Al Maha Pty Ltd v Coplin

Uncontroversial facts

1. Between Judgment [97] and [187], the primary judge sets out a detailed summary of the relevant events from late September 2014 to 23 October 2014. That narrative includes extracts from relevant email communications between Mr Coplin, Mr Fox, Ms Tait and HWL Ebsworth, and the four conversations between Mr Coplin and Mr Fox. It is not necessary to repeat that detailed narrative in these reasons. It is sufficient, before turning to the primary judge's reasoning and the arguments in the appeal, to emphasise aspects of those uncontroversial facts.
2. Mr Coplin purchased the Canberra Avenue property in April 2013 for $1.177 million. During the relevant period, he was employed in a "responsible job as a credit manager". The area of land considered likely to be rezoned to high density residential included Canberra Avenue, Holdsworth Avenue and Marshall Avenue. In September 2014, a property in Holdsworth Avenue sold for $2.725 million.
3. On 2 October, Mr Fox, acting for Al Maha, made an unsolicited offer to purchase Mr Coplin's property for $2 million, with settlement to occur after 18 months and a five per cent deposit (two per cent payable on exchange). He also stated Al Maha's preference that exchange occur "expeditiously". In his email response on the same day, Mr Coplin advised that the offer had been "referred for external advice". That was not correct. He also indicated the offer was "OK" subject to the full five per cent deposit being released on exchange. And he agreed to expeditious settlement provided that the vendor prepared the contract for sale.
4. On the evening of Friday, 3 October, Mr Coplin sent a further email to Mr Fox referring to costs he would incur if he "decided to sell [his] home now and not in 18 months". That email requested that a cash deposit of $70,000 be released on exchange to meet those costs. It concluded by indicating that, subject to this matter, he would be "willing to accept the other terms of the offer … and start the process from [his] end". Mr Fox's response thanked Mr Coplin for his "solicitor's comments" but asked him to reconsider the cash deposit. The comments to which Mr Fox referred were in fact made by Mr Coplin, as responses to commercial terms proposed in Mr Fox's earlier email.
5. The second telephone conversation occurred shortly after that response. Mr Fox said his client was interested in houses in Canberra Avenue because they could be "amalgamated" and answered in the affirmative Mr Coplin's question whether the offer of $2 million made to him was the same as that made at that time to his neighbour (who ultimately sold by auction on 23 October 2014). That answer was correct: Judgment [178].
6. The next communication - the third telephone conversation - occurred at about 1:30PM on Tuesday, 7 October. Mr Fox advised his client's agreement to $70,000 being released on exchange and requirement for a "put and call option with the sale". Mr Coplin enquired what that was, to which Mr Fox responded that it was "so the buyer doesn't have to pay the stamp duty upfront". Two further email communications followed later that day. In the first, Mr Coplin stated that he was "waiting for [his] solicitor to confirm that she can handle the put and call option", and confirmed the agreement to $70,000 deposit being released on exchange. Again, that reference to awaiting a response from his solicitor was not correct. In the second email, Mr Fox confirmed that his client's solicitors would draft the agreement and advised that the deposit arrangement would be incorporated into the sales advice, which would be drawn up upon his receiving Mr Coplin's "solicitor's details".
7. On Wednesday, 8 October, Mr Coplin requested that the sales advice be sent to VDM Conveyancing, which was done late in that evening. On Friday, 10 October at 11:16am, Mr Fox sent an amended sales advice to VDM Conveyancing, which replied immediately indicating that it did not act for Mr Coplin. He in turn responded to Mr Fox shortly after noting that "VDM was unable to negotiate the option" and that, as a result, he would need to "reconsider the offer with another representative and would come back to [Mr Fox] next week". Mr Fox recommended a conveyancer at a firm of solicitors, and noted that he "look[ed] forward to hearing from [Mr Coplin] next week".
