MATTER :Claim for an order for the dismissal of 1st and 2nd named first defendant's application under Section 138B of the Transfer of Land Act 1893 for the removal of caveat

BETWEEN: MARK DONALD WARREN
Plaintiff
AND
JOSEPH FRANCIS LAWTON
MOLLY ELIZABETH HALL
First Defendants
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Contracts - Collateral contract - Where no promissory statement - Turns on own facts

Contracts - Entire agreement declaration - not appropriate - Turns on own facts

Contracts - Implied term for peace and tranquillity - Term not so obvious to be implied - Implied term incapable of clear expression - Turns on own facts

Contracts - Implied term to not unreasonably withhold consent - Where consent withheld arbitrarily for collateral purpose - Turns on own facts

Equity - Fiduciary duty - Duty to act in good faith and fairly deal - Conflicting personal interest - No fiduciary relationship established - Turns on own facts

Equity - Rectification - Common intention - Mistake in contract - Where precise correction possible - Turns on own facts

Equity - Unconscionable dealing - Improvident transaction - Where no special disability - Turns on own facts

Evidence - Approach to inadmissible evidence where no objection is taken

Evidence - Credibility and reliability of witness - Turns on own facts

Property law - Alienation - Public policy of free alienability of land - Unlawful restraint on alienation - Where restraints make land inalienable - No valid collateral purpose - Turns on own facts

Property law - Sale order under s 126 of Property Law Act - Whether sale is more beneficial than division of land - Factors to consider in exercise of discretion - Turns on own facts

Property law - Caveats - Caveatable interest - Options and right of pre-emption - Turns on own facts

Tort - Trespass - Right of owner and tenant to sue for trespass - Part of claim statute barred - Vicarious liability for trespass - Whether direction or authorisation to do acts or direction or authorisation to do things leading to physical necessity to do acts - Damages awarded - Turns on own facts

Legislation:

Conveyancing Act 1929 (NSW) s 66G
Limitation Act 2005 (WA)
Partition Act 1878 (WA)
Property Law Act 1969 (WA), s 126, s 127
Town Planning Act 1928 (WA), s 20
Trade Practices Act 1974 (Cth)
Transfer of Land Act 1893 (WA), s 136B, s 137, s 140

Result:

Plaintiff's claim dismissed
Second named first defendant's counterclaim successful in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr M J McPhee
First-named First Defendant :     No appearance
Second-named First Defendant   :    Mr I A Morison
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     M J McPhee Barrister and Solicitor
First-named First Defendant :     No appearance
Second-named First Defendant   :    McAuliffe Legal
Second Defendant         :     No appearance

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

Attwater v Attwater (1853) 52 ER 131
Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51
Basely v Clarkson (1681) 83 ER 565
Bedford Properties v Surgo Pty Ltd (1981) 1 NSWLR 106
Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362
Bolton v Excell (Unreported, WASCA, Library No 930175)
Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396; (2011) 82 NSWLR 665
Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457
Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; (1969) 121 CLR 432
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
Commissioner of Stamp Duties v Carlenka (1995) 41 NSWLR 329
Elton v Cavill [No 2] (1994) 34 NSWLR 289
Giacci v Giacci Holdings Pty Ltd [2010] WASC 349
Grayson v Grayson (1922) St R Qd 155
Hall v Busst [1960] HCA 84; (1960) 104 CLR 206
Harvey v Walker (1945) 46 SR (NSW) 180
Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 (1984) 156 CLR 41
In Re Cockerill; Mackaness v Percival (1929) 2 Ch 131
In Re Ridley; Buckton v Hay (1879) 11 Ch D 645
JJ Savage & Sons Pty Ltd v Blakney [1970] HCA 6; (1970) 119 CLR 435
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1
John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc [2004] SASC 128; (2004) 88 SASR 334
Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392
Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
London and South Western Railway v Gomm (1882) 20 Ch D 562
Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621
Manchester Ship Canal v Manchester Racecourse Company [1901] 2 Ch 37
McCorquodale v Shell Oil (1932) 33 SR (NSW) 151
Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] NSWCA 327
New South Wales Medical Defence Union Ltd v Transport Industries Insurance Co Ltd (1986) 6 NSWLR 740
Nullagine Investments Pty Ltd v The Western Australian Club Incorporated [1993] HCA 45; (1993) 177 CLR 635
Pannizutti v Trask (1987) 10 NSWLR 531
Pata Nominees Pty Ltd v Durnsford Pty Ltd (1988) WAR 365
Pritchard v Briggs [1980] Ch 338
Pukallus v Cameron [1962] HCA 63; (1982) 180 CLR 447
Re Rosher (1884) 26 Ch D 801
Reuthlinger v MacDonald [1976] 1 NSWLR 88
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596
Segal v Barel [2013] NSWCA 92; (2013) 84 NSWLR 193
Stoneman v Lyons [1975] HCA 59; (1975) 133 CLR 550
W&K Holdings (NSW) Pty Ltd v Mayo [2013] NSWSC 1063
Western Metals Resources Ltd v Murrin Murrin East Pty Ltd [1999] WASC 257

Table of Contents

1. Summary
2. Arrangement of reasons for judgment
3. Events giving rise to these proceedings

3.1 Agreement to buy and sell interest in Lot 2706
3.2 The Contract of Sale
3.3 Lawton and Hall erect a dwelling
3.4 Warren erects a third dwelling
3.5 Lawton agrees to transfer his interest to Hall
3.6 Hall causes Registrar to issue s 138B notice
3.7 Relationship between Warren and Hall further deteriorates

4. Lawton abides court decision
5. Evidence

5.1 Treatment of inadmissible evidence
5.2 Credibility and reliability of Warren
5.3 Credibility and reliability of Hall
5.4 Credibility and reliability of Lawton
5.5 Other witnesses

6. Value of Lot 2706 and undivided one-twentieth share

6.1 Value in September 1983 of Lot 2706
6.2 Value in September 1983 of interest acquired by Lawton and Hall
6.3 Value of Lot 2706 at trial

7. Hall's rectification claim

7.1 Elements of rectification
7.2 The defendants' evidence
7.3 Warren's evidence
7.4 Warren and defendants agreed on Lawton Hall Lot
7.5 Common intention was exclusive use area was Lawton Hall Lot
7.6 Mistake was as to the plan not the exclusive use area
7.7 Precise correction needed

8. Hall's case that clauses of contract are a restraint on alienation

8.1 Principle of unlawful restraint on alienation
8.2 Some principles relating to lawfulness of restraints on alienation
8.3 Restraints make the one‑twentieth share substantially inalienable
8.4 Overall no valid collateral purpose
8.5 Clauses 6, 13, 14 and 15 are an unlawful restraint on alienation

9. Hall claims breach of peace and tranquillity collateral contract and implied term

9.1 No collateral contract
9.2 No implied term of tranquillity
9.3 Not appropriate to decide if collateral contract or implied term breached

10. Hall claims implied term - transfer of joint tenancy

10.1 Clause 14 - no alteration of joint tenancy without consent
10.2 Hall request was under cl 14 not cl 13
10.2 The transfer of joint tenancy term should be implied
10.4 Hall requests alteration of joint tenancy
10.5 Warren stipulates conditions of consent
10.6 Warren unreasonably withheld consent to alteration of joint tenancy
10.7 Relief consequent upon consent unreasonably withheld

11. Hall claims unconscionable dealing by Warren

11.1 Principle of unconscionable dealing
11.2 Hall's alleged special disability
11.3 Alleged constitutional disadvantages
11.4 Alleged situational disadvantages
11.5 Hall was not under a special disability
11.6 Not appropriate to decide if Warren exploited special disadvantage

12. Hall claims Warren breached fiduciary duty

12.1 Warren not agent of Lawton and Hall
12.2 Warren did not owe fiduciary duties to Lawton and Hall

13. Hall's claim in trespass

13.1 Issues in trespass claim
13.2 Right to sue for trespass
13.3 Limitation period
13.4 Vicarious liability for trespass
13.5 Use of access way by Lamperd
13.6 Use of access road by blueberry pickers
13.7 25 August 2011 cleaning up
13.8 The fence

14. Hall claims sale under Property Law Act s 126(2)

14.1 Property Law Act s 126(2)
14.2 Meaning of more beneficial
14.3 Sale is more beneficial than partition
14.4 Sale is more beneficial than status quo
14.5 Non-economic benefits
14.6 Economic benefits
14.7 Discretion to order sale
14.8 Statutory order for sale and pre‑emption agreements
14.9 Clause 13 (if valid) would preclude order for sale
14.10 No power to order Warren have right to purchase property
14.11 Division of proceeds of court ordered sale

15. Warren's claim to maintain caveat

15.1 Caveatable interest alleged by Warren
15.2 Option creates proprietary interest but right of pre‑emption does not
15.3 Clause 13 does not create a caveatable interest
15.4 No inquiry into loss caused by caveat

16. No declaration that Contract of Sale is the whole agreement

LE MIERE J:

1. Summary

The plaintiff, Mr Warren agreed to sell to the first defendants, Mr Lawton and Ms Hall, who I will sometimes refer to as the defendants, an undivided one‑twentieth share of Lot 2706, a rural land holding of about 80 ha near Margaret River. They agreed that Ms Hall and Mr Lawton would have the exclusive use and occupation of an agreed area and Mr Warren would have the exclusive use and occupation of the remainder of Lot 2706. Mr Warren, Mr Lawton and Ms Hall signed an agreement (the Contract of Sale).
The Contract of Sale included clauses to the following effect. First, Mr Warren shall be entitled to mortgage the whole of the land (cl 6). Secondly, Ms Hall and Mr Lawton shall be entitled to the exclusive use and occupation of the land coloured green on a plan attached to the Contract of Sale and Mr Warren shall be entitled to the exclusive use and occupation of the rest of the land (cl 9). Thirdly, each party shall be entitled to erect improvements on their exclusive use area which improvements shall remain the property of the party erecting them and may be removed at any time (cl 10). Fourthly, if Mr Lawton and Ms Hall wish to sell their undivided one‑twentieth share Mr Warren shall have an option to purchase it at a price equal to one‑twentieth of the unimproved market value of the whole of Lot 2706 (cl 13). Fifthly, Mr Lawton and Ms Hall shall hold their undivided one‑twentieth share as joint tenants and not alter the joint tenancy without the written consent of Mr Warren (cl 14). Sixthly, upon the death of the survivor of Mr Lawton and Ms Hall they shall be deemed to have given Mr Warren notice of intention to sell giving rise to his option to purchase (cl 15).
In 1995 Ms Hall and Mr Lawton agreed that Mr Lawton's interest in Lot 2706 be transferred to Ms Hall. Ms Hall requested that Mr Warren consent to the transfer and remove the caveat he had lodged over Ms Hall and Mr Lawton's undivided one‑twentieth share claiming an interest as optionee. Mr Warren consented to the transfer upon terms in a deed of assignment drafted by his solicitors. Ms Hall did not agree and did not execute the deed of assignment. Mr Warren did not withdraw his caveat and Ms Hall has not been registered as the sole proprietor of the undivided one‑twentieth share.
The relationship between Mr Warren and Ms Hall deteriorated. In October 2009 Ms Hall caused the second defendant, the Registrar of Titles, to issue to Mr Warren a notice under s 138B of the Transfer of Land Act 1893 (WA) to the effect that unless Mr Warren obtained from the court an order extending the operation of the caveat within 21 days the caveat will elapse. Mr Warren applied by originating summons for the operation of the caveat to be extended (the caveat proceedings). On 4 November 2009 the court ordered that the operation of the caveat be extended until further order. The caveat proceedings remain adjourned.
On 16 March 2010 Mr Warren commenced this action. Mr Warren initially sought an order dismissing the defendants' application under s 138B of the Transfer of Land Act for the removal of the caveat or alternatively an order that the Registrar of Titles dismiss the defendants' application for the removal of the caveat. Mr Warren also sought a declaration that he has a caveatable interest in the defendants' undivided one‑twentieth share of Lot 2706. Mr Warren subsequently amended his claim to also claim a declaration that the Contract of Sale represents the whole of the agreement between himself and the defendants for the sale and purchase of the undivided one‑twentieth share.
Ms Hall has brought a counterclaim in which she seeks a range of relief based on numerous causes of action. In his opening address counsel for Ms Hall said that Ms Hall has 10 causes of action. The first cause of action, as counsel described it, is that Mr Warren has no caveatable interest in the undivided one‑twentieth share. The second is that Mr Warren breached a collateral contract, or an implied term of the Contract of Sale, that, other than as required by law, Mr Warren would do nothing on Lot 2706 that would affect the peace and tranquillity of the Lawton Hall exclusive use area by clearing bush, generating noise and dust and encouraging or permitting members of the public, guests and tenants to use the access way to the Lawton Hall exclusive use area. Thirdly, Mr Warren breached an implied term of the Contract of Sale that he would not unreasonably withhold his consent to an alteration of the joint tenancy of the undivided one‑twentieth share. Fourthly, Ms Hall sought a declaration that the rights under cl 13 of the Contract of Sale, that is the right of first refusal or conditional option have expired. Ms Hall does not press that claim. Fifthly, Ms Hall claims rectification of the Contract of Sale to provide that the defendants be entitled to the exclusive use and occupation of an area which she describes as the Lawton Hall Lot in substitution for the green area on the plan attached to the Contract of Sale. Sixthly, Ms Hall says that Mr Warren unconscientiously took advantage of her special disadvantage by causing her to sign the Contract of Sale which contained terms which are unfair, unjust and unreasonable. Seventhly, Ms Hall says that Mr Warren was the purchasing agent of herself and Mr Lawton and as such or alternatively in all the circumstances Mr Warren owed her and Mr Lawton a fiduciary duty which he breached by charging them a price for the undivided one‑twentieth share that was in excess of its fair market value and causing them to sign a written agreement that contained terms that were unfair, unjust and unreasonable. Eighthly, Ms Hall says that the clauses of the Contract of Sale relating to Mr Warren mortgaging the whole land, giving him a right of first refusal (or conditional option), requiring his consent to alteration of their joint tenancy and providing that he may exercise his option to purchase on the death of the survivor of Mr Lawton and Ms Hall are an unlawful restraint upon Ms Hall's rights of alienation of her interest in the undivided one‑twentieth share and should be set aside. Ninthly, Ms Hall claims that by various actions of Mr Lawton or his tenant or invitees he has trespassed on Ms Hall's exclusive use and occupation area. Tenthly, Ms Hall seeks an order for sale of lot 2706 under s 126(2) of the Property Law Act 1969 (WA).
For the reasons which follow I find:
1.The Contract of Sale should be rectified by providing that the Purchasers are entitled to the exclusive use and occupation of the Lawton Hall Lot.
2.Clauses 6, 13, 14 and 15 of the Contract of Sale are an invalid restraint on alienation and unenforceable.
3.There is no collateral contract, or implied term, that except as required by law the Vendor would do nothing on Lot 2706 that would affect the peace and tranquillity of the Lawton Hall Lot.
4.If, contrary to my finding, cl 14 is enforceable, it is subject to the proviso that the Vendor will not unreasonably withhold his consent.
5.Mr Warren did not engage in unconscionable dealing.
6.Mr Warren did not breach any duties owing to Mr Lawton and Ms Hall as a purchasing agent or any fiduciary duties.
7.Mr Warren is liable for some acts of trespass on the Lawton Hall Lot.
8.It should be ordered pursuant to Property Law Act s 126(2) that Lot 2706 be sold and the proceeds divided between Mr Warren and Ms Hall.
9.Mr Warren does not have a caveatable interest in the Lawton Hall undivided one‑twentieth share in Lot 2706 and his caveat should be removed.
10.There should be no declaration that the Contract of Sale represents the whole of the agreement between Mr Warren and Mr Lawton and Ms Hall for the sale and purchase of the undivided one‑twentieth share in Lot 2706.

