Subway Pty Ltd v VCP Investments Pty Ltd
[2009] VCC 1311
•29 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST – GENERAL DIVISION
Case No. CI-08-04963
| SUBWAY PTY LTD (ACN 006 369 946) | Plaintiff |
| v | |
| VCP INVESTMENTS PTY LTD (ACN 094 | Firstnamed Defendant |
| 692 190) | |
| & | |
| VALMAI COLLEEN PYKE | Secondnamed Defendant |
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| JUDGE: | Her Honour Judge Kennedy |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22, 23, 26 October 2009 |
| DATE OF JUDGMENT: | 29 October 2009 |
| CASE MAY BE CITED AS: | Subway Pty Ltd v VCP Investments Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1311 |
REASONS FOR JUDGMENT
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Catchwords: Contract for sale of land- whether contract concluded- whether statement signed by vendor given to the purchaser before it signed contract pursuant to s32(1) of the Sale of Land Act 1962
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. J. Isles | Salinger & Associates |
| For the Defendant | Mr. K. Kappadath | John Anile Pty |
| HER HONOUR: |
1 Subway Pty Ltd seeks the sum of $120,000 being an unpaid deposit following the breach by VCP Investments Pty Ltd of a contract of sale of land dated 2 June 2008 for the purchase of a property at 370 Duncans Road, Werribee South. Subway also claims $120,000 from Mrs Valmai Pyke pursuant to a guarantee contained in the contract of sale.
2 Subway says that a contract and guarantee were executed by VCP and Mrs Pyke respectively on 2 June 2008. Further, that the contract was signed by Subway’s director, Mr Kevin Lally, that evening.
3 VCP and Mrs Pyke claim that there is no concluded contract. More particularly they characterise the documentation signed by VCP and Mrs Pyke on 2 June as an offer and say:
(a) the contract signed on 2 June is different from that relied on by Subway in that the words “if applicable” have been added to the purchase price of $1.2 million including GST. Accordingly, any acceptance by Subway constituted a counter-offer;
(b) that any offer was partly oral and conditional and “subject to the vendor providing its ABN number and quantifying the GST component on the transaction;” [1]
(c) no acceptance was communicated on 3 June. In these circumstances they allege that correspondence of 4 June constituted a withdrawal of offer which was operative given no communication of acceptance.
[1] Further Amended Defence filed 23 October 2009, particulars of paragraph 2(a). Allegations to the
4 Subway, in turn, deny that any additions to the contract were made and deny that any oral conditions were imposed on the contract. It also says that acceptance of VCP’s offer by Subway was communicated to VCP by reason of an oral conversation on 3 June between its estate agent, Mr Burns, and Mr Pyke. Alternatively, it was communicated by reason of correspondence dated 3 June forwarded to Mr Caleandro at Caleandro Guastalegname & Co, solicitors for the purchaser.
5 VCP and Mrs Pyke also allege that the statement provided by Subway on 2 June was not signed by the vendor in compliance with s32 of the Sale of Land Act 1962. [2] As a result VCP was entitled to, and has rescinded the contract pursuant to the filing and service of the amended defence of 3 April 2009.
[2] An earlier allegation that there was a breach of s32 by reason that the statement provided was not dated prior to the first defendant signing was not pursued
6 Subway say that a signed s32 statement was provided.
7 VCP and Mrs Pyke otherwise take no issue with Subway’s case. In particular they admit that Mrs Pyke signed the guarantee[3] although they challenge the primary liability to which the guarantee relates. They also do not pursue an earlier defence that any contract was ended pursuant to its cooling off provisions[4]. In the event Subway shows that a concluded contract was reached and that there is no breach of s32 as alleged, they also do not challenge Subway’s entitlement to damages against VCP and Mrs Pyke in an amount of $120,000.
