Takhar v Kyren Pty Ltd - [2015] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TAKHAR AND ANOR v KYREN PTY LTD AND ORS
[2015] SADC 83
Judgment of His Honour Judge Barrett
3 June 2015
CONTRACTS - PARTICULAR PARTIES - VENDOR AND PURCHASER
The plaintiffs purchased an apartment from the defendant developer and sought to obtain a second car park for which they had contracted. That action has settled. The defendant sought against the First Third Party rectification of a written contract for the sale of another apartment alleging that the First Third Party had verbally agreed to purchase only one car park not two. The defendant also sought damages from its conveyancer, the Third Third Party alleging that he was negligent in not detecting an error in the written contract and failing to change the Community Plan.
Held: The defendant was mistaken in his belief that the First Third Party had agreed to purchase only one car park. There was no such agreement. The written agreement cannot be rectified. The conveyancer did not know of the defendant's belief until after settlement. He was not negligent. Claims by the defendant against the First and Third Third Parties dismissed.
Pukallus v Cameron (1982) 180 CLR 447; International Advisor Systems Pty Ltd v XYYX Pty Ltd [2008] NSWSC 2, considered.

TAKHAR AND ANOR v KYREN PTY LTD AND ORS
[2015] SADC 83

This is a dispute about the purchase of a car park associated with an apartment in the Alpha block of apartments on Frome Street Adelaide. The dispute is not now between the Plaintiffs on the one hand and the Defendant. That action has been resolved. The dispute is principally between the Defendant, Kyren Pty Ltd (through its sole director Mr Theo Samaras) the developer of the apartments, and the First Third Party, Mr Boris Balin, the purchaser of an apartment in the development. There is a second dispute between the Defendant and his conveyancer, the Third Third Party, through its principal Mr Peter Stokes. The principals of the second and third third parties respectively are the Defendant’s land agent, Ms Michele Alexandrou and the conveyancer, Mr Peter Stokes.
The primary dispute is one of fact. It is this. Did Mr Balin purchase from Kyren one or two car parks with the apartment he bought in August – September 2005? Mr Balin’s communications with Kyren for the purchase of the apartment were through Kyren’s land agent Ms Alexandrou. He never spoke to Mr Samaras. It is plain that the written contract for the sale and purchase of the apartment makes no reference to the number of car parks purchased. It is equally clear that the Community Plan referred to in the contract shows that two car parks passed with the apartment. Two other written contracts were executed at the about the same time. They were what have been referred to as a “license contract” and a “fitout contract”. Neither of these contracts refers to car parks. Kyren says that there was an oral agreement between Mr Balin and Kyren, mediated through the agency of Ms Alexandrou that only one car park was to be purchased with the apartment.
The parties
Before turning to the primary dispute I will briefly explain the involvement of the other parties. In 2008, some three years after the Balin purchase, the Plaintiffs purchased another apartment in the same block. The Plaintiffs required two car parks. Only one car park was allocated to their apartment in the Community Plan. Their written contract was therefore made conditional upon them being able to purchase a second car park. The Defendant sought to secure for the Plaintiffs Mr Balin’s second car park. By this time Ms Alexandrou was no longer the Defendant’s land agent. A Mr Ploubidis was then his land agent.
I accept that as of 2008 Mr Samaras believed that Mr Balin had purchased only one car park. For reasons I will explain, I also accept that Mr Balin believed he had purchased two. When each of these parties realised they had different beliefs about the number of car parks purchased by Mr Balin, the condition in the Plaintiffs’ contract could not be performed, at least not using the car park attached to Mr Balin’s apartment. The Plaintiffs sued the Defendant for the car park.
