Re Merle Plant v Duralla Pty Ltd Qld G56 of 1983 Trade Practices [1983] FCA 339 (14 December 1983)

FEDERAL COURT OF AUSTRALIA

Re: MERLE PLANT
And: DURALLA PTY. LTD.
QLD G56 of 1983
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.

CATCHWORDS

TRADE PRACTICES - purchase of a home unit by the applicant "off the plan" - applicant seeks a declaration that she is not contractually bound to purchase the unit and return of the deposit paid - alleged misrepresentation in respect of "sea views" from the unit and "finance" - whether representation as to finance within s.66 of the Auctioneers and Agents Act (Qld) - plea of non est factum in relation to circumstances surrounding execution of an agreement - leave to amend Statement of Claim to plead that these circumstances constituted a contravention of the Trade Practices Act - failure to comply with s.49 of the Building Units and Group Titles Act (Qld).

Trade Practices Act, s.52

Auctioneers and Agents Act 1971-1981 (Qld), s.66

Building Units and Group Titles Act 1980 (Qld), s.49

HEARING

BRISBANE
14:12:1983

ORDER

1. There be judgment for the applicant for the sum of $11,595.00.

2. The respondent's cross-claim is dismissed.

3. The respondent pay the applicant her taxed costs of and incidental to these proceedings, including reserved costs, if any.

DECISION

The substance of the dispute between the parties in this proceeding concerns whether the applicant is obliged to complete the purchase of a home unit, Lot 22 "Cleveland Waters", at Cleveland near Brisbane, or is entitled to a refund of the monies which she has paid by way of deposit. The applicant seeks to escape the purchase on a bewildering multiplicity of grounds, and the respondent, the developer of "Cleveland Waters", has cross-claimed for a declaration that there is an enforceable contract in existence between the parties although the time for performance has not yet arrived.

In April 1982, the applicant contacted Patrick Fitzpatrick, the Managing Director of the respondent's Real Estate Agent, P.A. Fitzpatrick and Co., in response to a newspaper advertisement in relation to the proposed development of "Cleveland Waters". The applicant informed Mr Fitzpatrick that she was soon to leave her employment and that she wished to purchase for her residence a unit with a view of the sea with her savings and an anticipated superannuation payment. In the course of the discussion, Mr Fitzpatrick provided the applicant with a document relating to the proposed "Cleveland Waters" development and it was arranged that she should visit the site, the southern boundary of which faces Middle Street, Cleveland, which continues past the site in an easterly direction for about 300 meters to the water front of Moreton Bay. Immediately to the south of the eastern end of Middle Street, there is a car-parking area and a terminal for a ferry service between Cleveland and Stradbroke Island.

In their initial meeting, the applicant and Mr Fitzpatrick discussed the possibility that the applicant would purchase Unit 7 which it was contemplated would be on the ground floor facing south towards Middle Street. The applicant visited the site during the weekend following her discussion with Mr Fitzpatrick and formed the impression, correctly one would think, that there would not be a view of the sea from Unit 7.

On 14 April, the applicant and a friend, Mr Bolton, again visited Mr Fitzpatrick. The applicant informed Mr Fitzpatrick of her "keen desire to get a good view of the water" and that she doubted whether Unit 7 would meet her requirements. Mr Fitzpatrick suggested Unit 22, which was to be built one floor higher than Unit 7 and on the north-eastern corner of the building. To the east of that part of the "Cleveland Waters" site, and between that site and Moreton Bay to the east, stands a home largely hidden behind a substantial mango tree and a substantial avocado tree, both of which are located in the backyard of the home. There is also a large silver gum tree situated upon the "Cleveland Waters" site immediately to the south of the mango and avocado trees. To the north of that part of the "Cleveland Waters" site, and between it and Moreton Bay to the north, which is a considerable distance away, there is another home, which is somewhat dilapidated but low-set.

There is a dispute between the applicant, who also called Mr Bolton to give evidence, and Mr Fitzpatrick in respect to what was said in their meeting on 14 April. I did not form an adverse view of the honesty of any of the witnesses who gave evidence in this matter. Nor did I accept without reservation what was said by any of them except Mr Melit, the controlling director of the respondent other than some brief evidence which he gave apparently directed to a plea of estoppel, to which I refer below. Although each seemed to me to believe the truth of what she or he stated, I thought that the evidence of each of the applicant, Mr Bolton, and Mr Fitzpatrick included, with the passage of time, reconstruction in addition to recollection. In a general sense, I preferred the applicant's account of the conversations which took place between her and Mr Fitzpatrick to his evidence of what occurred. Mr Fitzpatrick's memory of the events in question seemed relatively poor and his conviction that he had done nothing wrong caused him to respond somewhat emotionally to questioning.

I find that Mr Fitzpatrick did inform the applicant that she would have a good view of the waters of Moreton Bay from Unit 22 both to the east from the unit balcony and to the north from the living room windows. He did not, as she claims, state to her that it would be possible to see across to Stradbroke Island from the balcony, nor did he state, as he claims, that she would be able to see not Stradbroke Island but the Stradbroke Island vehicular ferry. They discussed the trees and Mr Fitzpatrick said that, while there was to be some clearing, the respondent intended to retain as many trees as possible but they would not spoil the view. The evidence does not reveal whether or not the applicant was aware that the mango and avocado trees are not on the "Cleveland Waters" site.