[3] Further Amended Defence, filed 23 October, 2009, paragraph 7
[4] Notice of Defence filed 19 December 2008
8 Accordingly the issues in the case are two-fold:
(a) whether there was a concluded contract;
(b) whether s32 of the Sale of Land Act 1962 has been breached.
9 In terms of whether there is a concluded contract the issues are:
(a) whether the document signed on 2 June was “added to” as alleged, and, if
yes, what is the effect?;(b) whether the offer made was “conditional” and, if yes, what is the effect?;
(c) whether there was communication of acceptance on 3 June?;
(d) if no to (c), whether the offer of 2 June was withdrawn on 4 June, and, if
yes, what is the effect?Background Facts
10 Mr Lally is a director of Subway. By authority dated 24 May 2008 he gave exclusive authority to Burns Real Estate, trading as Ray White, to sell the Weribee South property. The exclusive authority period was given as 14 days only. Mr Burns was the principal of Burns Real Estate while Mr Pickett was employed by Ray White in May 2008, but has since left.
11 Mrs Pyke is the director of VCP, but it was conceded that her husband, Mr Pyke, was the agent for VCP for receiving communications in relation to the property. Mrs Pyke further agreed that her husband was principally involved in the negotiations for the purchase of the property.
12 The evidence of Mr Pyke was that both VCP and his wife ordinarily acted in accordance with his directions and that he in fact ran the VCP business. Mr Pyke gave his occupation as transport operator and was apparently experienced with business transactions, conceding that he had purchased “plenty” of real estate properties. He was also interested in this property as a “commercial property.”
13 The Pykes were first shown the Werribee South property on 27 May by Mr Pickett.
14 On 27 May, 2008 VCP signed a contract note for the purchase of the property. That contract note gives the purchaser’s solicitor as Caleandro Guastalegname & Co. The price given is $1.2 million “plus any GST” with the deposit of $120,000 payable by 27 May and the balance by 27 September. A cheque for the deposit of $120,000 was handed over at this time.
15 However, the offer contained in the note was not accepted. Instead, from 27 May, 2008 a number of issues involving a pump, a water licence, a bore and also the GST were raised for discussion in relation to the purchase of the property.
16 On 2 June, 2008 a contract of sale was executed by Mrs Pyke on behalf of VCP for the purchase of the property at $1.2 million “including GST (if applicable).” A guarantee was also executed by Mrs Pyke in respect of the monies due under the contract of sale. The contract provides for the payment of a deposit of $120,000 on signing with the residue due on 29 July. As the land was under the operation of the Transfer of Land Act 1958, the general conditions in Table A of the seventh schedule of the Transfer of Land Act 1958 apply.[5]
[5] see clause 9.1 general conditions
17 Mr Lally gave evidence that he signed this contract of sale on the night of 2 June, 2008 which evidence was corroborated by Mr Pickett.
18 Mr Burns’ evidence is that he then verbally advised Mr Pyke by telephone that the offer had been accepted in the morning of 3 June. This conversation is disputed by Mr Pyke.
19 By correspondence of 3 June Ray White advised that the property had been sold and enclosed the signed contract and section 32. The evidence of Mrs Burns, company director of Ray White, was that this letter was sent by prepaid post to Mr Caleandro, Caleandro Guastalegname & Co, solicitor and that it was never returned as “not known at this address.” A similar letter was sent to Mr Lally. The Pykes deny that Mr Caleandro was authorised to receive such post.
20 On 4 June, 2008, Mr Pyke forwarded a facsimile transmission to Mr Burns as follows:
“Craig tried to talk to you but you where busy please hold contract on cooling off period 370 Duncans road Werribee South We have not got a signed contract from vendor And Frank Caleandro needs to inspect contract of sale. Please ring me as soon as possible 043 8766015 or sale will not be able to proceed.”
21 Following receipt of this correspondence, Mr Burns phoned Mr Caleandro and forwarded another contract to Mr Caleandro at his post office box by correspondence of 4 June.