I understand the Plaintiffs and the Defendant have reached an accommodation. The Plaintiffs are no longer involved in the case. The Defendant has settled his dispute with his former land agent, Ms Alexandrou. The Defendant’s dispute with Ms Alexandrou’s company was, at least in part, that Ms Alexandrou had failed to perform her duty to the Defendant by failing to incorporate the oral agreement about the Balin car park, if there was an oral agreement, into the written contract. As a result of the settlement, neither Ms Alexandrou nor her company is any longer involved in the case as a party but Ms Alexandrou gave evidence for the Defendant. It was a condition of the Defendant’s settlement with her company that she give evidence.
Mr Peter Stokes’ company, the Third Third Party, is still involved in the case. The Defendant asserts that Mr Stokes, the conveyancer, failed to carry out his duty to the Defendant by not effecting an amendment to the Community Plan to remove one car park from Mr Balin’s unit and by also failing to include in the written contract the transfer of only one car park.
I return to the principal issue in the case. Did Mr Balin purchase one or two car parks with his apartment?
Background
In 2001 the Defendant purchased from the Adelaide City Council a property fronting 22-30 Frome Street, Adelaide, between North Terrace and Rundle Street. On that property he built two sub-ground level car parks and four levels of car parks above that. On top of the car parks, he built four levels of apartments. There were 46 apartments. The fourth or top level of car parks was for residents in the apartments. The lower levels were for public use with access from Frome Street. The building is bounded on the north, east and south sides by Vaughan Place.
On the north side Vaughan Place divides the Alpha Building from another building developed by Kyren which houses, amongst other things, the Palais Apartments. That building also incorporates car parks which are accessed from North Terrace.
On the eastern side, Vaughan Place divides the Alpha Building from, relevantly, the Elephant Hotel at the northern end. In the middle there is a laneway at right angles to Vaughan Place called Cinema Place which leads to the Palace Cinema complex at the eastern end. On the northern side of Cinema Place is a building which once housed the IMAX Cinema. That building had a store front facade in which Kyren set up a display of fittings and furnishings designed to illustrate the interiors of the apartments being constructed in the Alpha Building. The eastern side of the Alpha building is designed as the front. That side has a central entrance foyer flanked by shops.
On the southern side, Vaughan Place, or perhaps more correctly, a lane off Vaughan Place, divides the Alpha Building from the rear garden of the Exeter Hotel which fronts Rundle Street.
Kyren began constructing the Alpha Building in about 2002. It sold some of the apartments off the plan before construction was completed. The construction was completed in January 2005. The certificate of occupancy indicating the completion of construction is dated 28 January 2005.[1]
[1] Exhibit D1, Tab 15.
The apartments are on the top four floors, levels five to eight. This trial concerns only some of the apartments on the fifth and sixth levels which, at least at the eastern, or front, end, are identical in layout. On each level there are six single apartments along the northern and southern sides. The apartments on the northern and southern sides are mirror images of each other.
Mr Balin purchased apartment 510 which is on the south-eastern corner of the building. The apartment has a balcony on the very south-eastern corner which overlooks the back garden of the Exeter Hotel to the south. To the east the balcony looks towards Cinema Place. Several neighbouring apartments play some small part in the trial. The identically set out apartment 608 is directly above Mr Balin’s apartment 510. The mirror image of Mr Balin’s unit on the northern side of level 5 is number 509. Number 607 is an identically set out apartment above 509. Variations in amenity affected the asking prices for apartments. The apartments on the higher level commanded higher prices (we are not concerned with the apartments on levels 7 and 8 which are dearer and set out differently). Apartments on the southern side were vulnerable to noise from the adjacent Exeter Hotel, although it was said that noise from the Elephant Hotel also affected apartments on the northern side.