8. Mr Coplin next contacted Mr Fox by email at 11:47am on Tuesday, 14 October to propose that the contract price be increased by a further $200,000. That email stated: Re: offer to purchase 7 Canberra Ave Hi Tim, I have now obtained advice from Vanessa Tait, principal of VJ Tait & Associates about the offer from [Al Maha] and/or Nominee to purchase my home at … Canberra Avenue via Put and Call Option. I have also contacted two real estate agents in the St Leonards South area. Recent sales in this area have achieved record prices. In Holdsworth Avenue, [one address] sold last month for $2.7 ml. This was on 557 sqm - my block of land is 669 sqm. I suggest viewing the latest St Leonards South Strategic Plan by Lane Cove Council. The concepts include rezoning my property to High Density with a floor ratio up to 5:1 and over 8 floors in height. I expect to see developers in the next few months paying in excess of $2.5ml for big blocks like mine which are close to St Leonards station. It will be first in, best dressed for them. Unlike my neighbour who has his home for auction (on a smaller block of 631 spm) I am happy living here. But I am prepared to enter into a put and call option with your client for a sale in 18 months if the price is fair - and that price is $2.2 ml. [emphasis added]
9. Mr Coplin's references to having obtained advice from Ms Tait and contacted two real estate agents were not correct. He had approached Ms Tait for a quote of fees and perused two real estate brochures, which provided him with the information recorded in the email. More significantly, the email stated his understanding at that time of the effect of the proposed put and call option, being that the sale of his property (unlike that of his neighbour) would be deferred by 18 months. The practical assumption underlying that statement was that the options would not be exercised before 18 months had elapsed.
10. Mr Fox asked by email that Mr Coplin telephone him. In their fourth and final conversation, Mr Fox requested the details of his "new conveyancer". Mr Coplin passed that request onto Ms Tait in an email also sent to Mr Fox. Mr Coplin's email confirmed that Mr Fox was "aware the price is $2.2ml", that being the price proposed to Mr Fox but not yet agreed.
11. Several emails were exchanged on Wednesday, 15 October 2014. At 11:11am, Mr Fox sent copies of the option agreement and contract for sale to Ms Tait. He requested that she "finalise/read both documents" and indicated his expectation that Mr Coplin and his client would meet that day at Ms Tait's office "with a view to finalising a deal". At 11:34 am, Ms Tait responded that her office had been "flooded last night" and that it would be better if any meeting between the clients was "tomorrow morning". She undertook to respond once she had "looked through" the "paperwork". Both emails were copied to Mr Coplin and HWL Ebsworth. At 11:36am, Mr Coplin instructed Ms Tait by email, copied to Mr Fox, that she was not to liaise with HWL Ebsworth or Mr Fox until he and Ms Tait had "received documentation which reflects a price of 2.2mil". At 12:05pm, Mr Fox emailed Mr Coplin and Ms Tait advising that he now had "agreement at $2.2M on the basis we exchange today". By the same email, he requested that HWL Ebsworth send amended documents to Ms Tait.
12. At 12:11pm, Mr Coplin sent Mr Poole the following email: (Blue 532) Request for Legal Services - Sale of Real Estate Property Dear Mr Poole, This is Iraklis Gary Coplin. I have received an offer for my property. The buyer wants to purchase this via a put and call option, with settlement in 18 months time. The solicitor for the buyer will prepare the option deed in the contract rather than [blank space, sentence unfinished]. Please let me know if your firm is prepared to assist me and the costs for each; 1. Review of the option deed and arrange execution; 2. Review the contract and arrange execution. If you have any questions, feel free to call me on my mobile [number supplied] or on this email address.