22 Further discussions then followed. Mr Pyke’s evidence is that he told Mr Burns that “the contract’s finished” on 5 or 6 June and that he should “tear it up”.
23 On 13 June 2008 the deposit cheque was dishonoured by the bank.
24 On 10 September 2008 Subway’s solicitors sent a notice of rescission consequent on the failure to pay the deposit on signing and also the default in paying the outstanding residue. The notice gave 14 days for VCP to remedy these defaults failing which the contract was said to stand rescinded pursuant to condition 6(2) of the seventh schedule of the Transfer of Land Act.
25 In the result, no deposit or residue was received during the 14 day period or at all.
26 This proceeding was issued on 20 November, 2008. Although Caleandro Guastalegname & Co initially filed a defence on behalf of the defendants in this proceeding, they filed Notice Ceasing to act on 20 February 2009. Mr Caleandro was not called as a witness.
Witnesses
27 Mr Lally gave evidence on behalf of Subway. Additionally, Mr Burns of Ray White Real Estate gave evidence as did Mr Bradley Pickettt, formerly of Ray White. Mrs Burns also gave short evidence as to the posting of the correspondence of 3 June.
28 The Pykes made criticism of Subway’s witnesses. It was said that they were “interested” and further that there were inconsistencies in their evidence.
29 Although it might be said that there was some “interest” generally this was not demonstrated in relation to Mr Pickett who has left Ray White. Mr Pickett was an impressive witness. Moreover, although there may have been some minor inconsistencies, they are readily explicable by the passage of time. Overall, the evidence led by Subway was cohesive, and also generally consistent with surrounding objective facts.
30 By way of contrast, the evidence of Mr Pyke was unsatisfactory and his evidence often confusing. For example, he initially denied that the original offer for the property made on 27 May was for $1.2 million “plus any GST’” though he later accepted that his wife must have signed on this basis. At times, he was also unresponsive and argumentative. For example, when asked why the document of 2 June was signed if matters were not resolved he replied “Do you want my answer to that? On being told yes, he then replied with a further question: “Do you want it long or short?”
31 Mr Pyke’s demeanour was also aggressive and defensive although this may have been explicable, in part at least, by his claim that he needed to speak loudly because he was partly deaf. However, other issues with his evidence will be referred to, below.
32 The evidence of Mrs Pyke was also unsatisfactory. She appeared anxious to make an attack on Subway’s witnesses, rather than to give responsive straightforward evidence. For example, when she was taken to her acknowledgment that she had been given a copy of a signed vendor’s statement she alleged it was not signed because Mr Pickett “couldn’t get your client. He tried to get him one day and he was at the races and at the pub the next day or something.” When this was explored further she was “unsure” as to when this alleged statement was made which suggestion had never been put to either Mr Pickett or Mr Lally. This vague but potentially damaging evidence was implausible and appeared to be “made up” as suggested by Counsel for Subway.
33 Overall then, I am unable to be confident that the Pykes’ account of events and issues is accurate and substantially reliable. To the extent their evidence differs from that of the evidence led by Subway, I generally prefer the evidence of Subway. However, I have considered the evidence in the context of all the other objective evidence in this case and insofar as it relates to particular issues.
34 Counsel for Subway also suggested that there was a failure to cross examine Subway witnesses on significant matters. I have generally admitted evidence apparently contradicting that of Subway notwithstanding any breaches of the Browne v Dunn principles. However, I have considered any failure to challenge as relevant to the question of whether the evidence of the Subway witnesses should be accepted, as will be seen below.
Whether there is a concluded contract
background
35 In determining whether there was a concluded contract, there were a number of issues raised for negotiation between 27 May and 2 June relating to a bore, a pump and the water licence. Further there was an issue regarding the GST.