Prices varied according to the number of what have been referred to as “subsidiaries”. Subsidiaries means features included in the property being purchased. They include balconies, air conditioners, car parks and spaces in the car park for storage. The Community Plan provides that Mr Balin’s unit 510, came with five subsidiaries – one balcony, two air conditioners and two car parks. That unit did not include a storage area. While the Community Plan refers to the number of subsidiaries attaching to the apartments, the written contract between Kyren and Mr Balin does not, or at least the written contract for apartment 510 does not. Some contracts do refer to the number of subsidiaries being purchased. For example the contracts for the purchase of units 509[2] and 607[3] refer to the subsidiaries being purchased. Apartment 509 was sold off the plan in May 2003 for $600,000 with two car parks, one storage space and one balcony. That apartment is the mirror image of Mr Balin’s 510, but on the northern side. Apartment 607 was sold in February 2005 for $700,000 with one car park, one storage space and one balcony. That apartment is identical to 509 on the northern side but one floor up, directly above 509.
[2] Exhibit D1, p 310.
[3] Exhibit D1, p 313.
The terms of the oral negotiations between Mr Balin and Ms Alexandrou form the oral agreement alleged by the Defendant to have been concluded. This oral agreement is said to vary the written agreement and to call for the rectification of the written agreement. While Mr Samaras gave evidence of his conversations with his agent, Ms Alexandrou, he himself never spoke to Mr Balin. Mr Balin and Ms Alexandrou are the critical witnesses.
Discussion
Generally I prefer the account of Mr Balin. I explain why. I find Mr Balin’s account more likely than Ms Alexandrou’s. I think Mr Balin is in a better position to recollect what was said. This was a solitary contract from his point of view. It was the one for the purchase of his own apartment. Ms Alexandrou was negotiating many contracts, both for the Defendant and for other clients. I do not overlook the fact that such negotiations were part of her job and she brought to her evidence a familiarity with negotiations and a professional approach. However Mr Balin’s account fits in better with other known facts. He was able to support his account by thought processes that made sense. In some important respects Ms Alexandrou frankly acknowledged that she had no personal recollection of the subject but was surmising from known facts. I do not believe Ms Alexandrou was untruthful, but for reasons I will explain, I prefer Mr Balin’s account.
Ms Alexandrou says that her negotiations with Mr Balin took longer than usual, extending over about 4 weeks. She said the asking price for unit 510 was $625,000. Mr Samaras says the same. Mr Balin says the asking price was $690,000. I think Mr Balin is right about that and that Ms Alexandrou and Mr Samaras are mistaken. The only pricelist produced in court[4] shows an asking price of $690,000. Mr Balin says that that is the pricelist he was given by Ms Alexandrou. Neither Ms Alexandrou nor Mr Samaras can explain why that price is shown. I think that they have both concluded that the asking price was $625,000 because that is the price for which apartment 510 was sold off the plan in 2003.[5] That sale was not completed. Mr Samaras said that purchaser was refunded his deposit and no further sale of apartment 510 took place until Mr Balin’s purchase after the building was completed.
[4] Exhibit D1, p 109.
[5] See contract status list Exhibit D1, p 323.
The higher asking price in 2005 is, I think, explained by the fact that by then the apartments had been fully constructed and fitted out. Ms Alexandrou said that people will pay more for what they can see.[6]
[6] T152.
I find that the asking price in July/August 2005 was $690,000.
Negotiations
Central to the case is the discussion between Mr Balin and Ms Alexandrou about the number of car parks that he purchased. Mr Balin says that that discussion never led to a reduction in the price because he agreed to purchase only one car park. He says the discussion about car parks was brief. He says that before he was shown apartment 510 by Ms Alexandrou he was told that that apartment had two car parks. He says he told Ms Alexandrou that he probably did not need two car parks but he would have a look at the unit anyhow.[7] Ms Alexandrou told him he could choose one or two car parks. She told Mr Balin that a car park was worth about $30,000. Mr Balin says nothing more was discussed about car parks. He never negotiated the price down on the basis that he would have only one car park.
[7] T233.
Ms Alexandrou was adamant that on the second occasion when Mr Balin inspected the apartment, he said he wanted to purchase only one car park. She said she would seek Mr Samaras’ instructions on that proposal.[8] She said Mr Balin offered to pay $550,000 for one car park only. She eventually got instructions from Mr Samaras to accept that offer.