Unit 22 was more expensive than Unit 7. The applicant was hesitant, particularly because she had not commenced her retirement and received her superannuation and there was, as she informed Mr Fitzpatrick, some doubt as to the amount of her entitlement. Mr Fitzpatrick considered the purchase of Unit 22 a good investment. He had himself agreed to purchase the two units adjoining Unit 22 to the south and there was a suggestion by him that he would join the applicant in the purchase of Unit 22 if she had insufficient funds. What was suggested was not that funds could be lent to her but that he would "go halves" with her in the purchase, i.e., that each would pay half the purchase price and that the unit would be transferred to both of them. However, the applicant's interest was in the unit as a residence, not an investment. I am satisfied that she rejected Mr Fitzpatrick's suggestion and that that possibility was never again adverted to prior to these proceedings. There was to be a price rise the following week in respect of the unsold units, a rise of $10,000 in the case of Unit 22. The applicant was anxious to obtain the unit at its then current lower figure. She made a decision to purchase Unit 22 on 14 April 1982 and then and there signed a document in the form of an agreement to purchase, a copy of which is Exhibit 1 in these proceedings. The agreed purchase price was $115,950.00.

Although part of the view of Moreton Bay to the east from the balcony of Unit 22 is effectively impeded by the mango and avocado trees, I was satisfied at the trial that such a view in that direction as was described by Mr Fitzpatrick to the applicant would result from a sufficient lopping of the silver gum tree on the "Cleveland Waters" site and Mr Melit gave evidence, which I believed, that the respondent would carry out such an exercise if Mr Fitzpatrick did make the statement and the applicant was obliged to complete the purchase. Indeed, shortly after the conclusion of the trial, the respondent applied on motion to re-open the case to adduce evidence that the silver gum tree had been lopped and that further photographs since that time revealed that there was now a view from the balcony to the east, and particularly the south-east, which included the waters of Moreton Bay and Stradbroke Island. The attempt to introduce this evidence was opposed by the applicant who, however, sought in the alternative to tender photographs taken by her solicitor since the tree had been lopped. I permitted the evidence to be adduced, whilst reserving the question whether the trial should be re-opened and the evidence admitted. I do not have to decide that question but note that the photographs do show that Stradbroke Island can be seen from the balcony and that there are markedly improved views of Moreton Bay although at the cost of considerable damage to the silver gum tree.

However, no such view as was described by Mr Fitzpatrick exists to the north. I accept the evidence of the applicant and reject the evidence of Mr Fitzpatrick in that respect. For all practical purposes there is no view of Moreton Bay to the north from the living room windows.

I am also satisfied that the applicant believed and relied in part upon Mr Fitzpatrick's statements. She had initially contemplated purchasing Unit 7. She had been to the site and realized that that unit would not provide her with the view which she wanted. It was because of her desire for water views that Unit 22 was suggested to her. Unit 22 was more expensive than Unit 7. It was because of the views which she expected to enjoy from Unit 22 that the applicant chose that unit. Her expectation was based in part upon her own inspection and knowledge but she was also influenced by what Mr Fitzpatrick said because of his occupation and experience.

However, what Mr Fitzpatrick conveyed to the applicant was obviously merely his opinion. He patently could do no more than tell her what he believed would be the position which is what he did. The applicant had been to the site, was familiar with the surrounds, and knew the general nature of the building to be constructed. It was apparent that an exercise of judgment was involved. Mr. Fitzpatrick's opinions were genuinely held. His statements were made honestly and without any degree of recklessness although they proved incorrect. Indeed, I am satisfied that, while he no doubt used his best endeavours to sell the unit to the applicant, Mr Fitzpatrick at all times gave her his sincere advice, however mistaken it proved to be.

After the applicant had signed Exhibit 1 on 14 April, she paid an initial deposit of $5,797.50, being 5% of the purchase price. Later, in October 1982, a similar sum by way of balance deposit was paid at the request of the respondent's solicitors as is acknowledged by paragraph 14 of the respondent's Defence.

The document signed by the applicant on 14 April was signed in something of a hurry and was not read through or completed prior to signature. The applicant was concerned principally to see that Unit 22 was correctly referred to and that the price was correctly stated and she gave evidence that she was aware that there might be some details to be inserted into the agreement by Mr Fitzpatrick. However, she did not expressly authorize him to do so, and he rejected any suggestion that it was open to him to add to or alter the document after signature by the applicant. In fact, the document was deficient as an agreement to purchase in a number of respects. It had been signed by the applicant in the incorrect position, it did not include any schedule of finishes or plans, it contained a number of omissions, and there was no completed and duly signed statement as required by s.49 of the Building Units and Group Titles Act 1980 (Qld) ("the Building Units Act").

A short period after 14 April, Mr Fitzpatrick telephoned the applicant to say that he needed her to sign another agreement to purchase as Exhibit 1 had been signed in the wrong place. Mr Fitzpatrick's secretary called on the applicant by arrangement with a further document which the applicant signed. This time, schedules of finishes and plans were included. A statement in purported compliance with s.49 of the Building Units Act formed part of the document. The statement has been signed by Mr Fitzpatrick who has received no authorization to do so from the respondent. It does not appear from the evidence whether that statement was signed by Mr Fitzpatrick before or after the document was signed by the applicant. Further, the document still contained a number of omissions, including omissions in the purported s.49 statement, although, in respect of all but one, the appropriate details were contained in other parts of the document.

As the document which Mr Fitzpatrick's secretary brought to the applicant stood at the time when it was signed by the applicant, clause 3(a) provided:
SETTLEMENT:

3(a) Settlement shall take place within twenty-one (21) days after notice from the vendor's solicitors to the purchaser or his solicitor that the relevant building units plan has been registered at the Real Property Office, Brisbane PROVIDED THAT if the building units plan is not registered by the day of 198 , then either party may cancel the contract by written notice to the other or its or his solicitors and on cancellation all money paid by the purchaser hereunder shall be refunded without deduction and neither party shall have any claim against the other party under this agreement PROVIDED FURTHER . . . "

From what the applicant had been told by Mr Fitzpatrick prior to her signing any document, the expected completion date of the project was December 1982 - January 1983, which fitted in with the applicant's retirement plans and proposed overseas trip. In fact, although the building is substantially, if not entirely, constructed, the building units plan has yet to be registered.