13. As matters turned out, Mr Coplin did not speak to Mr Poole before 23 October 2014. The evidence did not suggest that he took any further steps to contact Mr Poole or that he advised Ms Tait that he proposed at any time before 23 October to take advice from a solicitor. At 12:37pm on 15 October, HWL Ebsworth sent Ms Tait the amended option deed and front pages of the contract for sale annexed to an email stating that its client would "exchange today on the above" and requesting advice "whether [her] client is agreeable with the same". The amended purchase price of $2.2 million was again described as "on the basis that exchange occurs today". Ms Tait responded at 5.34pm. Her email, which enclosed a letter requiring amendments to the option deed and attached contract for sale, included: Coplin Sale to Al Maha Pty Ltd Dear Shanna, Attached is correspondence in respect to the Option Deed and contract submitted earlier today by you. I have met with my client this afternoon and submit this with his knowledge and look forward to your return of re-engrossed documents so that we can proceed to exchange. I can meet with him again tomorrow afternoon if all is in order with a view to finalising and exchanging on Friday [17 October 2014] in the city.
14. Mr Coplin accepted that he had met Ms Tait in her office on that afternoon but maintained that the email and proposed amendments were not sent "with his knowledge" (Black 49D, N). His evidence was that he was not troubled by Ms Tait's proposal to exchange on 17 October because it accorded with his plan to consult with Mr Poole (Black 62R-W).
15. The letter to HWL Ebsworth attached to Ms Tait's email included two amendments which require mention. First, it proposed an alternative definition for the "Put Option Exercise Period" to clarify that it began at 9am on the day after the 18 month "Call Option Period" expired and ended at 4pm seven days later (Blue 563Q). Secondly, it proposed amendments to cll 19(d) and 21 to permit Mr Coplin to borrow up to 70% of the sale price on existing or other mortgages over the property during the Call Option Period (Blue 295Q, 296J).
16. On Thursday, 16 October, arrangements were made for the finalisation of the documents and exchange. At 9:43am, HWL Ebsworth sent marked up and final versions of the documents to Ms Tait; advised that they were "arranging for [their] client to execute this morning"; and requested advice as to when Ms Tait was "in a position to exchange".
17. At 11:04am, Ms Tait responded by email (copied to Mr Coplin) requesting a 10 per cent deposit, with five per cent "as the option tranche" payable on exchange of the option agreement and five per cent "at exchange" of the contract for sale. It was explained that the matter had not been raised earlier because Mr Coplin "had not discussed or thought further regarding the deposit to be paid at the time of exchange of contracts". At 3:01pm, Ms Tait confirmed Al Maha's agreement to that request (communicated by HWL Ebsworth) by email to Mr Coplin, and requested that he call to arrange a time for signing the amended documents that "afternoon with a view to [the parties] exchanging this tomorrow". At about 4:30pm, Mr Coplin attended Ms Tait's office and signed the option deed, initialling each page (Black 63T-V).
18. In fact, and apparently without Mr Coplin's knowledge and consent, the option deeds were exchanged and dated later on 16 October 2014: Judgment [150]. On Monday, 20 October, Ms Tait emailed Mr Coplin a letter attaching the put and call option deed and contract for sale. In that letter, when addressing the question of her fee, Ms Tait observed: We as you are aware, undertook further negotiations with respect to the option agreement and ensuring that it was more in your favour than it was as submitted and ensuring that when final exchange takes place, … the purchaser pay the further 5% deposit so that the full 10% has been paid.
19. Seven days later, in the early morning of 23 October, Mr Coplin sent two emails to Ms Tait indicating that he needed to be released from the option agreement. The second of those emails is extracted in part at [5] above (Black 72P). That determination was not informed by any advice from Mr Poole, to whom he later sent the substance of his email to Ms Tait and a copy of the option agreement. According to Mr Coplin's evidence, after emailing Ms Tait, he had a conversation with Mr Poole, who referred to there being "no equal opportunity under this option". He maintained that this conversation "caused [him] to understand the unacceptable financial and legal risks of the Option Agreement", (Black 33M, 66L)which were reflected in the letter that he then sent to HWL Ebsworth (Black 66T), namely his inability to exercise the put option in the 18 months after exchange. Later that day, the neighbouring property for which Al Maha had also made an offer was sold at public auction for $3.343 million. Mr Coplin's evidence, which the primary judge accepted, was that he did not become aware of that price until May 2015 (Black 110L).