2. Arrangement of reasons for judgment

Before considering those causes of action or claims I will outline the events giving rise to these proceedings. I will then make some observations about the quality of the evidence adduced and some findings about the credibility and reliability of the principal witnesses. I will then make some findings about the value of Lot 2706, the interest purchased by Mr Lawton and Ms Hall in 1983 and the effect of the terms of the Contract of Sale on the value of that interest. Those matters are referred to by the parties in relation to Ms Hall's claim based on unconscionable dealing by Mr Warren and the issue of whether cls 6, 13, 14 and 15 of the Contract of Sale are an unlawful restraint on alienation.
In considering the claims advanced by Mr Warren and Ms Hall I will first set out my reasons for finding that the Contract of Sale should be rectified to provide that Mr Lawton and Ms Hall are entitled to the exclusive use and occupation of the Lawton Hall Lot because Ms Hall's claim in trespass depends upon that finding. I will then set out my reasons for finding that cls 6, 13, 14 and 15 are an invalid restraint on alienation and unenforceable because that finding is critical to my finding that the court should order a sale of Lot 2706 pursuant to s 126(2) of the Property Law Act and also makes it strictly unnecessary to decide whether cl 14 is subject to the proviso that Mr Warren will not unreasonably withhold his consent to an alteration of the joint tenancy. I will then give my reasons for finding that there is no collateral contract or implied term that except as required by law Mr Warren will not do anything on his exclusive use area to interfere with the peace and tranquillity of the Lawton Hall Lot. I will then give my reasons for finding that if cl 14 is enforceable it is subject to the proviso that Mr Warren would not unreasonably withhold his consent to an alteration of the joint tenancy. Next, I will give my reasons for finding that Mr Warren has not engaged in unconscionable dealing and has not breached any duties as purchasing agent or any fiduciary duty owed to Mr Lawton and Ms Hall. I will then set out my reasons for finding that Mr Warren is liable for some acts of trespass. I will then set out my reasons for ordering pursuant to Property Law Act s 126(2) Lot 2706 be sold and the proceeds divided between Mr Warren and Ms Hall. I will then set out my reasons for finding that if, contrary to my finding, cl 13 of the Contract of Sale is enforceable it does not give rise to a caveatable interest and on that ground Mr Warren should remove his caveat. Finally, I will give my reasons why there should be no declaration that the Contract of Sale represents the whole of the agreement between Mr Warren and Mr Lawton and Ms Hall for the sale and purchase of the undivided one‑twentieth share.

3. Events giving rise to these proceedings

The events giving rise to these proceedings go back to the negotiation of the sale by Mr Warren to Mr Lawton and Ms Hall of the undivided one‑twentieth share of Lot 2706 in 1983 and extend to 2013 when Mr Warren's contractor erected a fence along the disputed boundary between his exclusive use area and the Lawton Hall exclusive use area. In outlining these events I will leave the resolution of the most hotly contested facts until later in these reasons.

3.1 Agreement to buy and sell interest in Lot 2706

Mr Lawton was born in the United States of America and immigrated to Australia in 1971. He met Mr Warren in the late 1970s when they were both school teachers in Bunbury and they became friends. Mr Lawton met Ms Hall, who was also a school teacher, in the early 1980s. They started living together in Fremantle and later moved to Busselton where they bought a house jointly. In 1983 Mr Lawton and Ms Hall decided to buy some land around Margaret River to build a dwelling on and retire to someday. They looked at various places but found that a good supply of water was almost always a problem. Mr Lawton mentioned this to Mr Warren and Mr Warren said he might consider doing some kind of land deal. Mr Warren was the registered proprietor of a rural land holding of about 80 ha (Lot 2706) within the Forest Grove locality, south of Margaret River. Mr Warren lived on the property and Mr Lawton and Ms Hall visited him at his home on the property from time to time. Mr Warren subsequently identified an area on his property that had an access road from Sebbes Road and a pond where water would be plentiful.
Mr Warren agreed to sell an undivided one‑twentieth share of Lot 2706 to Mr Lawton and Ms Hall and that they should have the exclusive use and occupation of an agreed area. The area was walked over and agreed upon by Mr Warren and Mr Lawton. Ms Hall was present at some discussions with Mr Lawton and Mr Warren but the discussions leading to the agreement were principally between Mr Warren and Mr Lawton. There is a difference between Mr Warren on the one hand and Mr Lawton and Ms Hall on the other about the boundaries of the agreed area for the exclusive use and occupation of Mr Lawton and Ms Hall. I will deal with that issue later in these reasons.
Mr Warren engaged a solicitor, Mr Granich, to draw a Contract of Sale. Mr Granich produced a draft contract which was provided to Mr Lawton and Ms Hall. The Lawton Hall exclusive use area is described as the area coloured green on the plan attached to the contract. The plan was hand drawn by Mr Warren. It has a scale of 1:7,500. The boundaries of the Lawton Hall exclusive use area are straight lines with distances written in. Mr Warren says the plan was intended and agreed to be a precise designation of the Lawton Hall exclusive use area. Ms Hall says that the plan was intended and agreed to be an approximate or flexible depiction of the agreed exclusive use area. I will deal with that issue later in these reasons. Mr Lawton and Ms Hall went through the draft and asked Mr Warren some questions about it. They were satisfied with Mr Warren's answers and agreed to proceed with the contract. Mr Lawton and Ms Hall attended the offices of Mr Granich with Mr Warren and the three of them there signed the Contract of Sale dated 8 September 1983 by which Mr Warren agreed to sell to Mr Lawton and Ms Hall as joint tenants an undivided one‑twentieth share of Lot 2706. On 13 October 1983 Mr Lawton and Ms Hall were registered as proprietors of the undivided one‑twentieth share.

3.2 The Contract of Sale

Clause 6 of the Contract of Sale provides that Mr Warren may mortgage the whole of Lot 2706 to the extent of two‑thirds of its market value.
Clause 9 of the Contract of Sale provides that Mr Lawton and Ms Hall shall be entitled to the exclusive use and occupation of that portion of Lot 2706 marked green on the plan annexed to the Contract of Sale (the green area) and that Mr Warren shall be entitled to the exclusive occupation and use of the remainder of Lot 2706 which was coloured red on the plan. Clause 10 provides that each party shall be entitled to erect improvements on their exclusive use area which shall remain the property of that party and they may be removed by that party at any time.
Clause 13 of the Contract of Sale provides that if Mr Lawton and Ms Hall wish to sell their undivided one‑twentieth share they shall give written notice to Mr Warren who shall have an option to purchase that share on the terms specified. The price, in the absence of agreement, shall be one‑twentieth of the unimproved market value of the whole of the land. A deposit of 25% is to be paid with the notice of exercise of the option. The balance of the purchase price is payable by three equal consecutive annual instalments commencing 12 months from the date of the payment of the deposit. Upon payment of the deposit Mr Lawton and Ms Hall's interest in the one‑twentieth share shall be transferred to Mr Warren and the balance of the purchase money together with interest is to be secured by a mortgage over the whole of the land. Mr Warren is to pay interest on the balance of the purchase price at the rate charged by the R&I Bank on secured overdrafts. Possession of the undivided one‑twentieth share to be given to Mr Warren on settlement.
Clause 14 provides that Mr Lawton and Ms Hall will not alter their joint tenancy without the written consent of Mr Warren. Clause 15 provides that upon the death of the survivor of Mr Lawton and Ms Hall they shall be deemed to have given Mr Warren the notice of intention to sell referred to in cl 13 and Mr Warren shall have the option to purchase referred to in cl 13.

3.3 Lawton and Hall erect a dwelling

Mr Lawton and Ms Hall cleared a small area in their exclusive use area and in 1984 erected a simple shed or cabin. They used the cabin as a holiday cabin or weekender because there was no power and only a small rainwater tank. In 1988 the cabin was connected to electricity. Mr Lawton and Ms Hall constructed the dwelling on what they understood was their exclusive use area. They understood their area included a dam at the south west corner, a creek, the driveway or access road from Sebbes Road to their use area and an internal road (west road) which together with the access road formed the western boundary of what they understood was their exclusive use area (the Lawton Hall Lot). However, a survey recently prepared shows that the dam and the west road are outside the green area, that is the area designated by the plan attached to the Contract of Sale as the Lawton Hall exclusive use area.

3.4 Warren erects a third dwelling

In 1991, without prior consultation with Ms Hall and Mr Lawton, Mr Warren erected a house on his exclusive use area about 400 m west of Mr Lawton and Ms Hall's cabin. Mr Lawton and Ms Hall were unhappy about the erection of that house and told Mr Warren so. In about 1994 Mr Lawton and Ms Hall applied for permission to build an ablution block to their cabin. The Shire of August Margaret River initially refused permission on the ground that the house erected by Mr Warren in 1991 was a second dwelling on Lot 2706 and only two dwellings were permitted.
Since 1993 Mr Warren has leased the second dwelling erected on his exclusive use area to Mr Lamperd. Ms Hall says that Mr Lamperd and his family have trespassed on her exclusive use area, particularly the access road from Sebbes Road, and Mr Warren is liable for that trespass.

3.5 Lawton agrees to transfer his interest to Hall

In about August 1995 Ms Hall's relationship with Mr Lawton came to an end and Mr Lawton returned to the United States. As part of the settlement of their affairs and division of property they agreed that Mr Lawton's interest in Lot 2706 be transferred to Ms Hall. Ms Hall asked Mr Warren to consent to the transfer of Mr Lawton's interest to her and that he remove the caveat he lodged in 1990 claiming an interest as optionee in the one‑twentieth undivided share of Mr Lawton and Ms Hall. There is a difference between Ms Hall and Mr Warren to which I will refer later in these reasons concerning how Ms Hall initially sought Mr Warren's consent. On 29 August 1995 Mr Warren by letter to Ms Hall stated that he did not wish to exercise his option under the Contract of Sale and consented to the transfer upon terms. Ms Hall received a signed transfer document from Mr Lawton but was unable to register the transfer because of Mr Warren's caveat. Mr Warren retained solicitors who requested that Ms Hall sign a deed of assignment to permit the transfer to proceed. Ms Hall declined to sign the proposed deed of assignment because she was concerned the deed adversely affected her rights. The matter dragged on over many years. The matter was complicated by difficulties with the property and a dispute that arose with the Shire of Augusta Margaret River concerning Ms Hall's dwelling being an illegal dwelling. There were also attempts to subdivide. There were changes of solicitors. Ms Hall has not been registered as the sole proprietor of the one undivided twentieth share.

3.6 Hall causes Registrar to issue s 138B notice

In 2009 there were discussions between Ms Hall's current solicitor, Mr McAuliffe, and Mr Warren and his solicitors concerning the future of Ms Hall's interest in Lot 2706.
Ms Hall lodged a transfer of Mr Lawton and Ms Hall's joint interest to Ms Hall alone and caused the Registrar of Titles on 20 October 2010 to issue to Mr Warren a notice under s 138B of the Transfer of Land Act to the effect that unless Mr Warren obtained from the court an order extending the operation of the caveat within 21 days the caveat will elapse. The court subsequently granted an extension of the caveat until further order. Mr Warren then commenced this action.

3.7 Relationship between Warren and Hall further deteriorates

The relationship between Ms Hall and Mr Warren has further deteriorated since this action commenced. At some time after Mr Lawton and Ms Hall acquired their interest in Lot 2706 Mr Warren planted a walnut orchard on his exclusive use area and later replanted it with blueberries. Mrs Warren said that the blueberries are directly down from the Warren residence, probably about 200 to 250 m from the house. Mrs Warren said that they are a fair way away from the dam near the Lawton Hall dwelling. Mr Warren invites customers to come onto the blueberry patch and pick blueberries. Ms Hall says that people have travelled down her access road to get to the blueberries and Mr Warren is liable for that trespass.
On 25 August 2011 Mr Warren instructed a contractor to clear or clean up a strip of bush about 30 m wide adjoining the access track to Sebbes Road. The area extended from Sebbes Road at the northern end to a point about 20 m from Ms Hall's dwelling. Ms Hall says that in the course of carrying out the clearing or cleaning up Mr Warren's contractor trespassed onto the access road which forms part of Ms Hall's exclusive use area with equipment including a bulldozer. Ms Hall says she was greatly distressed by this trespass.
In August 2013 Mr Warren instructed a contractor to construct a fence along the surveyed line of the western boundary of the green area which is inside the Lawton Hall Lot, that is the area which Ms Hall says is her agreed exclusive use and occupation area. The fence passes between Ms Hall's two water tanks cutting access to the western most water tank. The fence also cuts off the south western corner of Ms Hall's circular road as it intersects the access track. Ms Hall says that as a result of the construction of the fence she cannot drive in a circular route around her house, she has no access to the bush area at the rear of her exclusive use area other than by walking through dense bush and she has no access to the dam unless walking through the bush.

4. Lawton abides court decision

Mr Lawton has played no active part in this action. In an affidavit sworn on 12 September 2013 Mr Lawton said that he does not wish to be involved in this action or counterclaim and will abide by whatever decision the court makes. At the trial Mr Lawton gave evidence by video link from the United States but otherwise played no active part in the trial. Ms Hall is the active defendant and the claimant in the counterclaim.

5. Evidence

Counsel for Ms Hall, Mr Morison, attacked the credibility of Mr Warren. Counsel for Mr Warren, Mr McPhee, attacked the reliability of the evidence of Ms Hall. Before addressing the issue of credibility and reliability, it is necessary to make some observations about the quality of some of the evidence adduced.

5.1 Treatment of inadmissible evidence

Ms Hall gave her evidence‑in‑chief by way of a written statement. Much of her evidence concerning the making of the agreement by Mr Lawton and her with Mr Warren is hearsay, speculation, argument or vague assertions conclusionary in nature. Mr Warren's witness statement similarly contains matters of argument or assertions conclusionary in nature. The trial was run on the basis of some idiosyncratic view of both counsel as to the applicable rules of evidence and the evidence was admitted without objection notwithstanding that much of it would have been ruled inadmissible had objection been taken.
Cross on Evidence, (online ed), advances a number of propositions concerning the evidentiary status of evidence tendered to which objection could successfully have been taken but no objection was in fact taken and the evidence was admitted. One proposition at [1660] is that if one party by its conduct at the trial has led the other to believe that evidence, though hearsay, may be treated as evidence of the facts stated, and the other in reliance on that belief has refrained from adducing proper evidence, the former party is precluded from objecting to the use of the evidence to prove the facts stated. Another proposition at [1665] is that if evidence, admitted without objection, is 'not legally admissible in proof of any issue', it may, once in, be used 'as proof to the extent of whatever rational persuasive power it may have'. I will use the evidence admitted without objection as proof to the extent of whatever rational persuasive power it may have.