The document signed by the applicant when brought to her by Mr Fitzpatrick's secretary is Exhibit 9 in these proceedings. However, the document is now different from when it was signed by the applicant. Since that time, a clerk in the employ of the respondent's solicitors has filled in the gaps, including inserting the date 31 December 1983 in clause 3(a) and inserting some details in the part of the document which purports to be a statement in compliance with s.49 of the Building Units Act, namely the Lot number of Unit 22, the name and address of the applicant as purchaser, and the date of the statement. It does not appear whether these additions were made before or after the respondent signed Exhibit 9. The respondent has admitted that the insertions referred to were made into Exhibit 9 after the applicant signed it and were made without her prior approval or consent. It was not suggested that there had been any reference to the applicant of 31 December 1983 for the purposes of clause 3(a) or that such a date for that purpose was acceptable to her. No copy of Exhibit 9 was retained by the applicant or provided to the applicant or anyone on her behalf until 6 September 1983, in circumstances referred to below.

For reasons which were never revealed, the contracts which had been executed in relation to the units at "Cleveland Waters" were unacceptable to the solicitor for the respondent's financier. In or about June 1982, Mr Fitzpatrick again telephoned the applicant and asked her to call around to his office to sign another copy of the contract. All the details, including the date 31 December 1983 in clause 3(a) and a statement containing the information required under s.49 of the Building Units Act, were contained in a document now dated 24 June 1982 signed on or about that date by the applicant and the respondent. The statement in purported compliance with s.49 of the Building Units Act has been signed by Mr Melit, who was authorized to do so on behalf of the respondent. It does not appear from the evidence whether the respondent had signed the document or Mr Melit had signed the s.49 statement when the document was signed by the applicant. A copy of the document dated 24 June 1982 is Exhibit 5 in these proceedings. No copy of Exhibit 5 was retained by the applicant or provided to her or anyone on her behalf until 9 May 1983, in circumstances referred to below.

The applicant did not read Exhibit 5 before she signed it. She did no more than glance at the front page to confirm that the unit number and the price were correctly stated. It was not then dated. The respondent did not seek to suggest that it was then dated either by evidence or by cross-examination of the applicant and the inference which I draw from her evidence overall is that the date 24 June 1982 did not appear on Exhibit 5 when the applicant signed it. The effect of the applicant's evidence, which I accept, was that what was said to her led her to believe that Exhibit 5 was merely a further original copy which was required additionally to the contract which was already signed. I find that no explanation was given to the applicant why she was required to sign a further document and that what was said to her did not convey to her that what she was asked to sign was to constitute a fresh contract. Further, I have unhesitatingly concluded that Exhibit 5 was presented to her for signature on the basis that it did not differ from what she had agreed to and from what she had already signed and, indeed, there is absolutely nothing to indicate that either the applicant or Mr Fitzpatrick was aware, when the applicant signed Exhibit 5, that it contained a provision in clause 3(a) to which she had never agreed and which did not really accord with what had been stated to her concerning the anticipated completion date.

The applicant had the document of which Exhibit 1 is a copy over night on 14 April 1982 and during that period she made a photostat copy of it. Apart from that, until May 1983, she neither was given nor retained a copy of any of the documentation. It is by no means clear from the evidence precisely when any contract might have been concluded; that is to say, when and in what order the respective parties signed Exhibit 5 or Exhibit 9, which are the documents relied on by the respondent, or when there was communication of offer and acceptance, or of the execution of the documents. However, there seems no reason to doubt that there was a concluded contract, subject to the matters now raised by the applicant, by about October 1982, as the respondent asserts in paragraph 14 of its Defence, in which it refers to its solicitors' request for the balance deposit and the applicant's payment of that sum.

In November 1982, after she had returned from her overseas trip, the applicant inspected the project. She had conversations with Mr Fitzpatrick in which she expressed disappointment.

The tenor of the applicant's conversations with Mr Fitzpatrick and her attitude in and after November 1983 can be gleaned from a letter which she wrote to him dated 4 March 1983:

"Dear Pat,

. . .

I am hoping - and asking - that you set aside a little time to give some personal attention to my proposed purchase of home unit No. 22 at "Cleveland Waters".

As you know, I entered into this contract in April 1982 with the expectation that completion was reasonably expected about January 1983. I retired from my employment in July 1982 and travelled overseas for several months, returning to Australia in November 1982 - the main reason being to ensure my presence at finalisation of the contract.

Whilst construction of the block of units is well-advanced, I must be realistic in now expecting completion to be in April.

I have recently been down to see the unit and am still most disappointed with the view; from your early description and the brochure, I feel that I had a reasonable expectation of water-views which was my primary desire when I signed the contract. Such is not the case]

I have been concerned for some time about the situation and, with settlement becoming imminent, it is necessary for me to now take more positive action. The main reason being that my income currently is derived solely from the earnings on my investment - all of which I would have to pay and still fall short of settlement figure. As I explained my holiday cost more than I'd planned and my superannuation pay-out was based on partial not total ill-health. Then too the real-estate scene has changed so much from when we first spoke.

I am sure, Pat, you will understand my concern and the urgent need to clarify my coming financial situation, so that I can plan my future with the minimum of distress and risk.

Because of this and my difficulties in obtaining employment, I feel my best course of action is to sell the unit for a reasonable price.

I do appreciate the interest you have shown so far and the time and advice you have given me but am sure you will understand my present concern. I thought they may "come across" better on paper.

Pat, when next talking to "your lass" at Cleveland will you ask her to really try to "push" No. 22. I don't want a panic-sale at a loss but we may be optimistic trying for that extra $5,000. What do you think? Will you give it some thought please.