Was the option agreement an "unjust" contract (appeal grounds 1-13 and contention ground 1)

Some relevant principles

1. As McHugh JA (Hope JA agreeing) explained in West v AGC (Advances) Ltd (1986) 5 NSWLR 610 at 620, a contract may be unjust when made because its terms, consequences or effects are unjust or because there was unfairness in the way in which it was made. His Honour also said at 621: If a defendant has not been engaged in conduct depriving the claimant of a real or informed choice to enter into a contract and the terms of the contract are reasonable as between the parties, I do not see how that contract can be considered unjust simply because it was not in the interest of the claimant to make the contract or because she had no independent advice.
2. The standard for review of a finding of injustice is that in Warren v Coombes (1979) 142 CLR 531: Perpetual Trustee Company Limited v Albert and Rose Khoshaba [2006] NSWCA 41 at [100] (Handley JA), [107] (Basten JA); Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 309 at [125] (Gleeson JA, Barrett and Emmett JJA agreeing).

The reasoning of the primary judge

1. His Honour identified the following principal circumstances as justifying the conclusion that the contract was "unjust": 1. That Al Maha (via Mr Fox and its solicitors) exerted "commercial pressure" on Mr Coplin, particularly on 15 and 16 October 2014, to exchange contracts without delay: Judgment [228], [229], [236]; 2. That, "as a result of that pressure", Mr Coplin lost an opportunity to obtain legal advice from Mr Poole, his solicitor: Judgment [230], [231]; 3. That Mr Coplin did not obtain legal or other advice upon the terms of the option agreement or as to whether in his financial circumstances it was imprudent to bind himself to a sale the completion of which might be deferred for up to 19.5 months: Judgment [232], [233], [246]; 4. That Mr Coplin did not understand that the put option (by which he could require Al Maha to purchase the property) could not be exercised until the end of the 18-month period for the exercise by Al Maha of the call option: Judgment [234], [247]; 5. That Mr Fox knew or suspected that Mr Coplin was "an unsophisticated man" whose only (legal) adviser was a conveyancer: Judgment [235], [237]; and 6. That Al Maha and Mr Fox knew that Mr Coplin had "no real idea of the value of his property", and that the price for which he had agreed to sell ($2.2 million) was "not only below market value (or, at most, at the bottom of the range), but also substantially less than Al Maha was willing to pay": Judgment [238], [239].
2. His Honour explained his conclusion that the contract was unjust in those circumstances at Judgment [248]: … The [commercial] pressure applied was deliberate, sustained and designed to limit the plaintiff's opportunities for reflection on where his best interests were located and the true state of the market. What the defendants did was within commercial and professional norms, and not deserving of characterisation as unconscionable. It was, nevertheless, unfair in the circumstances in which, to their knowledge, the plaintiff was placed. He was an unsophisticated man represented by a conveyancer rather than a solicitor, trusting the defendants to treat him with the same fairness with which he offered to deal with them, without a full appreciation that the price for which he had agreed to sell his property was not only below market value (or, at most, at the bottom of the range) but substantially less than the first defendant was willing to pay.
3. His Honour then turned to the following three "aspects of the case" said to be relevant in considering the "public interest" (s 9(1)) as a factor in evaluating the injustice of the option agreement (Judgment [251]-[256]): 1. that the appellant property developer had made an unsolicited approach to the respondent; 2. that Mr Coplin did not read the option agreement before he signed it; and 3. that the consequence of requiring performance of the option agreement would be to require the sale of Mr Coplin's home "at a price substantially below market value".

The grounds of appeal

1. Ground 13 in the amended notice of appeal challenges the primary judge's conclusion that the option agreement was "unjust" in the circumstances. The argument in support of that ground involves challenges to specific aspects of his Honour's reasoning, which are the subject of grounds 1-12. Grounds 1-6 assert error in finding (grounds 1, 3-6) and failing to find (ground 2) various facts as to the circumstances of the parties in making the agreement. Grounds 7-12 assert error in considering (ground 9A, 11) and failing to consider (grounds 10, 12) various circumstances and in making (grounds 7, 9) and failing to make (ground 8, 10) evaluative findings. Ground 1 in Mr Coplin's notice of contention asserts that the primary judge erred in failing to find additional factors supporting the conclusion that the contract was unjust.
2. The issues raised by the appeal may conveniently be addressed by considering in turn whether unfair pressure was exerted on Mr Coplin; whether such pressure resulted in his entry into the option agreement without understanding the matter on which Mr Poole later advised; and whether the public interest or any remaining circumstance supported a finding that the contract was unjust in the circumstances.

