), 574 - 575 (Anderson J);
(d)it may not be appropriate to make a costs order in accordance with O 66 r 2(a) where there is in substance one contest, that is, where the causes of action arise from the one course of dealings, the one transaction or the same facts: Permanent Building Society v Wheeler (No 2) 574 - 575; R J Baker Nominees Pty Ltd v Parsons Management Group Pty Ltd [2009] WASC 206(S); Witcombe v Talbot & Olivier [No 2] [2009] WASC 173(S) (Beech J).

The nature of the litigation

It is the case that all of the claims in respect of this litigation arose in respect of one transaction, the purchase of an apartment by the plaintiff from the defendant. In my view however it would be a gross generalisation obscuring the substantial matters at issue in this litigation to characterise everything that occurred between the plaintiff and the defendant or the defendant's agents and the claims advanced by the plaintiff as 'in substance one contest'.
In narrower conceptual terms there were three topics at trial around which the issues of fact revolved. The first was the plaintiff's cause or causes of action for breach of contract. The second was the plaintiff's causes of action for misleading and deceptive conduct. The third was the remedy sought by the plaintiff for each of its claimed causes of action.

Causes of action

The plaintiff's claims for breach of contract were divisible into claims for breach of express written terms and in one case an implied term on the one hand, and breach of terms said to be partly in writing and partly oral, on the other. These latter terms it was alleged stipulated that the plaintiff should have received a fully functioning air conditioning system for his apartment and a dedicated separate store room.
At trial, so far as the express terms which were said to have been breached, the only real issue was whether the terms of the contract allowed the defendant to depart from express stipulations as to the dimensions and features of the apartment. With respect to the term sought to be implied, the only real issue was whether that term was inconsistent with other terms in the contract, properly construed.
With respect to the claim for breach of terms said to be partly in writing and partly oral, as I found, the writing simply did not support the terms claimed. The 'oral terms' were alleged to have arisen from alleged pre‑contractual oral misrepresentations by Ms Thomas, a registered real estate sales representative employed by the defendant's real estate agent.
With respect to the claims of breach of contract then the plaintiff was partly successful. In respect of the express written terms the plaintiff succeeded on a legal argument that required no evidence other than the terms of the agreement. With respect to the issue of the implied term, the privacy screen on the balcony, the evidence necessary to demonstrate that the need for a privacy screen was so obvious as to go without saying occupied relatively little time. The allegation that there was an express oral agreement was disposed of when I was unable to accept the evidence of the plaintiff.
In my view, properly understood, the allegation that there were specific express contractual terms derived from oral representations of Ms Thomas constituted a separate cause of action. By way of example, if after the expiry of a limitation period the plaintiff had sought to add a claim for the breach of the alleged oral contractual terms to an existing claim for breach of the express written terms of the agreement, in my opinion the additional claim would be statute barred: ABB Service Pty Ltd v Hetherington [2001] WASCA 417.
On these issues, on the causes of action of breach of contract, while considerable time was occupied by legal argument as to the proper construction of the written terms of the agreement, little was required by way of evidence. By contrast, the issue of what was alleged to have been said by Ms Thomas and what was known to the defendant's agent as to the subject matter of those alleged oral representations took less time in argument but occupied much of the evidence.
There was a factual overlap in the case alleging a breach of express oral contractual terms and the plaintiff's case on misleading and deceptive conduct and I will refer further to that below.
The plaintiff's case on misleading and deceptive conduct divided into two parts. Each could be said to be a separate cause of action in the sense described by the Court of Appeal in ABB Service Pty Ltd v Hetherington. The first part relied on what were said to be the pre‑contractual oral misrepresentations of Ms Thomas. I observe that while the plaintiff's pleading alleged only misleading and deceptive conduct, the plaintiff by his counsel did not hesitate to argue in closing that in fact Ms Thomas had fraudulently deceived the plaintiff. As set out in my reasons for decision I rejected that argument and rejected the idea that Ms Thomas had misled the plaintiff in any way. The significance of allegations of this kind as against someone who earns their living as a registered real estate sales representative would be obvious. The defendant however does not rely on that as a basis for disentitling the plaintiff to costs and I do not therefore have regard to it.
The second part of the plaintiff's case in misleading and deceptive conduct was that, after executing the agreement for the purchase of his apartment but prior to settling on it, he had again been misled by the principal of the defendant's agent, Mr Wayne Briggs. That allegation was maintained until it was abandoned on the third day of trial: [74]. This particular cause of action did not overlap factually with any other cause of action. It relied upon the proof of the number of facts that were in dispute. It occupied only a modest amount of time at trial but it would have been a burden to the parties before the trial.
The evidence relied upon to try to prove express oral contractual terms, the alleged pre‑contractual representations of Ms Thomas, was the same evidence relied upon to prove the misleading and deceptive conduct claim that the plaintiff pressed in his closing submissions. The evidence with respect to those matters and the argument of those matters occupied a considerable period of time at trial and no doubt in the parties' pre‑trial preparation. The plaintiff failed entirely with respect to those issues.
The last of the three main topics at trial was the question of the remedies sought by the plaintiff in respect of his causes of action. The plaintiff sought damages for breach of contract and for misleading and deceptive conduct. He also sought remedies pursuant to the Trade Practices Act1974 (Cth) that would have effectively rectified the written agreement to reflect what the plaintiff said were the assurances that had been made to him orally by Ms Thomas. While counsel for the plaintiff advanced arguments as to the plaintiff's entitlement to these latter remedies it was ultimately not necessary for me to deal with them in my reasons for decision.
So far as the claims for damages for breach of contract were concerned some of them, including for example claims for the costs of an air conditioning system and the cost of replacing flooring, were either relatively straightforward and unchallenged or but faintly challenged. The latter was the case for the issue of the cost of providing storage space. No evidence was called by the defendant and the cross examination of the plaintiff's expert was economical.
The damages issue that dominated the evidence and ultimately the central factual issue so far as damages were concerned was the plaintiff's claim in respect of the value to be attributed to the 8 or 9 sqm that was lost by the plaintiff from his garage area.
The plaintiff's case was that he had effectively lost a space in which a car could be parked and his loss should be valued in that way. The defendant's argument, (characterised by plaintiff's counsel as 'rubbish' although it was supported by the expert opinion of an architect regularly engaged in high rise development projects in the City of Perth), was that the lost 8 or 9 sqm could not be used as a parking bay. That was because, as set out in my reasons for decision at [180] – [205] the long and thin area that had been taken from the plaintiff did not meet the requirements of the City of Perth reflected by the Australian Standard 2890.1: 2004 for a parking space. Nor was it practically possible to put any kind of motor vehicle in the extra space that should have been left to the plaintiff even if it could have done consistently with the requirements of the City of Perth.
This issue occupied considerable time at trial. With respect, for the reasons set out in my decision after trial, the vigour with which the argument was advanced on behalf of the plaintiff and the time consumed by the issue was in inverse proportion to its merits.
Depending precisely on how it is to be characterised, the plaintiff succeeded either in part on his cause of action in contract or in one of his causes of action in contract.
The plaintiff failed however and the defendant succeeded on the issue of the 'oral agreement'. Given that this claim required proof that contractual terms had come into existence by virtue of what Ms Thomas had said as opposed to from the plain words of the party's written agreement, in my opinion it is better characterised as a separate cause of action.
The defendant successfully opposed the plaintiff's claim based on the cause of action in misleading and deceptive conduct and the plaintiff abandoned a further cause of action in misleading and deceptive conduct on the third day of trial.
There was conduct on the part of both parties here that unnecessarily prolonged the trial. The defendant's late attempt to amend its defence is one. That however has to be balanced against the plaintiff's efforts to exclude references to AS2890.1 as 'irrelevant' when that particular Australian standard was expressly nominated as the standard for the provision of parking spaces in the building licence tendered into evidence by the plaintiff, and was expressly relied upon by the plaintiff's expert witness in providing his opinion as to what the plaintiff had allegedly lost.
I have referred to the provisions of O 66 r 2(a). It is still necessary however, as his Honour Justice Anderson said in Permanent Building Society v Wheeler (No. 2) (1993) 10 WAR 569, 574 to have regard to the fact that orders of the kind set out in that rule are not to be made as a matter of course. As his Honour said 'the court will always look at the realities of the case and attempt to do substantial justice …'.
In this case there was an overlap in the facts relied upon and the evidence tendered in the cause of action in breach of contract, at least with respect to oral terms, and one of the causes of action for misleading and deceptive conduct. The plaintiff failed in establishing the facts relied on for both. As I have said, the plaintiff simply abandoned the second cause of action for misleading and deceptive conduct that relied on the alleged conduct of Wayne Briggs.
The defendant was successful in defending discrete causes of action. The time and effort devoted to the litigation of those causes of action were at least equal to that occupied in proving the matters upon which the plaintiff was successful.
Assessing the relative success of the parties here, the limited success of the plaintiff is in my view offset by the effort involved in pursuing causes of action that were either abandoned, based on unproven oral representations and an issue that was simply so unreasonable that it was bound to fail.
Apportioning costs by attributing them to particular issues- or causes of action- brings its own particular problems. In my view it is unnecessary in any event in this case. In my view fairness here requires that there be no order as to costs.