[8] T145.
Leaving aside for the moment the critical question of the car parks, I deal with the conflicting evidence about the negotiations as to price.
Mr Balin says that after he saw the asking price was $690,000 for apartment 510, he sought from his conveyancer the price paid for the purchase of the mirror image apartment, 509. He was told that the purchaser paid $600,000. That apartment had been sold off the plan in May 2003[9] but the settlement occurred two or three months before Mr Balin made his enquiry. Armed with that information Mr Balin says he offered Ms Alexandrou $640,000. That offer was refused at first and Mr Balin made enquiries about apartments elsewhere. Mr Balin said that some days later Ms Alexandrou came back to him saying her principal accepted the offer but he wanted to have two contracts – one for $440,000 and another for $200,000.
[9] See contract Exhibit P1, pp310-11.
Mr Balin says he discussed that counterproposal with his conveyancer. His conveyancer told him to have nothing to do with the two proposed contracts. Mr Balin considered that advice, but he wanted to accommodate the vendor to a degree, even if he did not understand why the proposal was being put. In any event he wanted some small proportion of the consideration to be withheld until blinds had been installed in the eastern bedroom. He therefore proposed that the contracts be drawn up so that one was for $500,000 and the other for $140,000. Ms Alexandrou agreed and the two contracts were drawn up by agents of the Defendant – Ms Alexandrou in the case of the $500,000 contract and either her or Mr Stokes for the fitout contract for $140,000. For reasons I will explain later I find that she, not Mr Stokes, prepared the fitout agreement.
Mr Samaras and Ms Alexandrou say that the fitout contract was for the purchase by Mr Balin of the furniture on display in apartment 510 at the time of the purchase and also furniture and fittings in the showroom display unit in the IMAX building.
The documents were signed a month apart, the first on 5 August and the second on 5 September 2005. Mr Balin denies that the $140,000 referred to in the fitout contract was never for the purchase of furniture or fittings. He had no need for additional furniture and never purchased or paid for any. He never purchased any from the IMAX display nor from unit 510. He brought with him his own furniture and had to move out of the way lounge furniture which was on display in unit 510. He said the furniture was eventually taken away. At first it was put in Kyren’s office on the ground floor of the Alpha building. Later it was relocated to the foyer on the seventh floor of the building. Mr Balin produced photos of the furniture on the seventh floor.
I accept Mr Balin’s evidence on that topic. His evidence was detailed and credible. By comparison the evidence of Mr Samaras and Ms Alexandrou that Mr Balin had purchased furniture and fittings was vague and unconvincing. There was no documentary support for the proposition. No one claims to have seen Mr Balin removing the property from, for example IMAX. Ms Alexandrou recalled no conversation with Mr Balin in which Mr Balin explained why he wanted furniture and fittings that could not be fitted into his unit.
Ms Alexandrou frankly admitted that she had no distinct memory about the furniture[10] and that the fitout contract had her “baffled”.[11] Mr Samaras plainly had no recollection of the details of the so called fitout.
[10] T180.
[11] See T184 and T189.
There is a further unconvincing aspect of Ms Alexandrou and Mr Samaras’ evidence about the negotiations and the contract. Ms Alexandrou simply cannot explain how she came to draw the principal contract showing a consideration of $500,000. She said that Mr Balin had stipulated that he would pay $550,000 with just one car park. Ms Alexandrou cannot now understand why the principal contract was not therefore for $550,000. She surmises that she must have decided to allocate $500,000 for the unit, $50,000 for a single car park and $90,000 for the fitout.[12] Mr Samaras says effectively the same.
[12] T39-41.