The "unfair pressure"

1. The primary judge found that Mr Coplin was "placed under commercial pressure" by Al Maha (largely through Mr Fox) first on 15 October and then on 16 October. Of course, the nature and extent of any such pressure must be assessed in light of the parties' earlier interactions.
2. When those interactions commenced on 1 October, Mr Fox informed Mr Coplin that Al Maha wished to exchange "expeditiously", and Mr Coplin responded with agreement provided its solicitors prepared the contract. On 7 October, in the course of negotiating commercial terms, Mr Fox indicated that the deal was to be implemented by way of put and call options. His expressed intention, and Mr Coplin's expressed understanding, was that this structure would be used to produce the same outcome as was already agreed, namely a contract for sale with an 18-month settlement period.
3. Mr Coplin's email of 14 October (extracted at [16] above) communicated his awareness of specific information relevant to the value of his property. It referred to the sale for $2.7 million of a property in Holdsworth Avenue which Mr Coplin knew to be smaller. That price, which was equivalent to $4,889 per square metre of land area (Blue 1116F), suggested a possible value of Mr Coplin's property of up to $3.2 million in circumstances where the residential property was being acquired for redevelopment. After referring to that sale, Mr Coplin expressed his expectation that "developers in the next few months [would pay] in excess of $2.5m for big blocks" like his, it being "first in, best dressed for them". From the developer's perspective, that expectation could reasonably be understood as informed by Mr Coplin's professed contact with two local real estate agents. Equally, the readily apparent "volatility" in the market for properties such as Mr Coplin's, as found the primary judge at Judgment [258], could only have encouraged Al Maha's haste (acting in its interest) to conclude an agreement with Mr Coplin at the price which he was then prepared to accept.
4. In his email of 14 October, Mr Coplin had relied on the information available to him as justifying an increase in the purchase price by $200,000. Mr Fox's response at 11:11am on 15 October sought to bring the negotiations to a conclusion, by proposing a meeting between the parties with a view to "finalising a deal" that day. Mr Coplin responded within 25 minutes in a way only calculated to produce the same outcome. He forbade Ms Tait from communicating with any party unless the agreed price was $2.2 million, which Al Maha then accepted "on the basis we exchange today". That was not a surprising position to take, the other party having previously indicated that a price of $2 million was "OK", then asked for an additional $200,000. (Blue 529, 530, 531)
5. HWL Ebsworth's email enclosing the amended documents enquired, without making any demand, whether Mr Coplin was agreeable to settling on 15 October. Ms Tait's response suggested "tomorrow morning" as a realistic time for the parties to meet, after allowing time for her to look at the documents and take instructions. As matters transpired, she completed that review and forwarded her proposed amendments at 5:34pm. At that time, she suggested that the documents could be finalised by the end of 16 October and that exchange could occur the following day. That response suggests that Ms Tait did not interpret HWL Ebsworth's earlier email as suggesting the "deal" would be off unless concluded on 15 October.
6. Against that background, the communications of 15 and 16 October cannot be characterised as calculated, or objectively likely, to deprive a person in Mr Coplin's position of the opportunity to make an informed choice about the option agreement by influencing, persuading or pressing him to proceed to exchange, rather than to take advice. It remains necessary to consider whether some attribute or circumstance specific to Mr Coplin nevertheless made the conduct summarised above unfair. As Allsop P observed in Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36 at [7]: The broad evaluation of unjustness under the Contracts Review Act 1980 (NSW) ss 4, 7 and 9 involves the normative evaluation of the totality of relevant circumstances. … Central to the normative evaluation is the recognition that there is a need for the protection of some people in some circumstances, who are not able fully to protect their own interests against factors that may cause injustice.
7. Significantly, the primary judge found that Mr Coplin was not incapable of protecting his own interests by reason of his age or physical or mental capacity; that the parties' bargaining power was not materially unequal; that it was reasonably practicable for Mr Coplin to negotiate for the alteration or rejection of provisions in the option agreement; and that the way in which the appellant proceeded was "within commercial and professional norms", and not unconscionable: Judgment [244], [248].
8. Only the second of these findings is challenged by Mr Coplin's notice of contention, and the issue may be addressed shortly. In economic contexts, bargaining power describes the relative ability of one negotiating party to exert influence over others, typically by threatening not to contract. Generally speaking, weakness in bargaining power is a form of vulnerability arising from having fewer or worse alternatives in the event of a contract not being made with a particular counterparty. See Friedrich Kessler, "Contracts of Adhesion - Some Thoughts About Freedom of Contract" (1943) 43 Colum L Rev 629, 632; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301; [2002] FCAFC 4 at [64] (Gray, French and Stone JJ). In the context of s 9(2), there may be difficult questions as to whether, in assessing bargaining power, account is to be taken of a party's awareness or ignorance of the alternatives truly available to it and to others. Those questions do not need to be resolved in this case. Mr Coplin (independently and through his conveyancer) was able to demand a material increase in price, amendments to his borrowing ability in the call option period and a ten per cent deposit on exchange of sale contracts. His ability to do so, at least on the face of things, is inconsistent with there being a material inequality in bargaining power.
9. At Judgment [248], the primary judge states his reasons for concluding that the pressure applied to Mr Coplin was "unfair" in the circumstances. Each concerns an attribute or circumstance of Mr Coplin which his Honour found was known to Mr Fox or Al Maha.