5.2 Credibility and reliability of Warren

Mr Morison put forward 12 reasons why Mr Warren was not a credible witness. A number of the criticisms made by Mr Morison are either not made out or are not of great significance. However, a number of the criticisms are valid and I find that in a number of respects Mr Warren was not a credible witness.
The first point made by Mr Morison is that Mr Warren failed to discover discoverable documents, discovered documents only when he decided they would advance his case and gave inconsistent and contradictory answers when pressed about why he did not discover the documents.
Ms Hall's case in relation to her claim of unconscionable dealing is that she was at a special disadvantage and that Mr Warren took advantage of that special disadvantage and acted unconscionably. Ms Hall argues, amongst other things, that Mr Warren was a real estate agent with much greater knowledge and expertise in legal and property matters than her. In essence, Mr Warren maintained that in September 1983 he was the licensee of the Leeuwin Realty real estate business that was managed and operated by Ms Elaine Robinson but he worked full time as a school teacher. The nature and extent of Mr Warren's real estate agent activities were in issue. On 9 August 2010 Mr Warren swore an affidavit of discovery. The list of documents did not contain any tax returns. There were subsequent arguments about discovery. On 29 June 2015 Ms Hall requested from Mr Warren further and better discovery including discovery of tax returns. On 28 July 2015 Mr Warren provided a further and better list of documents. The list stated that specified documents including tax returns as at 1983 'do not exist, either having been destroyed or lost due to the passage of time or did not ever exist or is not a document or is not in the possession, custody or power of Mr Warren'.
At the start of his testimony Mr Warren's counsel produced to him documents which Mr Warren verified to be two letters from the Education Department relating to his employment as a school teacher and a copy of his income tax return from 1 July 1983 to 30 June 1984. The following day in the course of cross‑examination Mr Warren produced from a bag the original tax return together with financial statements for the year ended 30 June 1984. None of those documents were discovered by the 28 July 2015 list of documents. The documents were significant because they bore upon the cross‑examination of Mr Warren about his income as a school teacher and as a real estate agent in August and September 1983.
Mr Warren gave unsatisfactory explanations for his failure to include the documents in the 28 July 2015 list. Mr Warren agreed that in the 28 July 2015 list he had stated that the tax return did not exist. He said it was not a lie but an omission. He said that he had found the document and supplied it to his counsel. He then said he did not know when he had found it. He then said that he found the document before 28 July. It was put to Mr Warren that his statement in the 28 July 2015 list was that the document did not exist but that in fact he had it in his possession and so he must have known he was not telling the truth when he signed the list. Mr Warren responded, 'I didn't know I was not telling the truth. I didn't know that it wasn't in'. He said he did not have an explanation for not knowing that the document was not in the list. Later, Mr Warren agreed that at the time he swore the affidavit of discovery on 13 August 2010 he knew that one matter that was in issue in the action was his status as a real estate agent and Ms Hall's status as a school teacher. When he was asked why he didn't include in his affidavit of discovery his tax returns as at 1983 he said he didn't have that document at that time. He said that it was in his shed in rotting boxes of old records and he didn't know it existed. He said that he went through all of the boxes and had not found that document. Then Mr Warren said that he went through the boxes as thoroughly as he could and did not know about the existence of the tax return at the time and thought it had been destroyed.
I find that Mr Warren's explanation for why the tax return and financial statements were not included in the 28 July 2015 list, notwithstanding that he had found the document before then and he produced the documents at the commencement of his testimony, is unsatisfactory. His evidence about the matter was not credible.
The second credibility point concerns Mr Warren's failure to disclose the Lawton Hall dwelling when he applied in 1991 for Shire approval for the construction of a third dwelling on Lot 2706. On 8 March 1991 Mr Warren wrote to the building surveyor of the Shire of Augusta Margaret River. He requested approval to locate a CWA hall from the Margaret River township to his property and attached a map of his property. The map showed the proposed site of the new residence and the site of his existing house but not the dwelling built by Mr Lawton and Ms Hall. The approval of the second dwelling on his exclusive use area had the effect that Mr Lawton and Ms Hall were not subsequently able to obtain approval for their dwelling because of the Shire's two dwelling limit policy. Mr Morison says Mr Warren concealed the Lawton Hall dwelling because he knew of the Shire's two dwelling limit.
Mr Warren said he was right to not refer to or show the Lawton Hall dwelling in his application on the ground that it was not a dwelling or a residence but only a shed. I do not accept that in March 1991 Mr Warren did not show the Lawton Hall dwelling on his application because he did not regard it as a residence or dwelling. On 18 May 1994 Mr Warren wrote to the Shire of Augusta Margaret River. Mr Warren referred to Mr Lawton and Ms Hall having recently licensed their septic tank during an upgrade of their ablutions 'at their home'. Mr Warren wrote:
It seems that this has led to an expectation that council approval is required to be considered for buildings which have been erected for a considerable time. Neither my house nor my neighbours are licenced/stamped/approved etc nor are they required to be, having been established well before current policies. Many homes in the Shire are the same. I also own a second home on the property which was approved of under the usual processes three years ago (under the current policy).
… I understand council was aware of Lawton Hall's home for many years.
Mr Warren's evidence concerning this matter was disingenuous.

The third credibility issue concerns Mr Warren's knowledge of the Shire's two dwelling limit. When he was being cross‑examined about not disclosing the Lawton Hall dwelling on his application to erect a dwelling on his land Mr Warren denied that he became aware that the Shire had a two dwelling limit on rural property and that Mr Lawton and Ms Hall were unable to have an approval because theirs was regarded by the Shire as a third dwelling. Mr Warren said that he became aware of the policy in 1998. The following day Mr Warren was presented with extracts from meetings of the Shire Town Planning Building and Health Committee which related to the Lawton Hall dwelling being a third dwelling on the land. The minutes refer to a refusal of approval on the grounds that the proposed third dwelling is in contravention of council's town planning scheme provisions that only two houses should be permitted on a rural property unless proven necessary for the purpose of farm management. On the foot of the page there is a note in Mr Warren's handwriting that the document was received on 17 June 1994. When it was put to him that in his evidence the previous day he had said that he did not know until 1998 about the two dwelling limit policy Mr Warren replied:
I still don't know about that policy. I have not seen the gazetted policy. I don't know.
Mr Warren agreed that he had seen the document on 17 June 1994 but maintained that he had not 'seen any policy'. I find Mr Warren's initial evidence about his knowledge of the two dwelling restriction was misleading and his explanation when confronted with the committee minutes was disingenuous.
The fourth credibility point is that Mr Warren wrongly suggested that in dealing with the issue concerning his conditional consent to the alteration of the joint tenancy, his lawyer, Mr Brennan, was acting on his own initiative and Mr Warren was unaware of the stance he took. Mr Warren was referred to a letter of 26 June 1997 from Crane Beere & Associates to Ms Hall's lawyer, Beere May & Meyer, in which Mr Brennan referred to the draft contract prepared by Mr Meyer and amendments that Mr Warren required. The letter said in paragraph (a):
We require your client to acknowledge that she is fully aware of all of the conditions in the agreement and in particular clauses 6 and 13.
When he was asked if he wanted that clause inserted because he doubted that Ms Hall was conversant with the clauses of the contract Mr Warren replied:
I didn't direct Damian Brennan to write his letter in any way, shape or form. I asked him to ensure that the transfer and the assignment was properly made.
In his letter of 20 June 1997 to Mr Brennan, Mr Warren commented on the draft alternative deed prepared by Beere May & Meyer and said that he wants to know that Ms Hall:
'agrees with and understands the terms the original contract and all of these terms including:
(i)area of exclusive use,
(ii)option of repurchase [ie cl 13],
(iii)use of title for security purposes [ie cl 6],
will be incorporated and renewed in the new deed.'
Paragraph (a) of Mr Brennan's letter follows Mr Warren's instructions. There are other examples given by Mr Morison of Mr Warren saying in effect that Mr Brennan was acting on his own initiative in putting forward demands concerning a deed of assignment to be executed by Ms Hall. I find that Mr Warren misleadingly sought to distance himself from the contents of letters written by Mr Brennan on his instructions.
The fifth credibility point concerns Mr Warren's evidence about the reason for the clearing or cleaning up work done on 25 August 2011. Mr Warren claimed in his evidence that the work was done in accordance with directions from Western Power. The documentary evidence is that Western Power inspected Lot 2706 on 27 July 2011 and found that one pine tree along the access road near the power lines and marked with orange tape was found to be dangerously close to power lines. The notice required that the tree be trimmed back so that the distance between the nearest branch and the power line is at least 2.5 m underneath and at least 4 m width. Mr Warren said that he and the contractor, Mr Isles, met with the Western Power representative at the site on 25 August 2011 and the Western Power representative directed the contractor to do the work. I do not accept that evidence. It is inconsistent with the documentary evidence to which I have referred and is expressly contradicted by Mr Isles. Mr Isles said that Mr Warren instructed him what to do and it was later that a bloke from the power company came. Furthermore, the claim that Western Power directed what work was to be done on the morning of 25 August 2011 is inconsistent with the letter to Ms Hall which Mr Warren posted on 24 August 2011 which describes the work that was to be done. I also find Mr Warren's description of the work done that day as 'quite normal farm work' to be an attempt to lessen the magnitude and significance of the work carried out. Mr Isles' invoice shows that it involved 12 hours using bulldozers yet Mr Warren was reluctant to admit that it was a significant job. Mr Warren's attempt to explain the carrying out of the work as being work directed by Western Power was misleading.
The sixth credibility point concerns Mr Warren's evidence that he accurately stepped out the boundaries of the agreed Lawton Hall exclusive use area. Mr Warren claimed that he and Mr Lawton measured the distance from the edge of the vineyard to the southernmost point of the agreed western boundary to be 190 m. Mr Warren said that he did that by pacing it out, that he quite commonly paced out distances and his pace is 'exactly 0.77 metres'. When it was put to him that the land was uneven and sloping Mr Warren explained that he:
paced it several times and then the three ‑ or however many times you do it obviously you get an average that's close to it.
Mr Warren's evidence that he got an average that is 'close to it' is a departure from his earlier evidence that he and Mr Lawton measured the distance to be 190 m. I do not accept that Mr Warren measured a precise distance of 190 m by pacing it out. Mr Lawton, who I find to be a credible and reliable witness, firmly denied that he and Mr Warren paced out the distance. Mr Warren did not say in his written statement that he and Mr Lawton had paced out the distance as he described in cross‑examination. The boundaries of the Lawton Hall exclusive use area was clearly an issue and I would have expected Mr Warren to say how the distance was measured if he had remembered when he completed his statement that he had paced it out. However, in his statement Mr Warren did not explain that he had paced out the boundary, let alone had done so 'three or however many times you do it'. I accept Mr Lawton's evidence that:
We never could pace out that area. Very steeping slopes to the east and to the south. There was no way to get any kind of accurate measurement because the southernmost point was supposed to be in the middle of the pond.
When it was again put to Mr Lawton that Mr Warren said he paced it out with him and did so several times, Mr Lawton responded:
We walked ‑ we walked around the boundaries, but there was no way to get to the end points. There was bush, water, razor grass.
Mr Warren agreed that the land was sloping and sought to overcome the obvious difficulty of measuring the distance 'exactly' over such a terrain by saying that he did it 'three or however many times' to get an average that is close to it. I do not accept Mr Warren's evidence. I find that he claimed to have paced out the agreed end point 'exactly' or 'close to it' to support his case that the agreed southernmost end point of the Lawton Hall exclusive use area stopped short of the pond.
Mr Morison submitted that Mr Warren sought to evade answering questions by answering questions not asked of him. I find that Mr Warren did, at times, evade the point of a question by in effect answering a different question. I also find that at times Mr Warren sought to argue his case rather than answering the questions put to him in a straightforward manner. In summary, Mr Warren was not a satisfactory witness.

5.3 Credibility and reliability of Hall

In general, Ms Hall was a credible witness. However, it was at times difficult to follow her evidence. Mr McPhee says that the critical evidence consideration, particularly in relation to those events which occurred 32 years ago, is not credibility but reliability. In relation to some critical matters, and in particular the negotiation of the sale and purchase of the undivided one‑twentieth share of Lot 2706 Ms Hall was unable to give direct evidence. I accept Ms Hall's evidence concerning her understanding of the agreement to purchase the undivided one‑twentieth share from Mr Lawton based principally upon her discussions with Mr Lawton.

5.4 Credibility and reliability of Lawton

Mr Lawton is a party to this action but no relief is sought by or against him and he has expressly elected to abide the outcome of the case. Mr Lawton is Ms Hall's former partner but their relationship ended more than 20 years ago. I am satisfied that Mr Lawton's evidence was not influenced by any desire to assist Ms Hall. Mr Lawton was a persuasive witness. He gave his evidence in a logical and straightforward manner. He readily made reasonable concessions. He could not recall details of what Mr Warren had said in negotiating the sale and purchase of the undivided one‑twentieth share of Lot 2706. That is not surprising given the passing of time. On the whole, his evidence was direct, plausible, credible and reliable as to the substance of what happened.

5.5 Other witnesses

It is not necessary to make detailed findings about the credibility and reliability of the other witnesses. In the main, their evidence was given in an attempt to assist the court. I have some reservations about the evidence of Mr Isles. He was antagonistic in cross‑examination by counsel for Ms Hall and I find that he was reluctant to give any evidence that might be helpful to Ms Hall or damaging to Mr Warren. I accept his evidence that Mr Warren directed him what clearing or cleaning up was to be done on 25 August 2011 before the Western Power representative arrived.

6. Value of Lot 2706 and undivided one-twentieth share

The plaintiff and the defendant each led evidence from valuers. The evidence concerned the value of Lot 2706 in September 1983, the value of an undivided one‑twentieth share in September 1983, the value of the undivided one‑twentieth share purchased by Mr Lawton and Ms Hall taking into account the terms of the Contract of Sale, the current value of Lot 2706, the current unimproved value of Lot 2706 and the current value of the Lawton Hall Lot.

6.1 Value in September 1983 of Lot 2706

In 1983 there were improvements on Lot 2706. Mr Nicholls, the valuer instructed by or on behalf of Mr Warren, considered that as at September 1983 Lot 2706 had 'an underlying land value component in the order of $140,000 to $160,000'. In cross‑examination Mr Nicholls explained that that was not the unimproved value of the land, it was the value excluding structural improvements, by which he meant buildings, but it included at least the value of clearing, water supplies and internal roads.
Mr Schifferli, a valuer instructed by or on behalf of Ms Hall, considered the value of Lot 2706 in 1983 was $80,000 to $100,000. Both valuers considered that the correct methodology for the valuation of the property is the direct sales comparison method.
In my opinion Mr Nicholls treated the qualities of Lot 2706 too favourably in comparison with the comparators he relied upon. Mr Schifferli considers the best comparator to be the sale of Lot 2703 Caves Road Forrest Grove which is nearby Lot 2706 and sold for $107,000 in February 1984. The property has an area of 100.37 ha which is about 25% larger than Lot 2706. In his letter of 19 August 2015 Mr Nicholls considered the sale provides a limited degree of comparability because it is operated on a lease basis with there being multiple lessees and each lessee is a shareholder of the lessor. In cross‑examination Mr Nicholls said that Lot 2706 is a better property than Lot 2703 for two reasons. The first reason is a repetition of his comment in his letter of 19 August 2015 concerning the use to which the purchaser has put Lot 2703 after acquiring it. Mr Nicholls said that it was bought by a group for the purpose of setting up a community on the property which involved leases and common property and makes it 'a highly complex asset'. There is no evidence that the use to which the purchasers intended to put Lot 2703 affected its purchase price. There is no evidence that the sale price was not for market value. In my opinion the principal reason that Mr Nicholls treated the sale of Lot 2703 as providing a limited degree of comparability and why he considered Lot 2706 to be a superior property is irrelevant. The second reason given by Mr Nicholls is that Lot 2706 has better access into Margaret River because it has access straight onto Bussell Highway whereas from Lot 2703 you have to drive on Caves Road. Mr Schifferli said there is no market evidence that Bussell Highway creates a premium, that Lot 2703 fronts Caves Road which is a bitumen sealed road providing good access to the town of Margaret River and Augusta and access to the beaches and the location of Lot 2706 closer to Bussell Highway has no effect upon its value.
I do not accept that in 1983 and 1984 Lot 2706 was a significantly superior property to Lot 2703. I am not persuaded by the other comparators referred to by Mr Nicholls that the market value of Lot 2706 in September 1983 was more than $100,000.