I am going in for an interview for a temporary job next week - for 3 or 4 weeks in the city - but will give you a ring soon. If you have any suggestions, will you let me know. . . .

. . . Perhaps we can have lunch one day?

Bye now - Sincerely, Merle."

By May 1983, the building had not been completed and the applicant had not

been able to sell Unit 22. She approached solicitors and provided them with a copy of Exhibit 1. At their request, she approached Mr Fitzpatrick for a further copy of the agreement and was given a document which she handed to her solicitors which has become Exhibit 4 in these proceedings. Exhibit 4 is some sort of a compilation which is not a copy of any document in the form in which it was signed by either party and neither party seeks to attribute to it any significance in these proceedings. The applicant's solicitors wrote to the solicitors for the respondent requesting a copy of the contract of sale and were provided with a copy of Exhibit 5 under cover of a letter of 9 May 1983. Neither the applicant nor her solicitors received a copy of Exhibit 9 until considerably later.

By two separate notices dated 2 June 1983, the applicant purported to avoid what was described as a contract of sale dated 14 April 1982 for the purchase of Unit 22 on the grounds that material alterations had been made to it without her knowledge or authority subsequent to her execution of it, that it was void for uncertainty, that she was induced to enter into it by misrepresentations "to the effect:

(a) That the said property sold would have good views of the sea;

(b) That the building in which the said unit was to be contained would be completed by December, 1982 or January, 1983.",

and pursuant to s.49 of the Building Units Act on the grounds:

"(a) That the original proprietor failed to give to the abovenamed purchaser a statement in compliance in every respect with Subsections (1),

(2), and (3), of Section 49 of the said Act;

(b) That the statement given to the said purchaser in purported compliance with Section 49 of the said Act:-

(i) Failed clearly to identify the lot to which the statement purported to relate;

(ii) Failed to state the name and/or the address of the said purchasers;

(iii) Failed to set out or be accompanied by, particulars of the proposed lot entitlement of every proposed lot and the proposed aggregate lot entitlement;

(iv) Failed to state the date on which the said statement was given;
(v) Was not signed by the original proprietor or on his behalf by a person authorised in writing by the original proprietor in that regard."

No reference was made in the notices dated 2 June 1983 to any contract dated

24 June 1982. The substance of the applicant's position seems to have been that she had agreed to purchase the unit in April 1982 not June 1982, an attitude which is consistent with her claim that all she was asked to sign when she signed Exhibit 5 was a further original copy of the contract which she had already signed. Accordingly, notwithstanding that it was a copy of Exhibit 5 which had been provided by the respondent's solicitors on 9 May 1983, the possibility of a contract dated 24 June 1982 was effectively ignored by the applicant and her solicitor when notices purporting to rescind were given in June 1983.

These proceedings were commenced by an Application filed on 19 August 1983. At the first directions hearing on 6 September 1983, the respondent relied upon the document dated 24 June 1982 as a contract of that date. Further, in the court precincts after that directions hearing, the respondent's solicitor provided the applicant's solicitor with a copy of what is now Exhibit 9. A further notice dated 9 September 1982 was given purporting to avoid what was described as a purported contract of sale dated 24 June 1982 in reliance upon s.49 of the Building Units Act on the same grounds as those contained in the earlier notice of 2 June 1983.

The respondent seeks a declaration that "the agreement dated 24 June 1982 or in the alternative the agreement dated 14 April 1982" is an enforceable contract. The applicant seeks a declaration that she is not contractually bound to purchase Unit 22 and return of the money which she has paid. She pleads that she was induced to sign Exhibits 9 and 5 and to pay the money paid by way of deposit by misleading or deceptive conduct within the meaning of s.52 of the Trade Practices Act 1974 ("the Trade Practices Act"), namely misrepresentations that:

(a) the said building was to be so constructed that there would be from the said unit when it was completed, a good view of the sea to the north

and to the east as far as Stradbroke Island;

(b) . . .

(c) That in the event that the Applicant was unable to finance the purchase of the said unit, that it would make arrangements for sufficient finance suitable to the Applicant or "go halves" with her in the said purchase."

Each of the representations was allegedly false and known by the respondent's agent to be false or made recklessly by the agent not knowing whether it was true or false. The misrepresentations are also alleged to constitute contraventions of sub-ss. 53(a) and/or (c) and/or (e) and para. 53A(1)(b) of the Trade Practices Act, although the applicant's argument did not separately refer to any of those provisions which do not for present purposes appear to add anything to s.52. The applicant also pleaded but did not argue that the statements which constituted the alleged misrepresentations were warranties which were broken. What was relied upon in the final version of the applicant's Statement of Claim in order to establish both the breach of the alleged warranties and the falsity of the alleged misrepresentations, and indeed their fraudulent character (although fraud was not mentioned), was that:

(a) the said building is not, and was not at the material time to be so constructed that there will be from the said unit when completed any view

of the sea such as was represented;

(b) . . .

(c) the Respondent and/or the said Agent, had no intention at the material time of making suitable provision for finance for the Applicant, nor any intention of 'going halves' with her in the purchase in the event that she was unable to finance the said purchase;"

The alleged representation (c), set out above, is also asserted to be a

representation, promise or term with respect to the availability of finance for defraying wholly or in part the purchase price of the unit within s.66 of the Auctioneers and Agents Act 1971-1981 (Qld), which finance the respondent has failed and/or refused to make available to the applicant. It is pleaded that the applicant was not aware that finance was not so available until about 9 May 1983 and that on or about 2 June 1983, within three months after she first became aware that such finance was not so available, the applicant avoided the contract pursuant to s.66 of the Auctioneers and Agents Act.