10. The first was Mr Coplin's character as "an unsophisticated man". That description appears to refer to his Honour's findings that Mr Coplin "evidently lived a sheltered life"; that his "judgment was, in the current controversy, demonstrably poor"; and that, "beneath the veneer of competency, [he] required time to process problems and solutions": Judgment [49], [235]. Mr Coplin's lack of sophistication did not, however, include an inability to manage his own affairs, read, work with numbers, express himself and make judgments as to his own best interests: Judgment [48]-[49]. Furthermore, from the perspective of Mr Fox and HWL Ebsworth, he was being represented by an apparently competent conveyancer and communicating with local real estate agents as to recent sales and their significance for the value of his property.
11. The second matter was Mr Coplin's representation by a "conveyancer rather than a solicitor". As is already apparent, the evidence does not identify any respect in which advice able to be given by Mr Poole could not equally have been given by Ms Tait. More significantly, the evidence shows that Ms Tait could have given advice as to the specific matter which ultimately caused Mr Coplin to seek to be released from the option agreement. That matter did not include the valuation of his property or the financial sense of the transaction, which in any event would not ordinarily be within Mr Poole's responsibility as a solicitor, absent express provision in his retainer: see Provident Capital v Papa at [75] (Macfarlan JA). Furthermore, Mr Coplin's letter to Mr Poole did not suggest that he sought such advice, and Mr Coplin's evidence was that, had he wanted advice of that kind, he would have sought it from a real estate agent (Black 97I-L).
12. The third matter was Mr Coplin's trust in Al Maha and PropertyFox "to treat him with the same fairness with which he offered to deal with them". At Judgment [236], the primary judge found that Mr Fox "conditioned [Mr Coplin] to believe that he was being dealt with fairly" by Al Maha and its agent, who took advantage of that trust by "insisting" that an exchange of contracts occur without any delay beyond 16 October. Their objective in doing so is described at Judgment [240] as being "the fear that given time, the plaintiff might discover that he was overly conservative in his estimate of the market value of the property".
13. That characterisation of what occurred is not supported by the primary facts found by his Honour. The finding that Mr Coplin was conditioned to believe "that he was being dealt with fairly" is contradicted by the terms of his email of 14 October 2014, in which he identified the "fair" price for his house as $2.2 million, rather than the amount earlier suggested by Al Maha. That statement manifests an independent evaluation of the fairness of Al Maha's proposal, apparently by reference to recent sales, the proposed rezoning and Mr Coplin's preparedness, unlike his neighbour, to agree to a deferred sale after 18 months. The further negotiations as to price on 14 and 15 October continued to be at arm's length, with both sides seeking to advance or protect their own (and often conflicting) interests. At no time did Al Maha or Mr Fox undertake to forego their interests or to secure for Mr Coplin a price which was "fair" according to some (unstated) measure. As to the relative fairness displayed by Mr Coplin, the uncontested facts show that he was not straightforward in his dealings with Mr Fox, particularly by inducing a belief that he had or was receiving advice, both legal and from real estate agents when that was in fact not the position.
14. Likewise, the primary facts do not support the finding at Judgment [236] that Al Maha "insisted" on settlement taking place by 16 October and not "beyond". At no time before or on 16 October did Mr Fox or HWL Ebsworth "insist" that exchange occur by 16 October. On the contrary, as the narrative at [24]-[25] above shows, Ms Tait was invited to nominate the time for exchange and proposed "tomorrow, if all is agreed".
15. The final matter to which the primary judge refers was Mr Coplin's lack of "full appreciation" that the sale price to which he had agreed was below or at the bottom of the market and substantially less than what Al Maha was willing to pay. The primary judge's findings are not entirely consistent with that summary of the position or even there being a substantial discrepancy in the parties' beliefs as to the value of the property, in a market found by his Honour to be "volatile": Judgment [258]. At Judgment [17], his Honour held that, "as between themselves, Messrs Fox and Bechara [the principal of Al Maha] can reasonably be inferred to have held the belief that the market value of the plaintiff's property was substantially in excess of $2.2 million, possibly as high as $2.8 million". By comparison, at Judgment [23], his Honour adverted to Mr Coplin perhaps suspecting that his property was worth "more than $2.2m, perhaps as much as $2.7m". His Honour's observation at Judgment [258] that Mr Coplin appreciated that the price of $2.2 million may possibly have been "less than market value" accords with this earlier finding.
16. Insofar as there was a substantial disparity between the contract price and market value, as the primary judge noted at Judgment [21], that fact alone was not a ground on which the contract could be set aside as unfair. Furthermore, in circumstances where Mr Coplin acknowledged that he was not deprived of any opportunity to take professional advice as to the value of his property, the fact that his assessment of the upper range of its value was lower than that of the developer was not the product of any "unfair conduct" by the developer or its agents. With respect to the value of his property, at no time was Mr Coplin unable to perceive or act in his own interest or deprived of the opportunity to do so: cf West v AGC (Advances) at 621; Provident Capital v Papa at [7]. Indeed, he had information (as to the September 2014 sale of the Holdsworth Avenue property) which might suggest a value of his property in excess of the $2.8 million found by the primary judge. Any want of a full appreciation on his part as to a disparity between the contract price and market value was not the product of any unfair conduct or otherwise unjust.