6.2 Value in September 1983 of interest acquired by Lawton and Hall

In a letter written in response to a request from Mr Warren's solicitor Mr Nicholls said that based on his analysis of the property 'land value only, excluding buildings' being in the order of $150,000 this would indicate on a simple apportionment basis a value of a one‑twentieth share in the order of $7,500 but he considered it is unlikely that any vendor who owned the land would sell a fractional interest in the property for that sum. His principal reason was that the sale of a one‑twentieth share would impact negatively on the overall quality of tenure of the remaining 19 twentieth shares. Mr Nicholls said that in consideration of those factors a premium well above the simple apportionment of one‑twentieth value of the property as a whole seems fair given the prevailing market conditions at the date of sale in September 1983.
In cross‑examination Mr Nicholls explained that if the owner of the land was considering selling an undivided one‑twentieth share his advice to the owner would be to get a premium, that is more than one‑twentieth of the value of the whole of the land. Mr Nicholls agreed that that does not consider the value of an undivided one‑twentieth share to a purchaser. Mr Nicholls agreed that his opinion about the price he would recommend a vendor should ask for an undivided one‑twentieth share says nothing about the value to the purchaser. In cross‑examination Mr Nicholls referred to the potential difficulties of co‑ownership. He said his advice would be to both vendor and purchaser not to agree to a shared title arrangement because it inevitably ends not very well. I find that Mr Nicholls' statement that he would recommend to a vendor that the vendor obtain a premium for the sale of an undivided one‑twentieth share is a reflection of his opinion that co‑ownership 'inevitably ends not very well'. Mr Nicholls' recommended premium looks at the matter solely from the perspective of the vendor and is not a valuation based on market value which is the estimated amount for which an asset should exchange on the date of valuation between a willing buyer and a willing seller in an arm's length transaction after proper marketing wherein the parties had each acted knowledgeably, prudently and without compulsion.
Mr Schifferli said that the value of Lot 2706 in 1983 was $80,000 to $100,000. He agreed that to purchase an undivided one‑twentieth share a purchaser should pay a premium over one‑twentieth of the value of the whole land. He said that the interest acquired by Mr Lawton and Ms Hall was worth no more than $10,000 subject to there being no detrimental clauses in the exclusive use agreement, by which he meant the Contract of Sale.
Mr Schifferli considers that cl 6, 13, 14 and 15 of the Contract of Sale are detrimental to the purchaser and the value of the undivided one‑twentieth share purchased by Mr Lawton and Ms Hall, having regard to those detrimental provisions, is between $0 and $5,000. The detrimental effects of the clauses is as follows. Clause 6 allows the owner of the 19 shares to mortgage the whole of the land to 66% of its value. This makes the one‑twentieth share almost of no value to the market. The default of the owner of 19 shares to pay the mortgage will result in the forced sale of the whole of the land which could result in a maximum of 33% of its value being returned to the owners but more likely very little or no money being returned to the owners. Lenders lend to about 60% of the value of rural properties. The chances of getting a second mortgage on a purple title when the loan to value ratio is already 66% would be extremely remote.
Mr Schifferli considers cl 13 is detrimental because it gives the owner of the 19 undivided twentieth shares the option of first purchase not at market value but in accordance with the formula contained in cl 13(b). The purchase price shall be one‑twentieth of the unimproved market value of the whole of the land, which excludes the value of buildings, clearing and other improvements. This restricts the market value of the one‑twentieth share to at best unimproved land value and at worst nominal value having regard to cl 6. Clause 13(c) increased the detriment as the sale is to be settled on payment of a 25% deposit with the remaining payments being paid annually in three equal instalments. Clause 14 is detrimental as it restricts the ownership structure of the one‑twentieth share. Clause 15 is detrimental because it does not allow for survivorship and upon the death of the last remaining owner of the one‑twentieth share the owner of the 19 shares get first purchase in accordance with cl 13.
The value of the interest purchased by Mr Lawton and Ms Hall was less than one‑twentieth of the value of Lot 2706 because of the detrimental effect of cls 6, 13, 14 and 15 of the Contract of Sale. The effect of cl 13 alone effectively reduced the value of the interest to no more than one‑twentieth of the unimproved value of Lot 2706, that is no more than $5,000 in September 1983. Having regard to the detrimental effect of the other 'detrimental clauses', particularly cl 6, I accept the opinion of Mr Schifferli that the value of the interest acquired by Mr Lawton and Ms Hall was no more than $5,000. That is because it is highly improbable that Mr Lawton and Ms Hall could dispose of their interest other than by sale to Mr Warren for one‑twentieth of the unimproved value of Lot 2706 pursuant to cl 13. It is likely that Mr Warren would exercise the option, when it arose, because of its favourable terms. In any event, if he did not, it is unlikely that any purchaser would purchase the interest except for a price much less than one‑twentieth of the value of Lot 2706 because of the provisions of cl 6 and the existence of mortgages taken out by Mr Warren pursuant to that provision.

6.3 Value of Lot 2706 at trial

Mr Nicholls apportioned the 'as is' value of the property between the unimproved land value and added value of structural improvements on the Lawton Hall exclusive use area and Mr Warren's exclusive use area. Mr Nicholls subsequently varied his valuation based upon planning advice from the Shire of Augusta Margaret River and a Be Safe Building Inspections Report concerning the Lawton Hall dwelling. Mr Nicholls revised his assessment of the added value for the structural improvements on the Lawton Hall exclusive use area from $95,000 to $65,000. Mr Nicholls said that 'as is' value should also be reduced by $30,000 so that it is $2,085,000. In his report Mr Nicholls apportioned the unimproved land value and the value of structural improvements by attributing $1,125,000 as the unimproved value of the land and the balance to the structural improvements.

Mr Schifferli valued the Lawton Hall undivided one‑twentieth share, including the right to the exclusive use and occupation of their exclusive use area but disregarding the 'detrimental clauses' of the Contract of Sale as at 30 September 2011 to be $250,000.
I accept that at the date of trial the market value of Lot 2706 is $2,085,000 and the unimproved value is $1,125,000.

7. Hall's rectification claim

The green area on the plan attached to the Contract of Sale does not include the whole of the access road or the west road or the dam. Ms Hall says that she, Mr Lawton and Mr Warren at the time they signed the Contract of Sale and initialled the plan had a common intention that the exclusive use area for Mr Lawton and Ms Hall would include the access road and the west road down to the dam and with the apex into the middle of the dam. Ms Hall seeks rectification of the Contract of Sale by amending cl 9 to provide that the Purchasers shall be entitled to exclusive use and occupation of the Lawton Hall Lot and by substituting for the plan attached to the Contract of Sale a plan on which the area coloured green is the Lawton Hall Lot, that is an area which includes the access road and the west road and whose southernmost point ends in the middle of the dam.

7.1 Elements of rectification

The essence of rectification is to make the document conform to the parties' intention. In New South Wales Medical Defence Union Ltd v Transport Industries Insurance Co Ltd (1986) 6 NSWLR 740, 747 Clarke J stated:
Rectification is available in circumstances when the parties have used words which, when properly construed, do not express their intention.
In Commissioner of Stamp Duties v Carlenka (1995) 41 NSWLR 329, 326 Sheller JA said:
In the first place the availability of relief [by way of rectification] depends upon disconformity between the form or effect of the document executed and the intention of the parties or party who executed it.
Ms Hall's case is that at the time of entering into the Contract of Sale it was the common intention of Mr Warren and of Mr Lawton and Ms Hall that the Contract of Sale would contain a term that Mr Lawton and Ms Hall's exclusive use area would:
1)have as its western boundary the west side of the existing driveway from Sebbes Road and the west road;
2)have its south west corner in the middle of the dam; and
3)include the creek running east from the dam (the Lawton Hall Lot).
Ms Hall's case is that contrary to that common intention the Contract of Sale failed to specify Mr Lawton and Ms Hall's exclusive use area to be the Lawton Hall Lot in that the western boundary on the plan attached to the Contract of Sale does not include the whole of the access road and the west road and does not have a corner in the middle of the dam. Ms Hall says that the Contract of Sale should be rectified by amending the plan to conform with the parties' intention.
Ms Hall must establish three essential elements for rectification. First, the parties had a common and continuing intention that the exclusive use area should include the Lawton Hall Lot. Secondly, the parties intended that their prior concurrent intention should be expressed in the Contract of Sale and that intention continued unchanged up to the time when the Contract of Sale was executed. Thirdly, there must be clear evidence of the mistake common to both parties and Ms Hall must be able to show precisely the correction that is needed: Pukallus v Cameron [1962] HCA 63; (1982) 180 CLR 447.
I will now review the evidence in relation to the agreement concerning the Lawton Hall exclusive use area.

7.2 The defendants' evidence

Ms Hall says that she and Mr Lawton wanted to buy some land on which to build a house and live in the Margaret River area. At some stage Mr Warren must have suggested a piece of land on his property. She first heard of this through Mr Lawton. The discussions and decisions made were mostly between Mr Warren and Mr Lawton. Ms Hall gave no direct evidence of any discussions about the boundaries of what was to be the exclusive use area of herself and Mr Lawton which took place with Mr Warren at which she was present before the execution of the Contract of Sale. Ms Hall's evidence is essentially assertions about her understanding of what their exclusive use area was to include. That understanding is a result of her discussions with Mr Lawton and assumptions that she made based upon what she and Mr Lawton wanted and her subsequent understanding of what was discussed between her and Mr Lawton as well as some discussions with Mr Warren at which she was present. Before she signed the Contract of Sale Ms Hall understood that she and Mr Lawton had agreed with Mr Warren that they were to have the exclusive use and occupation of an area that included the access road and the west road and the western boundary of which extended into the dam.
In his evidence‑in‑chief, given by way of a written statement, Mr Lawton said that he and Ms Hall decided they wanted to buy some land around Margaret River to build a dwelling on and retire to someday. They looked at various places but found that a good supply of water was almost always a problem. Mr Lawton mentioned this to Mr Warren and Mr Warren said he might consider doing some kind of land deal with them. Mr Warren subsequently found an area that had an access road from Sebbes Road and a pond where water would be plentiful. Mr Warren and a mutual friend, David Coates, had stepped out a rough area that went into the centre of the pond and was a battle axe in shape. The access road into the property from Sebbes Road wound around peppermint trees and red gums and was very secluded from the road. Once you got to the triangular portion of the battle axe the road veered a few metres and went straight down toward the pond. Mr Warren said this would be basically Mr Lawton and Ms Hall's exclusive road down to the pond but that they would share it with him on the odd times he would need it for general maintenance. When the Contract of Sale was presented to him Mr Lawton read it carefully and discussed it with Ms Hall. When he asked Mr Warren for clarification, Mr Warren assured he and Ms Hall on the major questions and said the document was designed to protect and benefit all of them. Mr Lawton presumed the exclusive use area included the access road as it existed, the west road down toward the dam and part of the pond. Mr Warren had the contract written up and came to Perth for Mr Lawton and Ms Hall to sign it and hand over the cheques.
In cross‑examination Mr Lawton said that Mr Warren found the property and took him to it as a potential site. He agreed that he walked out the area with Mr Warren. Mr Warren suggested that the road in from Sebbes Road would give them easy access to the area. The dimensions were always up for revision because the actual road was wider than 5 m in several places. It was put to Mr Lawton that he and Mr Warren paced out the triangular area shown on the plan attached to the Contract of Sale. Mr Lawton said they could never pace out that area, it had very steep slopes to the east and the south and there was no way to get any kind of accurate measurement because the southernmost point was supposed to be in the middle of the pond and the eastern most point was in the middle of a creek bed which was full of razor grass maybe 50 m across. Mr Lawton said that he and Mr Warren agreed that the area would end in the middle of the pond. He was always adamant about wanting access to water, that was one of their main driving forces.
It was put to Mr Lawton that Mr Warren's case is that the bottom apex is not in the middle of the dam but next to the dam. Mr Lawton said it was always his understanding that it was the middle of the pond. He said that he is sure that is what they agreed on because that is what he and Ms Hall wanted as a stipulation but he does not recall exactly what Mr Warren said. Mr Lawton said that the west road ended above the pond, may be 20 or 30 m. In re‑examination Mr Lawton explained that the road down to the pond veered off and went over to Mr Warren's property and then there was another little track that went back down to the pond.

7.3 Warren's evidence

Mr Warren says that he drew the plan attached to the Contract of Sale. That is common ground. The plan shows that the western boundary is a straight line 423.36 m long. The distance from Sebbes Road to the edge of the vineyard was known to be 233.36 m. Mr Warren said that he and Mr Lawton measured the other 190 m. He said that he did that by pacing it out, that he quite commonly paced out distances and his pace is exactly 0.77 m. Mr Warren agreed that the land is sloping. He then explained that he:
paced it several times and then the three - or however many times you do it obviously you get an average that's close to it.
I do not accept that Mr Warren measured a precise distance of 190 m by pacing it out. First, Mr Lawton firmly denied that he and Mr Warren paced out the distance. Mr Lawton was a persuasive witness and I accept his evidence in preference to that of Mr Warren. Secondly, Mr Warren did not say in his written statement that he and Mr Lawton had paced out the distance as he described in cross‑examination. The boundaries of the exclusive use area of Mr Lawton and Ms Hall was a major issue and I would have expected Mr Warren to say how the distance was measured and hence the end point determined if he had remembered when he completed his statement that he had previously measured the distance 'exactly' by pacing it out. However, in his statement Mr Warren did not explain that he had paced out the boundary line, let alone done so more than once. Thirdly, I accept Mr Lawton's statement that the terrain made it impractical to pace out the distance accurately or at all. Mr Warren agreed that the land was sloping and appears to try to overcome that problem by saying that he walked it several times or 'three or however many times' to get an average that is close to it. I do not accept that evidence. Fourthly, it is inherently likely that Mr Warren and Mr Lawton agreed that the Lawton Hall exclusive use area would go into the dam and implausible that Mr Lawton would have agreed that it stopped short of the dam. Access to water was an important factor in Mr Lawton and Ms Hall selecting a block of land. If the exclusive use area went into the dam then they would have access to that water but would have no access if the exclusive use area stopped short of the dam or pond.