It was put to Mr Balin that it was his suggestion to ask for only $500,000 to appear on the contract so as to reduce his liability for stamp duty. He denied that proposition. I accept his denial. I accept his account of the discussions which led to the two contracts. That said, it is unclear to me what interest Ms Alexandrou or Mr Samaras had in drawing up the two contracts. Mr Samaras was not liable to pay the stamp duty. Mr Balin was. I am nevertheless completely satisfied that Mr Balin never purchased any furniture or fittings and that the initial proposal of a split of $440,000/$200,000 was Mr Samaras’ idea. Mr Balin’s agreement to a $500,000/$140,000 split was reached to accommodate Mr Samaras’ wishes.
Discussions about car parks
The discussions about the car parks are critical. Ms Alexandrou is adamant[13] that Mr Balin said he only required one car park and was only willing to pay for one car park. She says he negotiated down the price by sacrificing one car park.
[13] T145-151 and T173.
Mr Balin says that when he was about to inspect apartment 510 for the first time, and was told that it had two car parks. He said that he did not need two car parks, but that he would still have a look at the apartment.[14] Mr Balin said that Ms Alexandrou said it was his choice. He could have one or two car parks. He says Ms Alexandrou told him that a car park is worth about $30,000. He says nothing further was said about car parks.[15]
[14] T233.
[15] T239.
Ms Alexandrou says she may have told Mr Balin that car parks are worth about $30,000. She said she herself had probably paid $30,000 plus GST for her own car park in the same building.[16] If she did tell Mr Balin that a car park was worth $30,000 it is hard to see why she would surmise that she later understood that Mr Balin was paying $50,000 for his single car park. Mr Balin has a particular reason for remembering that Ms Alexandrou told him that the car parks were worth about $30,000 and that he could choose whether he had one or two car parks. He said he told his conveyancer these things. The conveyancer told him that he must have misunderstood the agent because car parks in that building were worth more than $30,000 and it was not simply a matter of him choosing one or two car parks. That question was governed by the Community Plan.
[16] T173.

I do not think that my accepting Mr Balin’s account of that aspect of the conversation about car parks is determinative of the critical discussions but my acceptance of his evidence does cast some further doubt on Ms Alexandrou rationalising that Mr Balin agreed to pay $50,000 for a single car park. Equally it might be unlikely that Mr Samaras would reduce the price of the apartment by $50,000 for the loss of a car park if in fact the car park was worth only $30,000.
Events after the oral agreement was reached point in different directions about whose account of the critical car park discussions is correct.
Mr Samaras and Ms Alexandrou point to the undisputed fact that Mr Balin was given only one car access card when he was given the “welcome pack” of materials when he took possession of the apartment. I accept that it was the practice of the vendors to give purchasers the number of access cards which corresponded with the number of car parks they had purchased. Mr Balin only discovered that he had only one card two years later in 2007 when he wanted to give a friend a card. His undoubted surprise at having only one car park is itself evidence that he believed that he was entitled to two. I say that his surprise is undoubted because what he did is powerful evidence of his belief. He went to the new agent Mr Ploubidis and asked for another card. There is a dispute between Mr Balin and Mr Ploubidis about the conversation on that topic. Mr Balin says that when he asked for another card, Mr Ploubidis told him that he would have to go to the council to get another card. Mr Ploubidis denies that, and says that Mr Balin asked for another card because he had noticed that some car parks were not being used. Mr Ploubidis said that he could not issue another card. He denied telling him to go to the council.
However I accept that Mr Balin did in fact go to the council and he was issued with another card by the council. Of course the Community Plan showed that he was entitled to two car parks. I prefer Mr Balin’s account of that exchange with Mr Ploubidis. The facts support his version.
Mr Balin points to other indicators that he had two car parks. Principal among them is that no alterations were made to the Community Plan to reduce his car parks to one. The removable sign on the car park bearing his apartment number is, to this day, affixed to the fence of the car park.