The resulting injustice

1. Throughout the period before exchange late on 16 October, Mr Coplin had the opportunity to obtain legal or other advice and represented to Mr Fox on occasions that he had done so. Ultimately, he retained Ms Tait, whose amendments to the option agreement demonstrate an appreciation that the periods in which the call and put options could be exercised were sequential, and that it was necessary to secure Mr Coplin's ability to borrow funds against the property in the earlier period of the call option to meet existing or unexpected obligations. Ms Tait was obviously capable of advising Mr Coplin as to the matter on which he later obtained Mr Poole's confirmatory view (see [23] and [27] above). Or he could have discovered it for himself by reading the option agreement before signing it.
2. It follows that Mr Coplin did not, by reason of any conduct of Al Maha or its agents, lose the opportunity to obtain legal advice about any matter found to be material to his entry into the agreement. Mr Coplin could have sought that advice at any time after 15 October, when Ms Tait received the draft documents, including on the afternoon of 15 or 16 October, when he visited her office. Furthermore, Mr Coplin's inability to obtain Mr Poole's advice before exchange was not due to any conduct of the developer. Al Maha was not responsible for exchange occurring without Mr Coplin's knowledge late on 16 October and, before that time, Mr Coplin had not advised Ms Tait that he had sought advice from Mr Poole and did not want exchange to occur until he had received it.
3. In this context, Mr Coplin's opportunity to obtain advice about the value of his property is not relevant. The only respect in which he claimed not to be fully informed at the time of exchange was as to the lack of reciprocity in the time periods for the exercise of the options, which was said to give rise to "unacceptable legal and financial risks". And Mr Coplin maintained before the primary judge that he "would not have entered into the option agreement" if he had been aware of that lack of reciprocity and its attendant risks (see [27] above) (Blue 10C-F). Although no express finding to that effect was made, the conclusion at Judgment [260] that Mr Coplin was "required" to sell his property on "unfavourable terms" to which he did not "give his fully informed consent" accepts his case on this matter.