7.4 Warren and defendants agreed on Lawton Hall Lot

I accept Mr Lawton's evidence of the events leading up to the execution of the Contract of Sale. In cross‑examination it was put to Mr Lawton that when he was considering whether to sign the Contract of Sale he accepted that the Contract of Sale was the entire agreement. Mr Lawton said:
[Mr Warren] said he had to put some numbers down for the actual dimensions of the property. They were approximated. He couldn't put things like 'the middle of the pond' or 'the middle of the creek'. He had to actually put numbers down and that they were approximate. So we thought, okay, this is a flexible arrangement.
I find that Mr Warren and Mr Lawton walked over the area that was to be the exclusive use area of Mr Lawton and Ms Hall and agreed on end points. Mr Warren may have paced out part of the boundary lines but he did not pace out the western boundary to the agreed point to be exactly 190 m, or close to it. Mr Warren drew lines on the plan which approximated the agreed use area as best he could taking into account that the plan is on a scale of 1:7,500 which makes it impossible to represent small deviations from a straight line, and the plan did not show the pond which had been discussed or any other natural features which could be referenced to locate the end points and boundaries. Only the distances of 423.36 m, 233.36 m and 160 m make it possible to identify the boundaries of the green area from the plan. Mr Warren and Mr Lawton did not agree that the southern corner of the exclusive use area would be 423.36 m from Sebbes Road. What was agreed was end points identified by reference to natural features. Mr Lawton and Ms Hall believed that the distances recorded on the plan were approximate and that the agreed exclusive use area was delineated by the natural features which had been identified and agreed. I am satisfied that Mr Warren intended that the exclusive use area was to be delineated by those same natural features and that the green area on the plan approximated that area as best he could do on a freehand drawing without a survey. After these proceedings had begun Mr Warren engaged Mr Oliver to conduct a survey. The survey showed that the line 423.36 m from Sebbes Road stopped just short of the dam. However, I find that Mr Warren agreed that the boundary should extend into the dam and intended that it should when he drew the plan attached to the Contract of Sale, not that it should stop just short of the dam.
I find that prior to executing the Contract of Sale Mr Lawton on behalf of himself and Ms Hall agreed with Mr Warren that the western boundary of the exclusive use area would be the access road and the west road apexing into the middle of the dam. That is the evidence of Mr Lawton which I accept. Ms Hall understood that to be the agreement. It is inherently likely that the three of them would have agreed that the access road and the west road be the western boundary of the exclusive use area rather than an arbitrary straight line drawn though part of the access road and excluding the west road to the dam. I accept the evidence of Mr Lawton and Ms Hall that access to water was one of their essential requirements. It is inherently unlikely that Mr Lawton and Ms Hall would have agreed that their use area should stop short of the pond rather than going into the pond and thereby giving them access to water. Those matters were known to Mr Warren and it is inherently likely, and I find, that he agreed to the Lawton Hall exclusive use area including the access road, the road down to the dam and extending into the middle of the dam and that intention continued to the time he signed the Contract of Sale.

7.5 Common intention was exclusive use area was Lawton Hall Lot

I am satisfied that Mr Warren and Mr Lawton on behalf of himself and Ms Hall agreed that Mr Lawton and Ms Hall's exclusive use area was to be the Lawton Hall Lot, that is an area with its western boundary the western edge of the access road and the west road and its corner in the middle of the dam. Mr Warren drew a plan which the parties intended would reflect that agreement. Obviously, the western boundary of the exclusive use area on the plan is a straight line whereas the western edges of the access road and the west road do not form a perfectly straight line. However, the plan is drawn to a very small scale and small deviations from a straight line would not be apparent. For example a deviation of one metre would extend barely more than one‑tenth of a millimetre from a straight line and would not be practical to display on the hand drawn plan. The parties believed that the southern apex of the green area on the plan was in the middle of the dam.
A party seeking rectification of a contract must advance convincing proof to show that at the time of execution of the contract the parties held a common intention which was inconsistent with what is provided for in the written contract. However, the requirement for convincing proof does not alter the civil standard of proof on the balance of probabilities. I am satisfied that Mr Warren, Mr Lawton and Ms Hall all had a common intention that the exclusive use area was to be the Lawton Hall Lot as I have described it.
The plaintiff made a number of submissions to the effect that rectification was not open in this case. The first point made by the plaintiff is that Ms Hall has amended her pleadings concerning the common intention which gives rise to uncertainty about the precise representation thereby making it difficult to show precisely the form to which the contract should conform. I have considered the evidence carefully and am satisfied from the whole of the evidence, especially the evidence of Mr Lawton, that the exclusive use area was agreed to be delineated by the access road, the west road and its western corner in the middle of the dam. How those points are to be described does not detract from the certainty of their common intention, nor does any variation or changes in the pleadings.

7.6 Mistake was as to the plan not the exclusive use area

The second point made by the plaintiffs is that Pukallus v Cameron is authority for the proposition that the contract cannot be rectified so as to include the access road, west road and extending into the pond because the mistake shared by the parties was not a mistake in embodying their intention in the Contract of Sale but a mistake as to what features were within the boundaries of the agreed exclusive use area. In Pukallus v Cameron the respondent sold the appellants land described in the contract as including 'subdivision 1 of portion 1154'. Both parties believed that an area containing a bore and cultivation lay within the land but in fact it was within land retained by the respondent. This was discovered after completion of the contract. The appellant obtained an order from the Supreme Court of Queensland for rectification of the contract so that the description included reference to an adjoining strip of subdivision 2 containing the cultivated area. This order was set aside by the Full Court. The High Court dismissed an appeal from the decision of the Full Court. The decision in Pukallus v Cameron was explained by Sackar J in W&K Holdings (NSW) Pty Ltd v Mayo [2013] NSWSC 1063. On appeal, the New South Wales Court of Appeal varied the orders of Sackar J but noted that no complaint was made on appeal concerning Sackar J's statement of the legal principles concerning rectification, including his Honour's reference to Pukallus v Cameron. Sackar J explained the decision in Pukallus v Cameron as follows:
In my view, I do not think it is accurate to say that the principle emerging from Pukallus v Cameron is that rectification is not available where the relevant mistake is as to the effect of agreed terms rather than the form or expression of words. If that proposition was correct, the doctrine of rectification would almost be reduced to operate to correct purely clerical errors. It is true that the parties in Pukallus v Cameron had a common intention to include a bore and cultivation area within the conveyance. However, the unavailability of rectification in the case of Pukallus v Cameron was based on an absence of evidence of sufficient specificity of the parties' precise common intention, and the court's consequent inability to formulate a precise term as to the location of the new boundary so as to include within the contract the portion of land which the parties intended to convey.
Gibbs CJ said (at 448):
'… [the parties] had no common intention as to where the boundary line of the land sold should go to ensure that the bore and cultivation were included … In these circumstances, to order that the contract be rectified by fixing a boundary line that included part of subdivision 2 was both to depart from so much of the common intention of the parties as had been correctly expressed in the written contract and to formulate a term (as to the situation of the boundary) which neither party had intended to include in the contract …'
Wilson J (with whom Gibbs CJ agreed) said (in selected passages, citations omitted):
'[The trial judge] was mindful of the obligation resting upon the plaintiffs to show precisely the form to which the contract should conform. He noted that during the trial the plaintiffs had amended the statement of claim to plead in the alternative a representation by Mr Cameron which differed from the particulars supplied earlier, a circumstance which indicated some uncertainty about the precise representation. The evidence of the male appellant reflected this uncertainty. Nevertheless, his Honour stated:
The parties had not determined exactly how far south of the cultivation the boundary would go. But it was clearly understood by them that it would at least skirt the southernmost part of the 27 acres of cultivation. This is a sufficient identification of the land to be included.
…
The case raises no issue as to the principles which govern the rectification of a contract. Those principles are not in dispute … [The] plaintiff [must] advance "convincing proof" that the written contract does not embody the final intention of the parties. The omitted ingredient must be capable of such proof in clear and precise terms. The Court must not assume for itself the task of making the contract for the parties.
…
[E]ven if a new boundary was in contemplation, the appellants face the difficulty of proving the precise term which it is said was agreed between the parties and which through mutual mistake was not incorporated in the written contract. It is not enough merely to prove that the bore and twenty-seven acres of cultivated land were intended to be included in the land the subject of the sale. Although the learned trial judge made a finding in those terms, he recognized that the evidence required the fixation of a new boundary line parallel to the present southern boundary to subdivision 1. The evidence led for the appellants failed to establish such a line with any clarity.
…
[The trial judge] acknowledged that the parties had not determined how far south of the cultivation the boundary would go, but ruled that sufficient identification of the land to be included was to be found in their "clear understanding" that it would at least skirt the southernmost part of the twenty-seven acres of cultivation. In my respectful opinion, his Honour's conclusion is a rationalization of the evidence that might be supportable only if the established principles concerning rectification did not require convincing proof of the precise variation to the written agreement.'
Brennan J said (in selected passages, citations omitted):
'The finding made by [the trial judge] as to the intention of the parties appears to be amply supported by the evidence, but it is not reflected precisely in the order for rectification which his Honour made. The intention which he found was that a parcel of land, undefined except that it included the bore and the cultivation, was to be included in the sale. The order, however, described a parcel to the south of subdivision 1 and specified its boundaries. The order went beyond what his Honour found the common intention of the parties to be, and therefore the terms of his order cannot be supported.
…
Where parties enter into a written contract for the sale of land and describe the parcel of the land sold by its survey description, the hypothesis is that the boundaries of the parcel are fixed in accordance with that description and not by reference to boundary fences, survey pegs or other topographical features. The hypothesis may be rebutted by proof that the parties agreed upon the parcel of land to be sold by reference to such fences, pegs or other precise topographical features …
…
In the present case, the parties had not identified, by reference to fences or other topographical features, the precise boundaries of the parcel the subject of the sale before they entered into the written contract.
…
There was no evidence tending to show that Mr Pukallus and Mr Cameron had agreed on a southern boundary corresponding with that fixed by the order of the learned trial judge.'
The intention that the land include a bore and a particular cultivation area (ie merely 'features' of the land) was not sufficiently specific to enable an order to be crafted to reform the contract. Gibbs CJ, Wilson and Brennan JJ were at pains to emphasise that the barrier to rectification in Pukallus v Cameron was the absence of sufficient evidence of the parties' precise intention to enable the court to formulate with sufficient precision a variation to the contract that would include the bore and cultivation area within the conveyance. In other words, there were a multitude of possible permutations to an order for rectification, all of which could have had the desired effect of including the bore and cultivation area within the conveyance, but there was no evidence as to which of those orders was intended by the parties at the time of entry into the contract.
In light of this, perhaps the proposition that subsequently decided cases have broadened the availability of rectification by enabling it to be ordered where the parties are mistaken about the effect of deliberately chosen words, is an unwarranted characterisation of the true position. As Wilson J observed, Pukallus v Cameron did not raise any issue as to the principles which govern the rectification of a contract. The case illustrates the necessity of evidence of sufficient particularity, of the parties' common intention. There needs to be evidence not only of the effect which the parties intended to achieve, but also of the precise method by which the parties intend that effect to be achieved, in order to enable the court to have an evidentiary basis for formulating the terms of the order for rectification [93] ‑ [98].

Counsel for Mr Warren, Mr McPhee, submitted that the source of all authorities that a right of pre-emption does not create a caveatable interest in land seems to be statements in Manchester Ship Canal v Manchester Racecourse Company [1901] 2 Ch 37. In Pritchard v Briggs Goff LJ described the Manchester Ship Canal case as an important and controversial case. Stephenson LJ described it as a somewhat unsatisfactory decision. It is unnecessary to review the decision in the Manchester Ship Canal case. In Pritchard v Briggs the Court of Appeal of England and Wales considered the Manchester Ship Canal case and other authorities and determined that a right of pre-emption, unlike an option to purchase, did not create an interest in land because it did not give the grantee a present right, or even a contingent right, to call for the conveyance of the legal estate. It created a mere expectation ('spes') and could not become an interest in land until the condition on which it depended was satisfied (that is by the grantor offering the land to the grantee) and the right was converted into an option.
Mr McPhee said that in Western Australia the leading case on this point is Pata Nominees Pty Ltd v Durnsford Pty Ltd (1988) WAR 365. The appellants leased land from the first respondent. The lease gave to the appellants a second right of refusal to purchase the land. The appellants lodged a caveat to protect their leasehold interest and right of pre-emption. The second respondent offered to purchase the land from the first respondent on certain conditions which offer was accepted. After the contract had been made but prior to settlement the first respondent gave notice to the appellants offering to sell them the land on terms not materially different to those of the contract. The offer was not accepted by the appellants who were then requested to withdraw their caveat but refused to do so. The appellants issued a writ seeking various relief including an injunction restraining the completion of the sale of the land and a declaration that they had an equitable interest in the land. The trial judge held that the appellants had no equitable interest and refused the declaratory relief sought. On appeal the appellants argued that they acquired an equitable interest in the land immediately the first respondent became desirous of selling the land.
The appellants relied upon Pritchard v Briggs in support of their submission that they acquired an equitable interest in the land immediately upon the first respondent becoming desirous of selling the land. Burt CJ, with whom Wallace J agreed, referred to the reasons of Lord Templeman in Pritchard v Briggs in the course of which his Lordship expressed the opinion, which was obiter, that had the owners of the land in their lifetime in breach of the covenant contracted to sell the retained land, the condition controlling the pre-emptive right would be satisfied and the holder of the right of pre-emption would be entitled to buy and therefore be entitled to an equitable interest. Burt CJ said that he did not find the case to be of any assistance and that 'each case of this kind must … be decided upon the terms of the bargain' and 'not to be decided by attaching a label ‑ option, condition or contract, or right of pre-emption ‑ to the contractual provisions but by deciding upon the proper construction of the agreement precisely what was agreed'. The Chief Justice explained:
I can understand that a right of pre-emption, so called, upon its proper construction may be a conditional option so that when the condition is satisfied there is a standing and by that time an unconditional offer to sell so that 'the holder of the right of pre-emption would be entitled to buy and therefore entitled to an equitable interest'. But for that to happen it would, I think, be necessary, as was the case in Pritchard v Briggs (supra) that the price and the other terms necessary to establish a completed contract to buy and sell be agreed upon and expressed within the provisions conferring the pre-emptive right. If that be the case then it may be, the condition being satisfied, that the holder of the pre‑emptive right could accept what has then become the standing offer and so conclude an agreement which could be specifically enforced (372). (emphasis added)
That is, Burt CJ accepted that a right of pre‑emption may be construed as a conditional option so that on satisfaction of the condition the grantee acquires a right to buy and therefore has an equitable interest in the land. However, even if the right of pre‑emption or first refusal may be construed as a conditional option, it is only on the satisfaction of the condition that the grantee acquires a right to buy and therefore has an equitable interest in the land.