There is another event which Mr Blyth for Mr Balin submitted supports Mr Balin’s position. In November 2007 the Defendant sold apartment 508 to the Plaintiffs. The Community Plan had only one car park attached to that apartment. The Plaintiffs wanted two car parks. Mr Ploubidis negotiated the sale on behalf the Defendant. He drew the contract. The contract[17] is made conditional upon the Plaintiffs being able to purchase a second car park within the building for not more than $44,000. It was put to Mr Samaras that that condition meant he realised that the second car park for apartment 510 was not available for him to sell to the Plaintiffs. He replied that there were several “spare” car parks available for the Plaintiffs to purchase. While I see the logic of the propositions put to Mr Samaras, I do not think it is persuasive evidence that Mr Samaras believed that the second car park at apartment at 510 was not available for sale because Mr Balin had purchased it. I think that if Mr Samaras did turn his mind to how many car parks Mr Balin had purchased, he would probably have said one. I think that was possibly Ms Alexandrou’s belief and I expect she passed that belief on to Mr Samaras at about the time of the sale to Mr Balin. It appears that is what someone told Mr Stokes at about that time.
[17] Exhibit D1, tab 27 p 224.
I am satisfied that Mr Balin purchased two car parks. Although he told Ms Alexandrou that he did not need two car parks, I am satisfied that he never negotiated a reduction in the asking price on the basis that he would purchase only one of the two car parks attaching to the apartment. I accept his evidence of the negotiations between him and Ms Alexandrou. I reject her evidence and that of Mr Samaras. I found Mr Balin a truthful and reliable witness. I do not find either Ms Alexandrou or Mr Samaras untruthful, but I find their accounts are not reliable.
I find that Mr Balin’s account is more plausible. The asking price was $690,000 as he says and not $625,000 as Ms Alexandrou and Mr Samaras say. Mr Balin negotiated the price down from $690,000 to $640,000 by pointing out to the vendors that the neighbouring and comparable unit 509, with two car parks had sold for $600,000, albeit that it had been sold off the plan and cheaper on that account. While Mr Balin might not have thought he needed two car parks, he did purchase two. Mr Balin’s account is more plausible than the Defendant’s account. That account is that the asking price was $625,000 and that Mr Balin somehow negotiated the price down to $550,000 by shedding one car park worth $50,000 and paying a further $90,000 for furniture and fittings for which he had no use. As I put to Mr White for the Defendant, there would have been a logic to his client’s case if it had been that the asking price was $690,000 and that Mr Balin negotiated it down to $640,000 by shedding one car park worth $50,000. However that is simply not the Defendant’s case. It is not what Mr Samaras says and it is not what Ms Alexandrou says.
Legal issues between the Defendant (Kyren) and the First Third Party (Balin)
In respect of Mr Balin, the Defendant seeks rectification of the contract for the sale and purchase of apartment 510. It does so on the factual basis that there was an oral agreement between it and Mr Balin for the transfer of only one car park with the apartment. That remedy would be available if the written contract required amendment to reflect the agreement actually reached between the parties.[18]
[18] Pukallus v Cameron (1982) 180 CLR 447 at 452 and International Advisor Systems Pty Ltd v XYYX Pty Ltd [2008] NSWSC 2 per Brereton J at [21] and [22].
I have found that there was never such an agreement or common intention. Mr Balin never agreed to purchase only one car park. If Mr Samaras believed that only one car park had been sold, that belief was mistaken. In those circumstances it is not possible to order rectification of the written agreement.
The Defendant seeks rectification on the further bases that there was either a mutual mistake by Mr Samaras and Mr Balin, or a unilateral mistake by Mr Samaras and it is unconscionable for Mr Balin to take advantage of that mistake. I find first that Mr Balin was never mistaken. He always believed that he was purchasing two car parks and that is reflected in the written agreement. If Mr Samaras was mistaken, then Mr Balin was never aware of that mistake until years later when this dispute arose. There was nothing unconscionable about his behaviour. I find that Mr Balin negotiated with Ms Alexandrou for a reduction in the asking price of apartment 510 on the basis of the price paid for apartment 509, not on the basis of sacrificing a car park. There is therefore no relief available to the Defendant on the basis of mutual or unilateral mistake.