36 The evidence of Mr Burns was that each of these issues was worked through but that at a meeting on 30 May the GST was still a sticking point with Mr Pyke saying “I don’t want to know nothin’ about GST- I don’t want a tax invoice….It’s 1.2 million-not a cent more.” That as a result of this Mr Burns phoned Mr Lally on 31 May and asked for instructions to put a deal together inclusive of GST which instructions were given. Mr Pickett then phoned Mr Pyke in the presence of Mr Burns asking Mr Pyke if he would sign off. Mr Pyke said he would but he wanted to speak to “Frank”, and they could then sign on Monday 2 June.
37 The evidence of Mr Lally was that on Saturday 31 May he received a telephone call from Mr Burns saying there was a problem with GST but that the deal could get done if it was $1.2 million GST inclusive. Mr Lally agreed to the deal being done on this basis.
38 The evidence of Mr Pickett was also that GST was still an issue on Friday 30 May because “they [the Pykes] didn’t want anything to do with GST so we had to get rid of the GST out of the contract.”
39 The evidence of the Pykes was that no meeting occurred on 30 May. However, the following exchange with Mr Pyke was significant:
“But Mr Pyke, on 2 June were you expecting anyone from Craig Burns’ office to
come to your premises?.....On the 2nd?
Yes?.....Yeah, Bradley Pickett.
You were expecting him?.....Yeah.
And you were expecting him why?........Because he’d rang and told me that he was bringing the contracts round for us to be signed, then taken to the-to the owner to be signed.
And do you agree that prior to that conversation about contracts being brought to you, you had had discussions with Craig Burns about the issue of the pump, the water licence and the bore?......Yes, that’s correct. And the GST.
And all those matters had been bedded down?....I believe that they had been bedded down. The one with the Rural Water-I hadn’t seen the paperwork, but they told me it was going to be fixed.”
40 The evidence, including that of Mr Pyke, was consistent with the fact that the outstanding matters, including GST, had been “bedded down” by 2 June. The only outstanding matter was the signing of the documentation which documentation Mr Pickett was bringing with him on 2 June. On Mr Pyke’s own evidence, negotiations were apparently complete with only the formalities to finalise.
Whether document signed was “added to”
41 The particulars of sale to the contract of 2 June contain some handwritten amendments.
42 It was alleged by VCP and Mrs Pyke that the contract was added to after execution in that the words in brackets “if applicable” were added to the words “Including GST.”
43 There is considerable doubt as to whether a change such as this would be material.
44 In any event, the evidence of Mr Burns was that he made each of the handwritten amendments (with the exception of the insertion of the date which was inserted by Mr Pickett) on Saturday 31 May following the telephone calls with Mr Lally and Mr Pyke described earlier. He specifically recalled deleting the words “plus GST if any” and inserting the words “including GST (if applicable).”
45 This evidence of Mr Burns was corroborated by Mr Pickett who specifically recalled Mr Burns providing him with the document after he had crossed out “plus GST if any” and inserted “including GST (if applicable).” This occurred after Mr Pyke had said that he did not want anything to do with the GST.
46 By way of contrast, both Mr and Mrs Pyke gave evidence that the words “if applicable” were not present when they signed.
47 The evidence of the Subway witnesses is consistent with the preponderance of the evidence that the GST issue was “bedded down” by 2 June. In these circumstances, there seems no reason at all as to why someone would want to insert “if applicable” as alleged.
48 Moreover, no suggestion was made to either Mr Burns or Mr Pickett that they had made such an alteration after 2 June which provides further reason for accepting their evidence.
49 It is also unlikely that any person would have a specific recollection of such an addition. Rather, the evidence of the Pykes appeared to be influenced by the fact that they retained a blank unsigned draft of the contract in circumstances where multiple copies of the contract were on file. Although generally blank and unsigned, the document retained contained the handwritten words “including GST” only. Mr Pickett said these words were in his handwriting and described the document as a “draft copy.”
50 In the light of all the evidence, including my general views as the evidence of the Pykes, I accept and prefer the evidence of Mr Burns and Mr Pickett. I am satisfied that no change was made to the 2 June contract as alleged.