15.3 Clause 13 does not create a caveatable interest

Clause 13 of the Contract of Sale creates no interest in the undivided one‑twentieth share and hence no caveatable interest in the undivided one‑twentieth share. It makes no difference whether the right conferred on Mr Warren by cl 13 of the Contract of Sale is characterised as a right of pre‑emption or a conditional option. Until the condition in cl 13 that the purchasers wish to sell their undivided one‑twentieth share or give notice to that effect is satisfied the vendor has no right to buy the undivided one‑twentieth share. Until the condition is satisfied, cl 13 confers a merely contractual right and not an interest in land. It does not create a caveatable interest. There is reference in the correspondence between Mr Warren and Ms Hall, or their solicitors, to Ms Hall having given notice of her wish to purchase Mr Lawton's interest in the property but the case is pleaded and was argued on the basis that Ms Hall's request that Mr Warren consent to the transfer of Mr Lawton's interest to Ms Hall was a request to alter the joint tenancy pursuant to cl 14 and Ms Hall and Mr Lawton gave no notice under cl 13. It is not otherwise suggested that Mr Lawton and Ms Hall gave notice under cl 13 or that they were desirous of selling their undivided one‑twentieth share prior to Mr Warren lodging his caveat or at any time.
Mr Warren's claim for a declaration that cl 13 confers on him a caveatable interest in the one undivided twentieth share of the land and for orders dismissing the defendants' application for the removal of the caveat must be dismissed. In her counterclaim Ms Hall seeks a declaration that the plaintiff does not have the interest in the one‑twentieth share claimed in the caveat and seeks an order that the caveat be removed. There shall be an order that Mr Warren remove the caveat. I have found that Mr Warren does not have a caveatable interest in the undivided one‑twentieth share even if cl 13 of the Contract of Sale is valid and enforceable. In those circumstances it is appropriate to declare that Mr Warren has no proprietary or caveatable interest in the undivided one‑twentieth share.

15.4 No inquiry into loss caused by caveat

Ms Hall seeks an inquiry into the loss caused to her by reason of the lodgement of the caveat. Section 140 of the Transfer of Land Act provides that any person lodging any caveat with the Registrar without reasonable cause shall be liable to make to any person who may have sustained damage thereby such compensation as a judge shall deem just and order.
The test for determining whether a caveat is lodged without reasonable cause is not whether the caveator had a caveatable interest, but rather whether the caveator had an honest belief based on reasonable grounds that the caveator had a caveatable interest: Bedford Properties v Surgo Pty Ltd (1981) 1 NSWLR 106, 108 (Wootten J); Bolton v Excell (Unreported, WASCA, Library No 930175); Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419, 434 ‑ 436. The test is partly subjective and partly objective. It is subjective, in that it requires an examination of the caveator's actual belief and whether that belief was honest; and it is objective, in that it requires the belief to be based on reasonable grounds.
The onus of proving that the caveat was lodged without reasonable grounds rests on the claimant, Ms Hall. There is no evidence that Mr Warren did not honestly believe that he was entitled to lodge the caveat and the inference from all of the circumstances is that he did have such an honest belief. Whether there were reasonable grounds depends upon whether it was reasonable to believe that cl 13 of the Contract of Sale was valid and enforceable and gave rise to a caveatable interest. Notwithstanding that I have determined both of those issues against Mr Warren I am not satisfied that it was objectively unreasonable to believe that cl 13 gave rise to an entitlement to lodge a caveat. Accordingly, Ms Hall has not established that she is entitled to compensation on the grounds that Mr Warren lodged the caveat without reasonable grounds.

16. No declaration that Contract of Sale is the whole agreement

It is not appropriate to declare that the Contract of Sale is the whole of the agreement between Mr Warren on the one hand and Mr Lawton and Ms Hall on the other for the sale and purchase of the undivided one‑twentieth share. I have found that cls 6, 13, 14 and 15 are an unlawful restraint on alienation and unenforceable. I have found that, if cl 14 is valid, it should be implied in cl 14 that the Vendor shall not withhold his consent to an alteration of the joint tenancy without reasonable cause. I have also found that the Contract of Sale should be rectified so that the Lawton Hall Lot is specified as the Lawton Hall exclusive use area in place of the green area on the attached plan. Whether or not any other clauses are subject to implied terms is not a matter which has arisen in this action and it is not necessary or appropriate to decide that. In the circumstances, it is not appropriate to make the declaration sought by Mr Warren.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WARREN -v- LAWTON [No 3] [2016] WASC 285 (S)

CORAM: LE MIERE J

HEARD: 20 SEPTEMBER 2016

DELIVERED : 21 DECEMBER 2016

FILE NO/S: CIV 1372 of 2010

MATTER :Claim for an order for the dismissal of 1st and 2nd named first defendant's application under Section 138B of the Transfer of Land Act 1893 for the removal of caveat

BETWEEN: MARK DONALD WARREN
Plaintiff
AND
JOSEPH FRANCIS LAWTON
MOLLY ELIZABETH HALL
First Defendants
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Costs - Calderbank offer - Where outcome of offer and outcome of court order unknown - Whether rejection of offer unreasonable - Turns on own facts

Costs - Whether successful party should be deprived of some of its costs due to the introduction of issues on which it was unsuccessful - Turns on own facts

Costs - Special costs order - Whether matter was unusually difficult or complex - Special costs order - Turns on own facts

Legislation:

Property Law Act 1969 (WA)
Transfer of Land Act 1893 (WA), s 138B

Result:

Costs awarded

Category: B

Representation:

Counsel:

Plaintiff:    Ms J R Cass
First-named First Defendant     :    No appearance
Second-named First Defendant   :    Mr T O Coyle
Second Defendant          :    No appearance

Solicitors:

Plaintiff:    Jackson McDonald
First-named First Defendant     :    No appearance
Second-named First Defendant   :    McAuliffe Legal
Second Defendant          :    No appearance

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

Aljade & MKIC v OCBC [2004] VSC 351
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S)
Electricity Generation and Retail Corporation t/as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310 (S)
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435
Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394
O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S); (2008) 36 WAR 197
Warren v Lawton [No 3] [2016] WASC 285
LE MIERE J:

Background

I summarised the background to this matter in Warren v Lawton [No 3] [2016] WASC 285 as follows. The plaintiff, Mr Warren agreed to sell to the first defendants, Mr Lawton and Ms Hall, who I will sometimes refer to as the defendants, an undivided one‑twentieth share of Lot 2706, a rural land holding of about 80 ha near Margaret River. They agreed that Ms Hall and Mr Lawton would have the exclusive use and occupation of an agreed area and Mr Warren would have the exclusive use and occupation of the remainder of Lot 2706. Mr Warren, Mr Lawton and Ms Hall signed an agreement (the Contract of Sale).
The Contract of Sale included clauses to the following effect. First, Mr Warren shall be entitled to mortgage the whole of the land (cl 6). Secondly, Ms Hall and Mr Lawton shall be entitled to the exclusive use and occupation of the land coloured green on a plan attached to the Contract of Sale and Mr Warren shall be entitled to the exclusive use and occupation of the rest of the land (cl 9). Thirdly, each party shall be entitled to erect improvements on their exclusive use area which improvements shall remain the property of the party erecting them and may be removed at any time (cl 10). Fourthly, if Mr Lawton and Ms Hall wish to sell their undivided one‑twentieth share Mr Warren shall have an option to purchase it at a price equal to one‑twentieth of the unimproved market value of the whole of Lot 2706 (cl 13). Fifthly, Mr Lawton and Ms Hall shall hold their undivided one‑twentieth share as joint tenants and not alter the joint tenancy without the written consent of Mr Warren (cl 14). Sixthly, upon the death of the survivor of Mr Lawton and Ms Hall they shall be deemed to have given Mr Warren notice of intention to sell giving rise to his option to purchase (cl 15).
In 1995 Ms Hall and Mr Lawton agreed that Mr Lawton's interest in Lot 2706 be transferred to Ms Hall. Ms Hall requested that Mr Warren consent to the transfer and remove the caveat he had lodged over Ms Hall and Mr Lawton's undivided one‑twentieth share claiming an interest as optionee. Mr Warren consented to the transfer upon terms in a deed of assignment drafted by his solicitors. Ms Hall did not agree and did not execute the deed of assignment. Mr Warren did not withdraw his caveat and Ms Hall has not been registered as the sole proprietor of the undivided one‑twentieth share.
The relationship between Mr Warren and Ms Hall deteriorated. In October 2009 Ms Hall caused the second defendant, the Registrar of Titles, to issue to Mr Warren a notice under s 138B of the Transfer of Land Act 1893 (WA) to the effect that unless Mr Warren obtained from the court an order extending the operation of the caveat within 21 days the caveat will elapse. Mr Warren applied by originating summons for the operation of the caveat to be extended (the caveat proceedings). On 4 November 2009 the court ordered that the operation of the caveat be extended until further order. The caveat proceedings remain adjourned.
On 16 March 2010 Mr Warren commenced this action. Mr Warren initially sought an order dismissing the defendants' application under s 138B of the Transfer of Land Act for the removal of the caveat or alternatively an order that the Registrar of Titles dismiss the defendants' application for the removal of the caveat. Mr Warren also sought a declaration that he has a caveatable interest in the defendants' undivided one‑twentieth share of Lot 2706. Mr Warren subsequently amended his claim to also claim a declaration that the Contract of Sale represents the whole of the agreement between himself and the defendants for the sale and purchase of the undivided one‑twentieth share.
Ms Hall has brought a counterclaim in which she seeks a range of relief based on numerous causes of action. In his opening address counsel for Ms Hall said that Ms Hall has 10 causes of action. The first cause of action, as counsel described it, is that Mr Warren has no caveatable interest in the undivided one‑twentieth share. The second is that Mr Warren breached a collateral contract, or an implied term of the Contract of Sale, that, other than as required by law, Mr Warren would do nothing on Lot 2706 that would affect the peace and tranquillity of the Lawton Hall exclusive use area by clearing bush, generating noise and dust and encouraging or permitting members of the public, guests and tenants to use the access way to the Lawton Hall exclusive use area. Thirdly, Mr Warren breached an implied term of the Contract of Sale that he would not unreasonably withhold his consent to an alteration of the joint tenancy of the undivided one‑twentieth share. Fourthly, Ms Hall sought a declaration that the rights under cl 13 of the Contract of Sale, that is the right of first refusal or conditional option have expired. Ms Hall does not press that claim. Fifthly, Ms Hall claims rectification of the Contract of Sale to provide that the defendants be entitled to the exclusive use and occupation of an area which she describes as the Lawton Hall Lot in substitution for the green area on the plan attached to the Contract of Sale. Sixthly, Ms Hall says that Mr Warren unconscientiously took advantage of her special disadvantage by causing her to sign the Contract of Sale which contained terms which are unfair, unjust and unreasonable. Seventhly, Ms Hall says that Mr Warren was the purchasing agent of herself and Mr Lawton and as such or alternatively in all the circumstances Mr Warren owed her and Mr Lawton a fiduciary duty which he breached by charging them a price for the undivided one‑twentieth share that was in excess of its fair market value and causing them to sign a written agreement that contained terms that were unfair, unjust and unreasonable. Eighthly, Ms Hall says that the clauses of the Contract of Sale relating to Mr Warren mortgaging the whole land, giving him a right of first refusal (or conditional option), requiring his consent to alteration of their joint tenancy and providing that he may exercise his option to purchase on the death of the survivor of Mr Lawton and Ms Hall are an unlawful restraint upon Ms Hall's rights of alienation of her interest in the undivided one‑twentieth share and should be set aside. Ninthly, Ms Hall claims that by various actions of Mr Lawton or his tenant or invitees he has trespassed on Ms Hall's exclusive use and occupation area. Tenthly, Ms Hall seeks an order for sale of lot 2706 under s 126(2) of the Property Law Act 1969 (WA).
The trial in this matter took place on 3 ‑ 7, 11 and 20 August as well as 23 October 2015. I handed down my reasons for decision on 7 September 2016. I found that:
a.The Contract of Sale should be rectified by providing that the Purchasers are entitled to the exclusive use and occupation of the Lawton Hall Lot.
b.Clauses 6, 13, 14 and 15 of the Contract of Sale are an invalid restraint on alienation and unenforceable.
c.There is no collateral contract, or implied term, that except as required by law the Vendor would do nothing on Lot 2706 that would affect the peace and tranquillity of the Lawton Hall Lot.
d.If, contrary to my finding, cl 14 is enforceable, it is subject to the proviso that the Vendor will not unreasonably withhold his consent.
e.Mr Warren did not engage in unconscionable dealing.
f.Mr Warren did not breach any duties owing to Mr Lawton and Ms Hall as a purchasing agent or any fiduciary duties.
g.Mr Warren is liable for some acts of trespass on the Lawton Hall Lot.
h.It should be ordered pursuant to Property Law Act s 126(2) that Lot 2706 be sold and the proceeds divided between Mr Warren and Ms Hall.
i.Mr Warren does not have a caveatable interest in the Lawton Hall undivided one‑twentieth share in Lot 2706 and his caveat should be removed.
j.There should be no declaration that the Contract of Sale represents the whole of the agreement between Mr Warren and Mr Lawton and Ms Hall for the sale and purchase of the undivided one‑twentieth share in Lot 2706.

The parties could not come to an agreement on the orders to be made at the delivery of the reasons on 7 September 2016 and the motion for judgment was adjourned to 20 September 2016. On 20 September I heard argument in relation to the orders to be made, including the costs orders sought by both parties. I reserved my decision on the costs of the matter. For the reasons which follow the court will order that Mr Warren pay 75% of Ms Hall's costs and those costs should be assessed with a 75% increase to the limits on items 17 and 20(a) of the Scale.

The costs orders sought

Mr Warren's primary submission in respect of costs was that Mr Warren should pay the Ms Hall's costs of the action (including reserved costs) from 16 March 2010 to 22 December 2010; and Ms Hall should pay Mr Warren's costs of the action (including reserved costs) from 23 December 2010. This order was sought on the ground that Ms Hall had unreasonably rejected a Calderbank offer on 23 December 2010. Mr Warren alternatively submitted that he should pay 50% of Ms Hall's costs of the action, to be taxed if not agreed.
Ms Hall sought orders that Mr Warren pay her costs, including all costs reserved, to be taxed if not agreed. Ms Hall also sought the removal of the limits fixed by such Legal Profession (Supreme Court) (Contentious Business) Determinations (Scale) as might apply from time to time in relation to items 17, 20 and 33 (other work) and Ms Hall be at liberty to tax costs under item 34 of the Scale (travel).