The applicant also has pleaded and argued that Exhibit 9 was rendered void by material additions and/or alterations made without her knowledge, approval or consent namely, the addition to clause 3(a). She also pleaded that further or alternatively the agreement was at all material times void for uncertainty and unenforceable but that plea was not made the subject of argument.

Reliance is also placed by the applicant upon s.49 of the Building Units Act. In relation to Exhibit 9, she has pleaded that, in breach of its obligation under that section, the respondent -

(i) Failed to give to the Applicant any statement in compliance or

purported compliance with the said Section;

(ii) Failed to give to the Applicant a statement in compliance with the said Section which:

(a) Clearly identified the Lot or proposed Lot to which the statement related;

(b) Stated the name and address of the purchaser;

(c) Set out or was accompanied by particulars of the proposed Lot entitlement of every proposed Lot and the proposed aggregate Lot entitlement;

(d) Stated the date on which the Statement was given;

(e) Was signed by the original proprietor or on his behalf by a person authorised in writing by the original proprietor in that regard."

The applicant has alleged that she first became aware of the breaches particularized on or after 5 May 1983 and that on 2 June 1983, within 30 days of her first becoming aware of the breaches, by notice in writing given to the respondent which it is admitted is the original proprietor, she duly avoided the agreement.

Section 49 of the Building Units Act is also raised in relation to Exhibit 5. The applicant alleges that, in breach of s.49 of the Building Units Act, the respondent failed to give her any statement in writing in compliance with the said section or failed to give her a statment which did comply in that the statement which was given failed to state the date on which the statement was given and was not signed by the original proprietor or on its behalf by a person authorised in writing in that regard. According to the applicant, she first became aware of the failures on or after 8 September 1983 and, on 9 September 1983 and within 30 days of her first becoming aware of the failures particularised, she avoided the contract by a notice in writing given to the respondent as original proprietor.

Exhibit 5 was also attacked by the applicant on an additional ground. According to the applicant in her pleading, she signed the document in the following circumstances:

(1) The said Agent told the Applicant that he would look after her affairs

relating to the contract of the 14th day of April 1982;

(2) The said Agent requested the Applicant to sign a document, he at that time representing to her that a signature on a document was necessary. The said Agent neither showed the Applicant the document to be signed nor did he indicate to her the nature of the document;

(3) The Applicant signed the said document referred to in the last preceding paragraph preposing trust and confidence in the said Agent, and in the belief that it was a document ancillary to the said agreement of the 14th day of April 1982 and was not itself a contract."

It was alleged by the applicant that, in the premises, she was mistaken as to the nature of Exhibit 5 and that she never intended to sign it as a contract and is not bound by it.

1. The alleged misrepresentations with respect to
"sea views" and "finance"

On the findings which I have made there was no conduct which contravened any of the provisions of the Trade Practices Act to which the applicant made reference in her pleading or submissions by misrepresentations as to "sea-views" or "finance".

Mr Fitzpatrick predicted better views than the unit in fact enjoys but in doing so he made an honest and reasonable mistake. What he said accorded with his genuine and reasonable opinion. His suggestion of a possible joint investment was likewise sincere. In any event, that suggestion was not a factor which played any part in any decision which the applicant made or any step which she took or refrained from taking. Further, although it is unnecessary in the circumstances to express a concluded opinion on this issue, my tentative view is that, neither under the general law nor s.84 of the Trade Practices Act, could the respondent be made responsible for Mr Fitzpatrick's suggestion on his own behalf of a joint transaction between himself and the applicant.

In the circumstances, there is no occasion for me to consider the clause numbered 16 in each of Exhibit 5 and Exhibit 9 by which it was in effect provided that the documentation constituted a comprehensive charter and that the applicant had not been induced to enter it by any representations. I should add that the respondent's counsel conceded that clause 16 could not avail the respondent against the applicant's case insofar as it was founded on the Trade Practices Act.

Nor is there any call to consider whether, by the events between November 1982 and May 1983, including her letter of 4 March 1983, the applicant elected not to rescind or interrupted the chain of causation between the respondent's conduct and her own position.

The respondent pleaded a curious defence that the applicant was estopped from relying upon the alleged representations because the respondent "in reliance on the execution of the said agreements by the applicant and in the belief that the applicant was therby bound to purchase the said unit, made no further endeavours to sell the said unit" and "thereby suffered a detriment". The point is plainly misconceived, but, in the circumstances, that is unimportant. I would not, in any event, have been prepared on the evidence to make the findings on which the asserted estoppel is said to depend.
2. The Auctioneers and Agents Act

The findings which I have made also are sufficient to dispose of the applicant's attempt to rely upon the Auctioneers and Agents Act. However, I should add that in my opinion this part of the applicant's case was in any event without foundation. The applicant completely failed to establish that she was not aware that "finance" was not available until about 9 May 1983 or that she purported to avoid any contract within 3 months after she first became aware that "finance" was not available. Further, what was said to the applicant was, in my opinion, wholly outside the operation of s.66 of the Auctioneers and Agents Act: cf Applewood Pty Ltd v. Dadinbridge Pty Ltd (1983) 1 QdR 412.
3. Warranties

The references to warranties in the Statement of Claim seem to have been merely a pleader's flourish. No claim to relief was ultimately advanced on this basis. In any event, no such claim could have succeeded consistently with my findings.
4. Uncertainty

Once again, although pleaded, this contention was not argued. Neither Exhibit 5 nor Exhibit 9 is in the slightest uncertain, nor was Exhibit 9 uncertain before the additions were made. Although the addition to clause 3(a) made a material alteration to Exhibit 9, the omission of any date from that clause at most left the power of cancellation which it contains ineffectual but by no means touched the efficacy of the document as a binding contract if it recorded what had been agreed and was otherwise unobjectionable. The other insertions merely repeated details to be found elsewhere in the document. Plainly these omissions did not affect its enforceability; the details would, in any event, have been supplied in the process of interpretation: cf. Fitzgerald v. Masters (1956) 95 C.L.R. 422, 426-427.
5. Exhibit 5

The respondent's primary claim is to a declaration that Exhibit 5 constitutes an enforceable contract. It is convenient to consider that question, before consideration of Exhibit 9.