Whether the offer was conditional
51 The Pykes alleged that their written offer was subject to an oral condition that the vendor provide its ABN number and quantify the GST component on the transaction.
52 However, the evidence of Mr Pyke was extremely vague and confused in relation to this allegation.
53 At one stage, Mr Pyke said that he told Mr Pickett that the GST component had to be “entered into the contract”. That Mr Pickett then said:
“he assured me that’s what they would do, they would go and endeavour to do that. I’d better not say it’d definitely be done, he said he would go to-endeavour to do that because it was up to Craig Burns to do that not Bradley Pickett but he don’t understand nothing about the GST component.” (emphasis added)
54 At other times he gave evidence that he “wanted” to claim back $120,000, it being unclear whether this “want” was the subject of any conversation on 2 June.
55 At its highest, then, the evidence was suggestive of a request or desire being made. The evidence did not establish that something in the nature of a “condition” was imposed by Mr Pyke.
56 There was also a lack of clarity as to precisely what the alleged condition was if it was a condition. Thus, the evidence was confused as to whether it was being suggested that the correct GST component had to be written into the contract or whether Mr Pyke was to be able to “claim back” $120,000 regardless of the correct amount of any GST.
57 The evidence of Mr Pyke, even on its own, does not support that the offer was made conditionally as alleged. Mrs Pyke did not recall details of the conversations on 2 June.
58 Moreover, the evidence of Mr Pickett was that the GST was not discussed at all on 2 June. This was consistent with the surrounding evidence that the GST issue was resolved by 2 June. The written document signed by Mrs Pyke provides for a price on a GST inclusive basis. This was consistent with the evidence of the Subway witnesses that the former deal based on a “plus GST” price was to be replaced by an “inclusive of GST” price given Mr Pyke did not want anything to do with the GST.
59 It is also highly unlikely that Mr Pyke, an experienced businessman, would let his wife sign a written offer in relation to a property for $1.2million without documenting that “condition” at the same time. It would also be expected that reference to such a condition would be made in the correspondence of “cooling off” of 4 June if a condition had really been imposed. However, that correspondence contains no such reference.
60 I therefore accept and prefer the evidence of Mr Pickett that GST was not discussed on 2 June. That evidence was clear and consistent with the surrounding objective evidence.
61 It follows that the written offer was not made subject to a verbal condition as alleged.
Whether there was communication of acceptance
oral
62 The evidence of Mr Burns was that he was informed by Mr Pickett on 3 June that he had met with the Pykes and had them sign on 2 June. Further that Mr Lally had also signed later on 2 June.
63 At around 10.30 a.m. on 3 June, Mr Burns called Mr Pyke to tell him the contract was signed. He told Mr Pyke that the offer was accepted. Mr Pyke then said “so it is signed?” and Mr Burns said “yes it is.”
64 It was only upon being told of such acceptance that Mr Pyke then said he wanted a tax invoice for $120,000 and insisted on the same despite being told that Mr Burns didn’t know what the GST component was but that there would be a tax invoice issued at settlement. Mr Pyke apparently did not accept this and demanded the tax invoice.
65 The evidence of Mr Pickett generally corroborated this evidence as he was present when Mr Burns spoke to Mr Pyke, though he suggested that he advised Mr Burns of the sale on the Monday night.
66 Mr Lally confirmed that he signed on the night of 2 June.
67 Mr Pyke denied Mr Burn’s account and maintained that he rang Mr Burns saying he wanted the GST component written down in the contract. Under cross examination he also said he had conversations about the issue of a tax invoice.
68 Mrs Pyke was busy on 3 June and her evidence took the matter no further.
69 The Pykes submit that I should prefer the evidence of Mr Pyke.
70 Firstly, the Pykes suggest that because of Mr Pyke’s demands for a tax invoice, which were tantamount to a threat to withdraw, there was likely to be a concern in Mr Burn’s mind such that he would not advise of an acceptance. I do not accept this submission. Rather any such threat would provide a strong incentive to advise of the acceptance and thereby “close the deal.”