Principles in relation to Calderbank Offers

The offeror of a rejected Calderbank offer bears the onus of satisfying the court that indemnity costs should be awarded: Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 [21]. The Court of Appeal in that case discussed the principles relevant to the rejection of a Calderbank offer. Buss JA (Wheeler JA agreeing) said (citations omitted in select passages):
A Calderbank offer will not justify an award of indemnity costs unless its rejection was unreasonable.
All of the relevant facts and circumstances must be considered in determining whether a party's rejection of a Calderbank offer was unreasonable.
The mere fact that the recipient of a Calderbank offer is ultimately worse off than he or she would have been had the offer been accepted, does not mean that its rejection was unreasonable.
As the Court of Appeal of Victoria noted in Hazeldene's Chicken Farm, deciding whether conduct is 'reasonable' or 'unreasonable' always involves matters of judgment and impression [24]. Although it is neither possible nor desirable to enumerate exhaustively all circumstances which must be taken into account, in a particular case, in deciding whether the rejection of a Calderbank offer was unreasonable, the Court of Appeal said that, ordinarily, regard should be had to, at least, the following:
(a)the stage of the proceeding at which the offer was received;
(b)the time allowed to the offeree to consider the offer;
(c)the extent of the compromise offered;
(d)the offeree's prospects of success, assessed as at the date of the offer;
(e)the clarity with which the terms of the offer were expressed; and
(f)whether the offer foreshadowed an application for ... indemnity costs in the event of the offeree's rejecting it. [25]. [16]-[19]

The Calderbank Offer

In a letter from Mr Warren's solicitor, MJ McPhee, to Ms Hall's solicitors, McAuliffe Legal, Mr Warren offered to agree to the following (the Offer). First, both parties engage independent qualified valuers to do a valuation of the unimproved value of Ms Hall's share of the land and the depreciated value of the improvements on Ms Hall's portion of the property. Secondly, the purchase price of the land be fixed at the average of the two valuations. Thirdly, the valuers do not communicate with one another. Fourthly, settlement occur within 90 days of the average being fixed with a 10% deposit. Fifthly, the action be dismissed with no order as to costs.
There was no mention of the offer foreshadowing an application for indemnity costs in the event it was rejected. This is relevant but rarely decisive. The offer allowed for a response to be sent by return or as soon as possible but no timetable for a response was set. McAuliffe Legal sent a response rejecting the offer on 27 January 2011.
Counsel for Ms Hall argued that the absence of any considered explanation as to the weaknesses in Ms Hall's position should weigh against a conclusion that its rejection was unreasonable. There is no general rule in relation to the effect of the absence of an explanation of the basis of why the offeree should accept an offer, though the extent to which the weakness of a party's position is already exposed may bear upon the significance of any absence: Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 [26] [27]; Aljade & MKIC v OCBC [2004] VSC 351 (Redlich J) [87].
Counsel for Ms Hall submits that the offer lacked clarity for the following reasons. First, this offer was to undertake a process rather than an offer of money. Secondly, the valuation proposed a valuation of the unimproved value of Ms Hall's share of the land and the depreciated value of the improvements on Ms Hall's share of the property. Counsel for Ms Hall submitted that it is unclear whether that takes into account the terms of the contract, which I found were detrimental to the value and would have reduced any value in Ms Hall's share of the property to no more than $5,000: Warren v Lawton [No 3] [57]. Counsel for Mr Warren submitted that the offer provided for a valuation of the entirety of Ms Hall's share of the lot. This is distinct from the contractual provision which provided that if Mr Warren purchased Ms Hall's interest it would be solely based on the one-twentieth value of the unimproved whole of the land.
Further, it was submitted that there is no evidence as to what value may have been fixed by the process. Counsel for Mr Warren submitted that the value of the offer can be assessed by the values which I found applied in Warren v Lawton [No 3]. I found the market value of the whole of the land at the date of the trial was $2,085,000 and the unimproved market value of the land was $1,125,000: Warren v Lawton [No 3] [60]. The two expert witnesses in that matter fixed a value to the structural improvements on Ms Hall's property at $65,000 and $50,000 respectively. Thus the value would have been between $106,250 and $121,250. Assuming the land is sold for the market value then Ms Hall would receive $104,250 less sale costs. Counsel for Mr Warren submitted that whatever value the land had would carry over into an assessment of the land at a different date (ts 944).
In assessing the value counsel for Mr Warren submitted I should ignore the issues of trespass for which I found Mr Warren liable as the amount awarded in respect of those claims is less than the difference between the offer and a one‑twentieth share in the market value of the Land. Further, the acts of trespass occurred after the date of the Offer.
The rejection of the offer was not unreasonable and therefore an indemnity costs order would not be justified in this case. The relief granted in this case was different to the resolution provided in the offer. Ms Hall sought an order for sale of lot 2706 under s 126(2) of the Property Law Act 1869 (WA). On 13 October I ordered that this occur and that the proceeds be divided between the parties according to their shares of the property. I am also not satisfied that the valuation which I accepted as the value of the property at the time of trial can be applied as the valuation at the time of the offer. The evidence before me in this matter cannot provide enough certainty as to the outcome of the process provided for in the Offer.
Further, it is not certain that the sale process which will take place will result in a price for the property which is greater or less than the market value as assessed at trial. It cannot be known whether Ms Hall would have been better off in a process where an amount is reached by dividing two valuations compared to the sale of the land via a real estate agent. The court is therefore not in a position to weigh the outcome of the trial against the Offer. Nor do the other circumstances of this case support a conclusion that the rejection of the Offer was unreasonable. I therefore cannot be satisfied that it was unreasonable for Ms Hall to reject the Offer, and therefore there should not be an order for costs to be paid on an indemnity basis.

Principles in relation to costs

The general principle is that costs should follow the event. Order 66 r 1(3) of the Rules of the Supreme Court 1971 (WA) states that where a party though generally successful in the action has, by the introduction of some issue or issues on which they have failed, increased the costs the court may order such party to pay the costs of such issue or issues. What is an issue depends upon the nature and way in which the case is conducted. The court has discretion to deprive a successful party of the costs of separate or discrete issues on which they have been unsuccessful and that discretion should be exercised with caution: see Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [6] ‑ [7]. The unsuccessful party must satisfy the court that there are good reasons why it should not pay the other party's costs: Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394, 407.
The Court of Appeal in Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310 (S) considered the exercise of the courts discretion to deprive a generally successful party of their costs and said the following.
Established practice in this State, and the authorities, suggest that the exercise of this power should be approached broadly, and as a matter of impression, and without an attempt at 'mathematical precision' which is likely to prove illusory…
Accordingly, the power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed, is properly exercised only where there are discrete and severable issues upon which the generally successful party has failed, and which have added to the cost of the proceedings in a significant and readily discernible way. In a case in which the generally successful party has failed on only a minor issue, which did not add materially to the cost of the conduct of the proceedings, it would not ordinarily be appropriate to depart from the general rule, unless the conduct of the generally successful party in relation to that issue had been unreasonable. In the event of unreasonableness, different considerations may apply. [6]-[7]

Should Mr Warren pay Ms Hall's costs

Mr Warren submitted that in the alternative to an indemnity costs order in their favour, they should pay 50% of Ms Hall's costs of the action to be taxed if not agreed. This would reflect that Ms Hall was unsuccessful in the peace and tranquillity claim, the fiduciary duty claim and the unconscionable dealing claim.
Ms Hall has introduced claims on which she was unsuccessful and, through the introduction and maintenance of those issues has caused a significant increase in the cost of these proceedings for both parties and an elongation of these proceedings. It would not be appropriate to order that Mr Warren pay only 50% of Ms Hall's costs, but it is appropriate to deprive Ms Hall of some of her costs in this case. I will order that Mr Warren is to pay 75% of the costs of Ms Hall.

Principles in relation to special costs order

The Legal Profession Act 2008 (WA) s 280 (2) provides the following:
if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following ‑
(a)order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in the determination;
(c)remove limits on costs fixed in the determination;
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
The 'matter' which must be unusually difficult, complex or important in order to enliven the power conferred by s 280(2) is the whole of the 'matter' in respect of which legal services were provided and which comes within the scope of the legal costs determination: Electricity Generation and Retail Corporation t/as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) (Electricity Generation) [5] (Martin CJ). Unusual means unusual having regard to what one might describe as the usual run of civil cases and it is a value judgment to be made by the court, which the court is particularly well qualified to make, having regard to the fact that the court has heard and determined the trial and can take into account the court's experience of the usual run of civil cases in the superior courts of the State: O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S); (2008) 36 WAR 197 [23] ‑ [24] (Martin CJ).
The function of the court in making a special costs order under s 280(2) is limited to setting the parameters within which the taxing officer will tax the relevant bill, and providing any specific directions which will assist the taxing officer to assess the quantum of the costs to be allowed on taxation. The quantum of costs to be allowed is to be determined by taxation. Therefore, the powers conferred upon the court by s 280(2) are to be exercised as a matter of impression rather than science, taking into account the greater expertise of taxing officers in fixing the amount of costs properly and reasonably allowed: Electricity Generation [4] (Martin CJ).

Special costs order

Ms Hall submitted that due to the unusual difficulty and complexity, the costs allowable under the relevant costs determination would be inadequate. Ms Hall sought an order permitting the taxing officer to assess the costs without regard to the limits applicable to items 17 (preparation of case), 20 (trial) and 33 (other work) of the Scale and that Ms Hall have liberty to apply under item 34 (travel). Item 33 does not have any limit, and counsel for Ms Hall at the hearing submitted that there should instead be an order that Ms Hall have liberty to apply under item 33 of the Scale.
My role is to set the parameters within which the taxing officer will tax the relevant bill and to provide any specific directions to assist the taxing officer to assess the quantum of the costs to be allowed on taxation. This purpose would not be served by including an order that Ms Hall should have liberty to apply under item 33 and item 34 of the Scale. I have not been asked to order that it is open for Ms Hall to include claims under those items in the bill. It remains open for Ms Hall to include amounts claimed under those items in any bill and that is a matter for the taxing officer. I will not order that Ms Hall have liberty to apply under item 33 and 34 of the scale for that reason.
I have found that due to the introduction of discrete issues on which Ms Hall was unsuccessful she should be deprived of some of her costs. However, it is still open for me to find that because of the unusual difficulty or complexity that a special costs order should be made to raise the limits available under the Scale.
Mr McAuliffe stated that the following factors evidenced the unusual difficulty or complexity of this matter. The number of issues arising from the facts, Mr Warren's conduct during the proceedings, the number of interlocutory applications and hearings, the number of mediations, the period over which the matter in dispute spread, the failure of Mr Warren to provide full discovery and the number of court documents filed during the proceedings. A number of observations should be made about these factors.
Firstly, there were a large number of claims in these proceedings. These included some claims brought by Ms Hall and on which Ms Hall was unsuccessful, being an issue about whether there was a collateral contract to protect the peace and tranquillity of the Lawton Hall Lot, whether Mr Warren had engaged in unconscionable dealing or whether he had breached any duties or fiduciary duties owing to Mr Lawton and Ms Hall. However, the issues also included a successful claim for rectification of the contract, a declaration that cls 6, 13, 14 and 15 of the Contract of Sale are an invalid restrain on alienation and unenforceable. I also found that if cl 14 was valid, it would be subject to the proviso that the vendor would not unreasonably withhold consent. Ultimately I also found that there should be an order for sale pursuant to the Property Law Act s 126. I also found that Mr Warren was liable for some acts of trespass on the Lawton Hall Lot although I only awarded damages of $500 for that trespass. Further Mr Warren claimed, unsuccessfully, that there should be a declaration that the contract of sale represents the whole of the agreement between the parties and that there be a declaration that he had a caveatable interest in the Lawton Hall Lot. This sample shows the breadth of the issues that were argued by the parties.
Secondly, I found that Mr Warren was in a number of respects not a credible witness and that he was not a satisfactory witness: Warren v Lawton [No 3] [31] ‑ [43]. Mr Warren's conduct as a witness was of such a kind that it had a detrimental and elongating effect on the trial. Further, notwithstanding that Mr Warren had found discoverable documents before providing a further and better list of documents, he had not included those documents in that list. I found his explanation of this to not be credible: Warren v Lawton [No 3] [35] ‑ [36]. Thirdly, The matters in dispute spanned over 33 years, the proceeding itself has taken place over six years, including three formal mediations, two interlocutory disputes and a trial of the matter which occurred over eight days. The amount of documents filed is also large and evidences the complexity of this matter.
I am of the opinion that this is an appropriate case for a special costs order. Looking at the above factors, and considering my knowledge of this case I am of the opinion that the amount of costs allowable under the items which deal with preparing for trial and for the fee on brief in respect of a matter under the costs determination are inadequate because of the unusual difficulty and complexity of this matter. It is not appropriate that the hourly rates be raised. In the exercise of my discretion I will fix new limits. The appropriate order is to raise the limits of item 17 by 75%, in item 20 the amount for the fee on brief should be raised by 75% but the limits for the other amounts under item 20 should stand.

Costs to be awarded in this case

The court will order that Mr Warren pay 75% of Ms Hall's costs and those costs should be assessed with a 75% increase to the limits on items 17 and 20(a) of the Scale.

Details

AGLC: Warren v Lawton [No 3] [2016] WASC 285
Case: [2016] WASC 285
Decision Date: 7 SEPTEMBER 2016

CaseChat Overview and Summary

In the matter of Warren v Lawton [No 3], the parties involved were Warren and Lawton, with the nature of the dispute centred on a contract and various associated legal claims. The case was heard in a court which adjudicated on the issues raised, providing a comprehensive judgment addressing the multifaceted legal challenges presented by the parties. The primary legal issues that the court was required to decide included the existence of a collateral contract, the enforceability of certain clauses in the contract, the applicability of fiduciary duties, and the appropriateness of a sale order under the Property Law Act. The court also needed to consider issues related to rectification, unconscionable dealing, and trespass.

The court's reasoning was meticulous, addressing each issue with detailed analysis. The court found that certain collateral contracts and implied terms were not applicable, given the specific facts of the case. It concluded that there was no fiduciary relationship between the parties and that the doctrine of rectification was not suitable. The court also determined that the defendant had not acted unconscionably and that the plaintiff's trespass claim was partially successful, resulting in a limited damages award. Furthermore, the court considered various equitable and property law principles, including the alienability of land and the factors to be considered when ordering a sale under the Property Law Act. The court exercised its discretion and found that a sale order was warranted.

The final orders included a declaration that certain clauses in the contract were invalid and unenforceable as they constituted an unlawful restraint on alienation. The court also granted an order for rectification of the contract, and ordered that the property be sold under section 126 of the Property Law Act. Additionally, the court awarded damages for trespass and ruled that certain costs should be taxed without regard to the limits specified in the relevant items of the Scale, due to the complexity and difficulty of the case. The court also deprived the defendant of some of her costs due to her unsuccessful claims.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The function of the court in making a special costs order under s 280(2) is limited to setting the parameters within which the taxing officer will tax the relevant bill, and providing any specific directions which will assist the taxing officer to assess the quantum of the costs to be allowed on taxation. The quantum of costs to be allowed is to be determined by taxation. Therefore, the powers conferred upon the court by s 280(2) are to be exercised as a matter of impression rather than science, taking into account the greater expertise of taxing officers in fixing the amount of costs properly and reasonably allowed: Electricity Generation [4] (Martin CJ). Ms Hall submitted that due to the unusual difficulty and complexity, the costs allowable under the relevant costs determination would be inadequate. Ms Hall sought an order permitting the taxing officer to assess the costs without regard to the limits applicable to items 17 (preparation of case), 20 (trial) and 33 (other work) of the Scale and that Ms Hall have liberty to apply under item 34 (travel). Item 33 does not have any limit, and counsel for Ms Hall at the hearing submitted that there should instead be an order that Ms Hall have liberty to apply under item 33 of the Scale. My role is to set the parameters within which the taxing officer will tax the relevant bill and to provide any specific directions to assist the taxing officer to assess the quantum of the costs to be allowed on taxation. This purpose would not be served by including an order that Ms Hall should have liberty to apply under item 33 and item 34 of the Scale. I have not been asked to order that it is open for Ms Hall to include claims under those items in the bill. It remains open for Ms Hall to include amounts claimed under those items in any bill and that is a matter for the taxing officer. I will not order that Ms Hall have liberty to apply under item 33 and 34 of the scale for that reason. I have found that due to the introduction of discrete issues on which Ms Hall was unsuccessful she should be deprived of some of her costs. However, it is still open for me to find that because of the unusual difficulty or complexity that a special costs order should be made to raise the limits available under the Scale. Mr McAuliffe stated that the following factors evidenced the unusual difficulty or complexity of this matter. The number of issues arising from the facts, Mr Warren's conduct during the proceedings, the number of interlocutory applications and hearings, the number of mediations, the period over which the matter in dispute spread, the failure of Mr Warren to provide full discovery and the number of court documents filed during the proceedings. A number of observations should be made about these factors. Firstly, there were a large number of claims in these proceedings. These included some claims brought by Ms Hall and on which Ms Hall was unsuccessful, being an issue about whether there was a collateral contract to protect the peace and tranquillity of the Lawton Hall Lot, whether Mr Warren had engaged in unconscionable dealing or whether he had breached any duties or fiduciary duties owing to Mr Lawton and Ms Hall. However, the issues also included a successful claim for rectification of the contract, a declaration that cls 6, 13, 14 and 15 of the Contract of Sale are an invalid restrain on alienation and unenforceable. I also found that if cl 14 was valid, it would be subject to the proviso that the vendor would not unreasonably withhold consent. Ultimately I also found that there should be an order for sale pursuant to the Property Law Act s 126. I also found that Mr Warren was liable for some acts of trespass on the Lawton Hall Lot although I only awarded damages of $500 for that trespass. Further Mr Warren claimed, unsuccessfully, that there should be a declaration that the contract of sale represents the whole of the agreement between the parties and that there be a declaration that he had a caveatable interest in the Lawton Hall Lot. This sample shows the breadth of the issues that were argued by the parties.