The applicant's answer is formulated as a plea of non est factum. As the case developed, this part of the case really involved two elements, the inclusion of the date 31 December 1983 in clause 3(a) without the knowledge of the applicant and the applicant's belief that she was only signing a copy of a pre-existing contract, not a fresh contract.

The former matter would not support a plea of non est factum or, in the circumstances, a claim for rectification to delete the date: see Taylor v. Johnson [1983] HCA 5; (1983) 57 A.L.J.R. 197. No question of specific performance presently arises and it is accordingly unnecessary to consider whether, if there was no objection otherwise, specific performance would be granted of Exhibit 5 in its present form. Indeed, the applicant would be unlikely to wish the date deleted from clause 3(a) since it seems to provide her with the possibility at this stage that any contract will be able to be cancelled and, after the end of this month, the date will be irrelevant if the building units plan has been registered.

As I have indicated, I accept that the applicant was led to believe that she was signing only a copy of an existing contract. However, other considerations aside, the applicant simply does not fall within the limited class of persons entitled to avail themselves of the defence of non est factum (Petelin v. Cullen [1975] HCA 24; (1975) 132 C.L.R. 355, 359-360), and her attempt to escape on that basis accordingly fails.

It does not necessarily follow that the applicant is bound by Exhibit 5. Somewhat surprisingly, in view of the wide range of claims which she made, the applicant's reliance upon the circumstances surrounding her execution of Exhibit 5 was relatively confined. No plea of fraudulent misrepresentation was justified and it may well be that clause 16 would have excluded any attempt to rely upon innocent misrepresentation. However, as I have previously noted, the respondent conceded that clause 16 did not constitute an answer to a claim by the applicant founded on a contravention of the Trade Practices Act.

Although the applicant did not plead until after the trial that the circumstances surrounding the execution of Exhibit 5 constituted a contravention of the Trade Practices Act, she did plead those circumstances in connection with her plea of non est factum, those circumstances were investigated in the evidence, and the Trade Practices Act was raised by the applicant in connection with Exhibit 5 although the contravention was differently particularised. Since I am satisfied that to do so will cause no unfairness to the respondent, I concluded, although not without some hesitation, that I should consider whether the applicant has made out a claim under the Trade Practices Act in respect of the circumstances surrounding Exhibit 5 which entitles her to escape from it as a binding contract. Accordingly, when the proceedings came back before me after the conclusion of the hearing on the respondent's motion to re-open the trial and adduce further evidence, after hearing from Counsel for each party, I gave the applicant leave to amend; cf. Katsilis v. The Broken Hill Pty Ltd Co Ltd (1977) 52 A.L.J.R. 189.

I have found that the applicant was led to believe that Exhibit 5 was not a fresh contract but a further copy of what she had already signed and that it was presented to her for signature on the basis that it did not differ from what she had agreed to and had already signed. That conduct related to an existing state of affairs and whether it was misleading or deceptive did not depend on the knowledge or intention or other state of mind of the respondent or its agent. If, as the respondent now asserts, Exhibit 5 including clause 3(a) constitutes a binding contract as a fresh agreement, entered into when signed by the parties on or about 24 June 1982, it is not easy to imagine a clearer case of misleading conduct. I have no doubt but that the applicant signed Exhibit 5 because of what she was so led to believe.

There is no question of an election to affirm Exhibit 5 by the applicant or that her position has ceased to be caused by what induced her to sign Exhibit 5. There is no evidence of any act or omission by the applicant with the requisite knowledge of Exhibit 5 that was relied on by the respondent which is inconsistent with her decision to avoid such a contract and resist its implementation: see, e.g. Ciavarella v. Balmer [1983] HCA 26; (1983) 57 A.L.J.R. 632.

The applicant has purported to rescind Exhibit 5 if it constituted a contract. She did not rely on the present ground, but that is of no consequence: Shepherd v. Felt and Textiles of Australia Ltd [1931] HCA 21; (1931) 45 C.L.R. 359.

In any event, I would have concluded that the applicant avoided the contract constituted by Exhibit 5 pursuant to s.49 of the Building Units Act. It is unnecessary to give separate consideration to the applicant's contentions insofar as they relate to the possibility that the statement contained in Exhibit 5 was not dated or signed by Mr Melit at the time when the applicant signed the document.

Sub-sections (1), (3) and (5) of s.49 of the Building Units Act provide:

"(1) An original proprietor shall give to the purchaser of a lot or of a proposed lot a statement in writing in compliance in every respect with

the requirements of this section.

(2) A statement in writing under this section shall -

. . .

(f) state the date on which the statement is given; . . .

. . .

(3) A statement in writing under this section shall -

(a) be given by the original proprietor to the purchaser before the purchaser signs any contract, agreement or document whatsoever legally binding or intended to bind the purchase legally in respect of the sale; or

(b) form part of a contract, agreement or document referred to in paragraph (a).

. . .

(5) If the original proprietor fails to give to a purchaser -

(a) a statement in compliance in every respect with sub-ss. (1), (2) and (3);

. . .

the purchaser may void the contract, agreement or other document signed by him in relation to the original proprietor by notice in writing given to the original proprietor within 30 days after he first becomes aware of the failure:

. . . "

The respondent did not suggest that para. 49(3)(a) of the Building Units Act

had been satisfied. However, a statement in writing purportedly given under s.49 does form part of Exhibit 5. But, quite apart from any question concerning whether that statement was signed or dated when the applicant signed Exhibit 5, no copy of Exhibit 5 was available to the applicant until 9 May 1983, something more than 10 months after Exhibit 5 was signed by the applicant on the respondent's case.