Interest

The plaintiff seeks an award of pre‑judgment interest as damages. Interest is sought in respect of the damages awarded to compensate the plaintiff for the reduced size of his garage area, and the cost of providing a privacy screen across the common balcony and to remove carpet and replace it with bamboo flooring in his apartment. The plaintiff had not at the time of trial incurred any cost himself in respect of those matters.
Ordinarily damages for breach of contract are assessed as at the date of breach. That general rule will yield in particular cases to solutions best adapted to give the innocent party that amount in damages which most fairly compensates for the loss and damage caused by the breach: Rio Tinto Exploration Pty Ltd v Graphite Holdings Pty Ltd [2007] WASCA 276 per Buss JA at [93] and see Johnson v Perez (1988) 166 CLR 351, 355 – 356 (Mason CJ), 367 (Wilson, Toohey and Gaudron JJ), 371 (Brennan J).
The breach in this case occurred at the end of July 2009 at the time of settlement. The trial took place in mid‑May 2011. The damages the plaintiff was awarded were based on estimates (exhibit 39, expert report of Kevin Windross, 19 November 2010) and a valuation (exhibit 40, expert report of Scott Bellerby, 23 December 2010) that were far closer in time to the date of trial than the date of breach. The valuation of the lost parking area was arrived at using a discount rate based on interest rates current in the last quarter of 2010.
No submission was made at trial with respect to the timing of the assessment of damages. The fact is however that the assessment that I made, based on the evidence referred to above, was an assessment at the time of trial. In the circumstances I decline to award prejudgment interest. The plaintiff is of course entitled to interest on the judgment.