71 The Pykes also point to the absence of any reference to this or any other conversation on 3 June in certain handwritten notes of Mr Burns. However, the evidence of Mr Burns was that these notes were only prepared from 4 June after the receipt of the “cooling off” correspondence. They were not prepared contemporaneously with events. Further, even on the evidence of Mr Pyke there were clearly telephone calls made on 3 June so that the notes are not a comprehensive record.
72 In my view there are good reasons to prefer the evidence of Mr Burns over that of Mr Pyke.
73 Firstly, the evidence of Mr Burns was highly probable. Thus, in the absence of some challenge to the evidence that the documents were signed on 2 June, it is highly likely that an estate agent would want to let the purchaser know that the “deal was done.” Even on Mr Pyke’s own evidence he conceded that telephone conversations occurred on 3 June. In such circumstances, it is highly improbable that Mr Burns would have kept the signing to himself.
74 It is also unlikely that the 4 June letter would be structured as it was with reference to the cooling off of a “contract” if no acceptance at all had ever been communicated to Mr Pyke. This is particularly so given Mr Pyke conceded that he spoke to Mr Caleandro prior to forwarding this letter.
75 Finally, although Counsel suggested that there was no entry in Mr Burn’s notes that he had made a phone call to Mr Pyke on 3 June, the evidence of Mr Burns to the effect that acceptance was communicated was not directly challenged under cross examination.
76 In all the circumstances, then, including my general assessment as to the reliability of the witnesses, I accept and prefer the evidence of Mr Burns. I thereby find that communication of acceptance took place on 3 June at which time the contract was complete.
77 It follows that the correspondence of 4 June cannot be effective as a withdrawal of offer as the contract was already concluded.
By post
78 In the light of my finding above, there is no need to consider the alternative position that there was acceptance of communication by post.
79 However, out of deference to Counsel’s submissions, I will consider this alternative submission.
80 The general rule is that a contract is not complete until acceptance of the offer is actually communicated to the offeror (as I have found occurred on 3 June). An exception to this is the postal rule which provides that, in certain circumstances, acceptance is complete as soon as a properly pre-paid and addressed letter is posted.[6] Such circumstances are where it was within the contemplation of the parties that, according to the ordinary useages of mankind, the post might be used as a means of communicating the acceptance.[7]
[6] And see Carter, Peden and Tolhurst, Contract Law in Australia, 5th edition at [3-30]
[7] Henthorn v Fraser [1892] 2 Ch 27
81 In this case, the Pykes accept that the post was contemplated as a means of communicating acceptance. The evidence of Mrs Burns that the letter of 3 June was prepaid and posted was also not the subject of any challenge. Nor was it suggested that the correspondence of 3 June was wrongly addressed. Rather, Counsel for the Pykes submitted that it was not contemplated that the post was to be directed to the solicitor, Frank Caleandro of Caleandro Guastalegname & Co. Counsel otherwise generally accepted the application of the postal acceptance rule.
82 The evidence of Mr Burns was that when he attended on the Pykes on 27 May he was told by Mr Pyke that he “didn’t do anything without relaying to Frank”. Accordingly , Mr Caleandro was inserted as the purchaser’s solicitor in the first contract of 27 May. Further, when Mr Pyke was later told on 31 May that the offer could be GST inclusive Mr Pyke said he “wanted to speak to Frank.”
83 The evidence of Mr Pyke was that prior to the signing of the first offer of 27 May he was asked what solicitor he used and he said “Frank Caleandro”. However, nothing was specifically said as to how acceptance would be communicated on 2 June and he did use other solicitors. Mrs Pyke’s evidence was that on 27 May she said that Mr Caleandro was “one of the people we use.”