In Deming No. 456 Pty Ltd v. Brisbane Unit Development Corporation Pty Ltd (an as yet unreported judgment of the High Court delivered on 16 November 1983,) a purchaser of a home unit in a building intended to be constructed in Brisbane sought to escape the contract, of which it had been given a copy upon execution, by reference to s.49 of the Building Units Act. One of the purchaser's grounds related to an alleged failure by the vendor to comply with para. 49(2)(f).

The statement relied upon by the vendor, in Deming, supra, showed its date as 13 August 1981 which was the date on which the form of contract in triplicate was forwarded to the purchaser for execution. The forms of contract were, after execution by the purchaser and certain guarantors, returned to the vendor. The contract, which was dated 25 October 1981, was then executed by the vendor and an executed copy was sent to the purchaser under cover of a letter of 28 August 1981.

It is convenient to quote from the joint judgment of the majority, Mason, Deane and Dawson JJ. At p.18 of the transcript of their reasons their Honours said:

"In the courts below, there was some discussion of the question whether the forwarding to the purchaser for execution of the form of contract incorporating the Statement signed by Mr Bradford itself constituted giving, under s.49(3)(a), of a statement in writing to the purchaser. In our view it did not. Sub-section (3) of s.49 identifies two alternative means by which the obligation imposed by sub-s.(1) to 'give' the statement in writing to the purchaser can be satisfied. The first is by giving it to the purchaser before the purchaser signs the contract. The second is by incorporating the statement in writing as part of the contract. The forwarding of a contract, for execution and return, incorporating the required statement is an unmistakable intimation of an intention that the statement is to be given in the manner provided for in sub-s.(3)(b). Moreover, the requirement to 'give a statement' in writing which has been signed by or on behalf of the original proprietor involves delivery of such a statement on the basis that it may be retained by the purchaser. That requirement is not satisfied by the mere delivery of a document for execution and return. . . . It follows that the question whether the vendor complied with its obligations under s.49(1), (2) and (3) of the Act falls to be determined by reference to whether the Statement incorporated as part of the contract satisfied the requirements of this section."

At pp. 22-23, their Honours dealt with an alleged failure to satisfy para. 49(2)(f). They said:

"Section 49(2)(f) provides that a statement in writing under the section shall 'state the date on which the statement is given'. The statement in the Ninth Schedule was dated 13 August 1981. It contained no statement of

the date on which it was 'given'.

As has been said, s.49(3) provides two alternative means of satisfying the requirement of s.49(1) that an original proprietor give, to the purchaser of a lot, a statement in writing in compliance with the section. The first of those alternatives involves the actual giving of the statement to the purchaser. The second is that the statement in writing forms part of the relevant contract, agreement or document. When the requirement to give a statement to the purchaser is satisfied by the statement forming part of the relevant contract, agreement or document, it may never be 'given' to the purchaser in the ordinary meaning of that word. Indeed, if the form of contract incorporating the required statement was, in an exceptional case, prepared by the purchaser, s.49(1) could be satisfied without any document containing the statement ever having passed from the original proprietor to the purchaser.

The requirement that a statement under s.49 state the date on which it is 'given' is inappropriate to the case where the statement constitutes part of the relevant contract, agreement or document. In such a case, the statement will speak as of the date of the contract, agreement or document. The provisions of s.49(2)(f) should be construed as being inapplicable to such a case. It follows that it was unnecessary that the statement in the Ninth Schedule set out a date on which it was said to have been 'given'. In so far as other subsections of s.49 operate by reference to the date on which the statement under s.49(1) was 'given', they should be construed, in a case such as the present, as referring to the date upon which the contract, agreement or document of which the statement forms part became effective or operative.

Their Honours' comment in the passage last quoted concerning the exceptional

case in which it is the purchaser who prepares a form of contract (and who may be the last to execute it) does no more than leave open the possibility that the statutory requirement "to give" a statement under s.49 may be satisfied if a signed contract including such a statement is retained by the purchaser or if there is an exchange of signed copies of a contract including such a statement. That was not the situation which was of concern in Deming's Case, and is not the situation here.

In Deming, the common Queensland practice in relation to unit sales by a developer had been followed. The purchaser had signed a number of copies of a form of contract which had then been returned to the developer and signed by it. Read in that context, the quoted passage from pp 22-23 of the majority judgment lends no support to the respondent's submission that, where an original proprietor proceeds under para. 49(3)(b) and not para. 49(3)(a) of the Building Units Act, no more is required than that the statement under s.49 form part of the contract and, even where the purchaser does not have a copy of the contract, there is no necessity for a copy of the contract to be provided to the purchaser by the original proprietor either when the contract becomes operative or indeed at any time.

On p.23 the majority in Deming expressed the opinion that where a statement under s.49 forms part of a contract the provisions of para 49(2)(f) are inapplicable and said:

"Insofar as other sub-sections of s.49 may operate by reference to the date on which the statement under s.49(1) was 'given', they should be construed, in a case such as the present, as referring to the date upon which the contract agreement or document of which the statement forms part became effective or operative."

Earlier in the same passage, their Honours had referred to the statements speaking as of the date of the contract. Plainly, they did not have to mind the possibility that a contract might become effective or operative without the purchaser having a copy of the contract. At p.18, they had rejected the proposition that a statement forming part of the contract was given to the purchaser for the purposes of s.49 when the form of contract incorporating the statement was forwarded for signature, saying that "the requirement 'to give a statement' . . . involves delivery of such a statement on the basis that it may be retained by the purchaser."