Actions

Citations

Warren v Lawton [No 3] [2016] WASC 285

Most Recent Citation

Mineral Resources Ltd v Pilbara Minerals Ltd [2016] WASC 338

Cases Citing This Decision

New Standard Energy PEL 570 Pty Ltd v Outback Energy Hunter Pty Ltd [2019] SASCFC 132
Citation 1 (Para 10)

…NSWSC 360 at [12] and [17] per Hamilton J; Maclag (No 11) Pty Ltd v Chantay Too Pty Ltd [2010] QSC 299 at [132] per McMurdo J; Warren v Lawton (No 3) [2016] WASC 285 at [151]-[152] per Le Miere J. See also Skiwing Pty Ltd v Trust Company of Australia [2006] NSWCA 276.…
Woodley v Woodley [2018] WASC 333
Citation 2

…1957] VR 200 Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 Warren v Lawton [2016] WASC 285 Watson v Foxman (1995) 49 NSWLR 315 Wilkins v Wilkins [2007] VSC 100 Woodley v Woodley [No 2] [2017] WASC 94 XL Petroleum (NSW) Pty Ltd v Caltex Oil…
Coralie Ann Corlett as Executor of the Will of Ferenc Kocsis v Field [2018] WASC 243
Citation 3 (Para 1)

…r co‑owners share impliedly precludes an exercise of a right to apply for and to obtain an order for sale of the land: Warren v Lawton [No 3] [2016] WASC 285 [234].…
Woolworths Ltd v About Life Pty Ltd [2017] NSWSC 1117
Citation 4 (Para 88)

…hndorf Golf Club Inc (2004) 88 SASR 334; [2004] SASC 128; Walker Corporation Pty Ltd v WR Pateman Pty Ltd (1990) 20 NSWLR 624; Warren v Lawton (No 3) [2016] WASC 285.…
Supreme Court of Western Australia [2016] WASC 285 (S)
Citation 5

…WARREN -v- LAWTON [No 3] [2016] WASC 285 (S)…
Mineral Resources Ltd v Pilbara Minerals Ltd [2016] WASC 338
Citation 6

…he Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646 THL Robina Pty Ltd v The Glades Golf Club Pty Ltd [2004] QSC 461 Warren v Lawton [No 3] [2016] WASC 285 Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] QSC 135; (2005) 2 Qd R 563 BANKS-S M ITH J :…
Hernals Pty Ltd as trustee for the Winterton Surgery Land Trust v Burger [2023] WASC 9
Citation 7 (Para 3)

…h v Woodhead [1990] WAR 62 ( Martin-Smith v Woodhead ); Mitchell v Cullington [1997] ANZ Conv R 342 ( Mitchell v Cullington ); Warren v Lawton [No 3] [2016] WASC 285 ( Warren v Lawton ). [3] Warren v Lawton [218] (Le Miere J).…
Wright v Lemon (No 2) [2021] WASC 159
Citation 8 (Para 2)

…2001] FCA 1865; (2001) 115 FCR 229 [11]; McKechnie v Connell (WASC, Nicholson J, Lib No 940023, 20 December 1993, unreported); Warren v Lawton [No 3] [2016] WASC 285 (S).…

Cases Cited

Statutory Material Cited

Harvey v Walker [2016] QDC 180
Citation 1

…94) 34 NSWLR 289 Giacci v Giacci Holdings Pty Ltd [2010] WASC 349 Grayson v Grayson (1922) St R Qd 155 Hall v Busst [1960] HCA 84; (1960) 104 CLR 206 Harvey v Walker (1945) 46 SR (NSW) 180 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 (1984) 156 CLR 41 In Re Cockerill; Mackaness v Percival (192…
Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469
Citation 2 (Para 2)

…d and which comes within the scope of the legal costs determination: Electricity Generation and Retail Corporation t/as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) ( Electricity Generation ) [5] (Martin CJ). Unusual means unusual having regard to what one might describe as the usual run of civil cases and it…
W & K Holdings (NSW) Pty Ltd v Laureen Margaret Mayo [2013] NSWSC 1063
Citation 3 (Para 1)

…ssed an appeal from the decision of the Full Court. The decision in Pukallus v Cameron was explained by Sackar J in W&K Holdings (NSW) Pty Ltd v Mayo [2013] NSWSC 1063. On appeal, the New South Wales Court of Appeal varied the orders of Sackar J but noted that no complaint was made on appeal concerning Sackar J's st…
Segal v Barel (No 2) [2013] NSWCA 148
Citation 4

…NSWLR 88 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 Segal v Barel [2013] NSWCA 92; (2013) 84 NSWLR 193 Stoneman v Lyons [1975] HCA 59; (1975) 133 CLR 550 W&K Holdings (NSW) Pty Ltd v Mayo [2013] NSWSC 1063 Western Metals Resources Ltd v Murrin Murrin E…
Kakavas v Crown Melbourne Ltd [2013] HCA 25
Citation 5

…0] HCA 19; (2010) 241 CLR 1 John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc [2004] SASC 128; (2004) 88 SASR 334 Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 London and South Western Railway v Gomm (1882) 20 Ch D 562 Louth v Diprose…
Segal v Barel [2013] NSWCA 92
Citation 6

…cDonald [1976] 1 NSWLR 88 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 Segal v Barel [2013] NSWCA 92; (2013) 84 NSWLR 193 Stoneman v Lyons [1975] HCA 59; (1975) 133 CLR 550 W&K Holdings (NSW) Pty Ltd v Mayo [2013] NSWSC 1063 Western Metals Resources…
Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396
Citation 7

…ey v Ryan [1956] HCA 81; (1956) 99 CLR 362 Bolton v Excell (Unreported, WASCA, Library No 930175) Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396; (2011) 82 NSWLR 665 Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; (1969) 121 CLR 432 Comme…
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39
Citation 8 (Para 1)

…te or discrete issues on which they have been unsuccessful and that discretion should be exercised with caution: see Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S) [6] ‑ [7]. The unsuccessful party must satisfy the court that there are good reasons why it should not pay the other party's costs: Nikolaou v Pa…
Giacci v Giacci Holdings Pty Ltd [2010] WASC 349
Citation 9

…3) 151 CLR 447 Commissioner of Stamp Duties v Carlenka (1995) 41 NSWLR 329 Elton v Cavill [No 2] (1994) 34 NSWLR 289 Giacci v Giacci Holdings Pty Ltd [2010] WASC 349 Grayson v Grayson (1922) St R Qd 155 Hall v Busst [1960] HCA 84; (1960) 104 CLR 206 Harvey v Walker (1945) 46 SR (NSW) 180 Hospital Products Ltd v Un…
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19
Citation 10

…ay (1879) 11 Ch D 645 JJ Savage & Sons Pty Ltd v Blakney [1970] HCA 6; (1970) 119 CLR 435 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc [2004] SASC 128; (2004) 88 SASR 334 Kakavas v Crown Melbourne Ltd [2013] HC…
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
Citation 11 (Para 1)

…ected Calderbank offer bears the onus of satisfying the court that indemnity costs should be awarded: Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 [21]. The Court of Appeal in that case discussed the principles relevant to the rejection of a Calderbank offer. Buss JA (Wheeler JA agreeing) said (…
Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] NSWCA 327
Citation 12

…rse Company [1901] 2 Ch 37 McCorquodale v Shell Oil (1932) 33 SR (NSW) 151 Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] NSWCA 327 New South Wales Medical Defence Union Ltd v Transport Industries Insurance Co Ltd (1986) 6 NSWLR 740 Nullagine Investments Pty Ltd v The Western Aust…
O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36
Citation 13 (Para 2)

…an take into account the court's experience of the usual run of civil cases in the superior courts of the State: O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S); (2008) 36 WAR 197 [23] ‑ [24] (Martin CJ).…
Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310
Citation 14 (Para 2)

…The Court of Appeal in Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310 (S) considered the exercise of the courts discretion to deprive a generally successful party of their costs and said the following. Established practice in this State, and the authorities, suggest that the exercise…
Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298
Citation 15 (Para 3)

…'s position is already exposed may bear upon the significance of any absence: Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 [26] [27]; Aljade & MKIC v OCBC [2004] VSC 351 (Redlich J) [87].…
John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc [2004] SASC 128
Citation 16

…5 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc [2004] SASC 128; (2004) 88 SASR 334 Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 London and…
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18
Citation 17

…Attwater v Attwater (1853) 52 ER 131 Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 Basely v Clarkson (1681) 83 ER 565 Bedford Properties v Surgo Pty Ltd (1981) 1 NSWLR 106 Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362 Bolton v Excell (Unre…
Western Metals Resources Ltd v Murrin Murrin East Pty Ltd [1999] WASC 257
Citation 18

…Lyons [1975] HCA 59; (1975) 133 CLR 550 W&K Holdings (NSW) Pty Ltd v Mayo [2013] NSWSC 1063 Western Metals Resources Ltd v Murrin Murrin East Pty Ltd [1999] WASC 257…
Bridgewater v Leahy [1998] HCA 66
Citation 19

…(Unreported, WASCA, Library No 930175) Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396; (2011) 82 NSWLR 665 Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; (1969) 121 CLR 432 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (19…
Louth v Diprose [1992] HCA 61
Citation 20

…(2013) 250 CLR 392 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 London and South Western Railway v Gomm (1882) 20 Ch D 562 Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621 Manchester Ship Canal v Manchester Racecourse Company [1901] 2 Ch 37 McCorquodale v Shell Oil (1932) 33 SR (NSW) 151 Moraitis Fre…
Nikolaou v Papasavas, Phillips & Co [1989] HCA 11
Citation 21 (Para 1)

…party must satisfy the court that there are good reasons why it should not pay the other party's costs: Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394, 407.…
Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64
Citation 22

…155 Hall v Busst [1960] HCA 84; (1960) 104 CLR 206 Harvey v Walker (1945) 46 SR (NSW) 180 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 (1984) 156 CLR 41 In Re Cockerill; Mackaness v Percival (1929) 2 Ch 131 In Re Ridley; Buckton v Hay (1879) 11 Ch D 645 JJ Savage & Sons Pty Ltd v Bla…
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14
Citation 23

…eahy [1998] HCA 66; (1998) 194 CLR 457 Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; (1969) 121 CLR 432 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 Commissioner of Stamp Duties v Carlenka (1995) 41 NSWLR 329 Elton v Cavill [No 2] (1994) 34 NSWLR 289 Giacci v Giacci Holdings Pt…
Pukallus v Cameron [1982] HCA 63
Citation 24 (Para 4)

…nce of the mistake common to both parties and Ms Hall must be able to show precisely the correction that is needed: Pukallus v Cameron [1962] HCA 63; (1982) 180 CLR 447.…
Stoneman v Lyons [1975] HCA 59
Citation 25

…Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 Segal v Barel [2013] NSWCA 92; (2013) 84 NSWLR 193 Stoneman v Lyons [1975] HCA 59; (1975) 133 CLR 550 W&K Holdings (NSW) Pty Ltd v Mayo [2013] NSWSC 1063 Western Metals Resources Ltd v Murrin Murrin East Pty Ltd [1999] WASC 257…
JJ Savage & Sons Pty Ltd v Blakney [1970] HCA 6
Citation 26

…4) 156 CLR 41 In Re Cockerill; Mackaness v Percival (1929) 2 Ch 131 In Re Ridley; Buckton v Hay (1879) 11 Ch D 645 JJ Savage & Sons Pty Ltd v Blakney [1970] HCA 6; (1970) 119 CLR 435 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 John Nitschke Nominees Pty Ltd v Hahn…
Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4
Citation 27

…illage Pty Ltd v Gora [2011] NSWCA 396; (2011) 82 NSWLR 665 Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; (1969) 121 CLR 432 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 Commissioner of Stamp Duties v Carlenka (1995) 41 NSW…
Fontin v Katapodis [1962] HCA 63
Citation 28 (Para 4)

…be clear evidence of the mistake common to both parties and Ms Hall must be able to show precisely the correction that is needed: Pukallus v Cameron [1962] HCA 63; (1982) 180 CLR 447.…
Hall v Busst [1960] HCA 84
Citation 29

…SWLR 329 Elton v Cavill [No 2] (1994) 34 NSWLR 289 Giacci v Giacci Holdings Pty Ltd [2010] WASC 349 Grayson v Grayson (1922) St R Qd 155 Hall v Busst [1960] HCA 84; (1960) 104 CLR 206 Harvey v Walker (1945) 46 SR (NSW) 180 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 (1984) 156 CLR 41…
Blomley v Ryan [1956] HCA 81
Citation 30

…ings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 Basely v Clarkson (1681) 83 ER 565 Bedford Properties v Surgo Pty Ltd (1981) 1 NSWLR 106 Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362 Bolton v Excell (Unreported, WASCA, Library No 930175) Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396; (2011…
Nullagine Investments Pty Ltd v The Western Australian Club Incorporated [1992] HCATrans 308
Citation 31

…td v Transport Industries Insurance Co Ltd (1986) 6 NSWLR 740 Nullagine Investments Pty Ltd v The Western Australian Club Incorporated [1993] HCA 45; (1993) 177 CLR 635 Pannizutti v Trask (1987) 10 NSWLR 531 Pata Nominees Pty Ltd v Durnsford Pty Ltd (1988) WAR 365 Pritchard v Briggs [1980] Ch 338 Pukallus v Cameron […
Aljade and MKIC v OCBC [2004] VSC 351
Citation 32 (Para 3)

…absence: Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 [26] [27]; Aljade & MKIC v OCBC [2004] VSC 351 (Redlich J) [87].…

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