84 The evidence of Mr Burns is consistent with the course of the transaction in that Mr Caleandro was clearly being consulted on an ongoing basis in relation to the transaction. The correspondence of 4 June also tends to confirm Mr Burn’s account given Mr Pyke states that “Frank Caleandro needs to inspect contract of sale.”
85 I therefore accept the evidence of Mr Burns that he was told that Mr Pyke did “not do anything” without Mr Caleandro.
86 Further, although I accept that there may be a distinction between “acting” and merely “advising” on a transaction, in my view it was contemplated in this case that Mr Caleandro was to be the purchaser’s solicitor for communications concerning the 2 June contract. This was consistent with the contract note of 27 May, as well as the conversations in May. The subsequent failure to insert Mr Caleandro in the 2 June contract was in my view an oversight only.
87 Accordingly, if it was necessary to consider, I would find that acceptance of the offer was also communicated by operation of the postal acceptance rule on 3 June.
Whether s32 has been breached
88 The evidence of Mr Pyke was that there were “no signatures” on the documents presented to him on 2 June. Mrs Pyke also gave similar evidence.
89 The evidence of Mr Pickett was that he was present when Mr Lally signed the s32 statement on 30 May. Further that he gave the Pykes a copy of the signed s32 prior to the signing on 2 June.
90 The evidence of Mr Burns was that Mr Lally attended his office on Friday 30 May to sign the s32 which formed part of the 2 June contract. Although he did not actually see Mr Lally sign it was unsigned before he came in and signed after he left. Mr Burns subsequently took possession of the signed s32 and gave it to Mr Pickett to take with him when he went to see the Pykes on 2 June.
91 The evidence of Mr Lally was that he signed the s32 statement on 30 May at the office of Ray White.
92 The evidence of Mr Pyke as to whether he read the documents given to him on 2 June was highly unsatisfactory. When asked how many pages he personally read he at one point said “I wouldn’t have a clue” though he later said he “probably looked at all of them because my missus had to sign.” When further pressed however he gave evidence that “I could have done anything, couldn’t I? I don’t know” and ultimately suggested: “I don’t know what I’ve done now.” Despite this he remained adamant that the s32 statement was not signed.
93 The evidence of Mrs Pyke was also unsatisfactory and she conceded that she “glanced” through the documents. Her evidence as to what the documents contained at the relevant time should also be informed by an examination of the documents. Thus, the written contract contains an acknowledgement above her signature that the purchaser was given a copy of the section 32 statement “signed by the Vendor” before the purchaser signed any contract. Her signature also appears under a clear statement that “the vendor’s statement required by section 32(1) of the Sale of Land Act 1962 is attached to, and included in, this contract.”
94 As mentioned earlier, she attempted to explain these acknowledgments by alleging that Mr Pickett could not get his client who was at the races or pub. I do not accept this explanation. Rather I accept the accuracy of the acknowledgment which was made at the time the events were fresh in the mind of Mrs Pyke.
95 It is also likely that the subsequent recollection of the Pykes is affected by their retention of an unsigned section 32 statement.
96 Having regard to the matters above, as well as my general views as the reliability of the witnesses, I therefore accept and prefer the evidence of the Subway witnesses. I find that a signed s32 statement was provided to the Pykes before Mrs Pyke signed the contract on behalf of VCP on 2 June.
97 It follows that the defence based on non-compliance with s32(1) of the Sale of Land Act is rejected.
Conclusion
98 I am satisfied that a concluded contract of sale was entered into between Subway and VCP on 2 June 2008.
99 I am also satisfied that a signed vendor’s statement pursuant to s32(1) of the Sale of Land Act was provided to VCP prior to execution of the contract on 2 June.
100 There will be judgment for Subway against VCP and Mrs Pyke in an amount of $120,000.
101 I will hear from Counsel on the final form of orders, including as to interest and costs.
effect that the offer was also subject to the conveyance of a certain pumping system and bore well were
withdrawn by Counsel in Closing.
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