Section 49 does not expressly state when the purchaser must be given a copy of a statement which forms part of a contract but what is necessary is an obvious inference. Paragraph 49(3)(b) must be read with sub-s. 49(1), which imposes the fundamental obligation on an original proprietor to give a purchaser a statement in writing in compliance in every respect with the requirements of s.49, and with sub-s.49(5) which provides the consequence if the original proprietor "fails to give to a purchaser" such a statement. Where para. 49(3)(b) is relied upon, in my opinion what is required is that at least a purchaser who does not have a copy of the contract of which the statement under s.49 is said to form part must be provided with one at the latest when the contract becomes operative. In this case, as I have indicated, that was no later than October 1982.

Accordingly, it was open to the applicant to avoid the contract in relation to the respondent by notice in writing given to the respondent within 30 days after the applicant first became aware of the failure: that is to say, within 30 days after the applicant not only had knowledge that a statement containing the specified material had not been given, but had an awareness that the fact that such a statement had not been given constituted a "failure" to do something which the Building Units Act said should be done: Deming, supra, in the majority judgment at p.26.

The evidence in relation to the applicant's "awareness" in respect of the respondent's failure to give her a statement in compliance with s.49 of the Building Units Act with respect to Exhibit 5 is very unsatisfactory. She knew of Exhibit 5 in May 1983. She also then knew of the Building Units Act and what it required of the respondent. She also knew that she had not been given any statement under s.49 which complied with its requirements in respect of Exhibit 5. Nonetheless, it seems that she did not believe that there had been any failure by the respondent because she believed that Exhibit 5 did not constitute a contract between her and the respondent. A particular difficulty with this view is that it is plain from Exhibit 12, which includes the letter by which Exhibit 5 was provided by the respondent's solicitors to the applicant's solicitor, that the respondent was asserting that Exhibit 5 constituted a contract. There seems to be no difficulty in a purchaser acting under sub-s. 49(5) whilst maintaining as a primary attitude that there is no need to do so because there is no contract for other reasons, and that is in fact the course adopted by the applicant in September 1983 when the respondent continued to assert its reliance upon Exhibit 5.

However, even if the applicant ought to be taken to have been aware in May 1983 that the respondent as original proprietor had failed to give her a statement in compliance with s.49 in respect of Exhibit 5 and that it was accordingly in breach of the Building Units Act if it was correct in its contention that Exhibit 5 constituted a contract, she nonetheless seems to me entitled to succeed. On 2 June 1983, within 30 days after she first became aware of the respondent's failure to comply with s.49 on any view of the matter, a notice said to be given pursuant to s.49 and purporting to avoid her contract to purchase Unit 22 in "Cleveland Waters" was given by the applicant to the respondent. No one suggests that as at that or any other date there were in fact two such contracts. On the present hypothesis, whereby the respondent relies upon Exhibit 5 as the contract between itself and the applicant for the sale and purchase of Unit 22, it was the only material contract in existence as at 2 June 1983. Particularly in the circumstance surrounding the execution of Exhibit 5 and the respondent's responsibility for the confusion which existed in the mind of the applicant, and in the absence of any possible basis upon which it might be suggested that the respondent was or could have been misled by the applicant's notice of 2 June 1983, there seems to me no difficulty in treating that notice as a notice applicable to the contract which then existed, namely that constituted by Exhibit 5, nor any need to treat the notice as vitiated by the misdescription of the date of the contract.

Accordingly, for the reasons which I have given, in my opinion the respondent is not entitled to a declaration that Exhibit 5 constitutes a binding contract between the parties. On the contrary, in my opinion, the applicant duly avoided that contract prior to the commencement of these proceedings and is entitled to the return of the monies which she paid by way of deposit.
6. Exhibit 9

The conclusion at which I have arrived, which upheld the respondent's primary contention that Exhibit 5, when executed, did constitute a contract between the parties, itself poses an insuperable obstacle to any attempt by the respondent to obtain a declaration that Exhibit 9 is now an enforceable contract. It is plain that the respondent itself intended Exhibit 5 to supersede Exhibit 9, which was unacceptable to its financier.

It is also plain from what I have said above in relation to Exhibit 5 that s.49 of the Building Units Act provides the applicant with a complete answer in respect of Exhibit 9. Indeed, her position in respect of Exhibit 9 is stronger by far. Even now, the statement purportedly under s.49 which forms part of Exhibit 9 is signed only by Mr Fitzpatrick who had no authorization to do so. Further, at the time when the applicant signed Exhibit 9 the statement omitted a number of requisite particulars. Those particulars had been inserted by the time a copy of Exhibit 9 was provided to the applicant's solicitor in September 1983 but, on any view of the matter, the applicant gave a notice under sub-s. 49(5) within time in respect of any contract dated 1j April 1982 between her and the respondent for the sale and purchase of Unit 22 in "Cleveland Waters".

In any event, any attempt by the respondent to rely upon Exhibit 9 seems to me to be hopeless. It was altered in a material respect after it was executed by the applicant. The evidence does not even establish whether the alterations occurred before or after it had been signed by the respondent. For all that has emerged, it may be that the respective versions of Exhibit 9 signed by the applicant and the respondent were materially different. If so, quite apart from s.11 of the Property Law Act 1974 (Qld), Exhibit 9 did not constitute a concluded contract between the parties: cf. Bridle Estates Pty Ltd v. Myer Realty Pty Ltd (1977) 51 A.L.J.R. 743.

Accordingly, the respondent's claim in the alternative that Exhibit 9 is a concluded contract also fails. If it ever constituted a binding contract, it has been avoided by the applicant and she is entitled to the return of the monies paid by way of deposit.

For the reasons which I have given, there will be judgment for the applicant for the sum of $11,595.00 and the respondent's cross-claim will be dismissed. The respondent must pay to the applicant her taxed costs of and incidental to these proceedings, including reserved costs if any.