The dispute between the Defendant (Kyren) and the Third Third Party (Peter Stokes trading as Paul Denny and Associates)
In addition to seeking redress against Mr Balin, the Defendant seeks redress against his conveyancer, Mr Stokes. He asserts that Mr Stokes has been negligent. He asserts that at about the time of the execution of the written agreement for sale and purchase of Mr Balin’s apartment he told Mr Stokes that only one car park was being transferred and that he, Mr Stokes, should take steps immediately to amend the Community Plan to reflect that fact.[19]
[19] T37.
Ms Alexandrou said[20] that she told Mr Stokes before the contract was signed that only one car park was being transferred. She points out that Mr Stokes prepared the Form 1 statement.[21] He signed the statement. Ms Alexandrou said that although she told Mr Stokes that Mr Balin was purchasing only one car park, she understood that it might take some months to have the Community Plan amended accordingly.
[20] T155-T157.
[21] Exhibit D1, p153.
Mr Stokes denies that anyone told him that only one car park was going to be transferred.[22] However he does acknowledge that, some months after settlement took place, Mr Samaras told him that Mr Balin had purchased only one car park.[23] He said that at that stage he advised Mr Samaras that the Community Plan would have to be amended. It is unclear why he did not proceed to do that.
[22] T319 and T330.
[23] T329.
Mr Stokes did not draw the contract for sale and purchase. Ms Alexandrou did. Mr Stokes said he knew nothing about the fitout contract until 2014 when this dispute was before the court.
Discussion
The evidence about communications between Mr Samaras and Ms Alexandrou on the one hand and Mr Stokes on the other is not easy to follow.[24] Mr Stokes never really explained what steps, if any, he took to clarify with Mr Samaras and Ms Alexandrou what were the terms of the sale and purchase agreement or why the discrepancy between the written contract and the Community Plan was not noted and acted upon by him. He agrees that he was told some time after settlement took place that only one car park had been purchased and that the Community Plan would have to be amended. Nothing was done.
[24] Samaras T37-T38, Alexandrou T155, T200-T205 and Stokes T317-T321 and T329.
That said, I am satisfied that there was such confusion on the part of Mr Samaras and Ms Alexandrou about the sale and purchase agreement that neither of them clearly told Mr Stokes before settlement that only one car park was being sold. I have already referred to the confusion on their parts but I recapitulate it to illustrate what I mean. The Sale and Purchase Agreement showed a consideration of $500,000 for the apartment. Neither Mr Samaras nor Ms Alexandrou can explain why that is so. Mr Balin paid $640,000. He paid that sum into Mr Stokes’ trust account. I find Ms Alexandrou drew up the fitout contract. I accept Mr Stokes’ evidence that he knew nothing of the fitout agreement until 2014. I am nevertheless satisfied that Mr Balin never purchased $140,000 of fixtures or furnishings. I cannot tell when Mr Samaras or Ms Alexandrou came to believe that he had purchased those items, but whenever they did form that view, they were mistaken.
In these circumstances I accept Mr Stokes’ evidence that, at least before settlement, he had not been told that only one car park was being sold to Mr Balin. It may be that Mr Stokes was careless in not getting to the bottom of the problem when he was told sometime after settlement that only one car park had been sold. However if he had then taken the initiative and Mr Balin’s attention had been drawn to the claim by the Defendant that only one car park had been purchased, I am satisfied he would have disputed the assertion. I find that he believed he has purchased two car parks. I find that he did purchase two car parks. That is what his written agreement showed. In those circumstances I find that the Defendant’s claim in negligence against Mr Stokes is not proved.
Conclusion
I dismiss the Defendant’s claim against the First Third Party.
I dismiss the Defendant’s claim against the Third Third Party.