The public interest

1. The primary judge considered three matters of public interest to be relevant in assessing whether the contract was unjust in the circumstances (see [32] above).
2. The first was explained as follows at Judgment [252], following an observation that the developer parties initiated the negotiations with Mr Coplin by an unsolicited approach: … in the present case, it seems to me, the public interest requires that the defendants bear the risk of the transaction proposed by them going off in the event (which occurred) that the plaintiff, as the target of their endeavours, did not, in fact, obtain such independent advice as was necessary to ensure that he gave his fully informed consent to the transaction.
3. Whether there is such a broadly stated public interest "requiring" that a property developer bear the risk of a transaction proposed by it in the circumstances described does not need to be decided. As formulated, those circumstances could not describe Mr Coplin's position because it was not necessary for him to obtain legal advice in order to "ensure that he gave his fully informed consent". All he had to do was read the option agreement or ask Ms Tait to explain its operation to him.
4. The second matter was the public interest in requiring parties to read and understand documents before signing them and to adhere to their contracts: Judgment [254]. The upholding of the appellant's challenges to his Honour's conclusions means that this interest prevails.
5. The third matter was that requiring performance of the option agreement would result in the sale of Mr Coplin's property at a price substantially below market value. As his Honour acknowledged, without more such a consequence would not justify a finding that the contract was unjust: Judgment [256]. In the absence of any surviving finding which establishes procedural or substantive injustice in relation to that contract, this consideration is of no effect.

The other factors

1. Mr Coplin contends that the primary judge should have found additional factors supporting the conclusion that the contract was unjust in the circumstances: cf Judgment [244]. Those factors are material inequality in bargaining power (s 9(2)(a)), which has been dealt with above; that the put and call options were not necessary for the protection of the legitimate interests of the developer (s 9(2)(d)); and that there had been relevant conduct by Mr Fox in relation to other similar contracts or courses of dealing (s 9(2)(k)).
2. As to the second factor, the legitimate interests which Al Maha identified for proceeding by way of put and call option were having a right, but not an obligation, to purchase the property for 18 months and, as Mr Fox told Mr Coplin, the deferral of any obligation to pay stamp duty. Each of these interests provides a plausible reason for the developer seeking to proceed as it did.
3. In relation to the third factor, Mr Coplin refers to the four illustrations of Mr Fox's conduct described by the primary judge at Judgment [80]-[95]. Those were instances given in the context of his Honour's observations on Mr Fox's reliability as a witness, particularly when seeking to reconstruct events. They were not of conduct said to be part of a relevant course of dealing or in circumstances similar to those involving Mr Coplin.
4. For these reasons, ground 1 of the notice of contention is rejected.

Conclusion

1. As is apparent, I respectfully disagree with the primary judge's conclusion that the option agreement was an unjust contract in the circumstances in which it was made. At no stage on or before 15 October did Al Maha or its agent "insist" that settlement take place by that date or otherwise engage in conduct which had the effect of depriving Mr Coplin of any opportunity to take legal advice before that agreement was fully agreed and exchanged. The matter which Mr Coplin subsequently "discovered" and maintained caused the option agreement to be "unfair and onerous" was apparent on a reading of the draft agreement and could have been the subject of advice from Ms Tait, who plainly appreciated its significance. That it was not the subject of advice from Mr Poole was not due to any "pressure" of Al Maha. Why the agreement was exchanged on the evening of 16 October is not explained.
2. Grounds 7, 8 and 13 are made out and the appeal should be allowed. Considered in the light of the uncontested primary facts, the matters referred to at Judgment [248] and the findings at Judgment [229]-[240] do not justify the conclusion at Judgment [257] that the contract was unjust.

Should the agreement have been declared void ab initio (appeal grounds 14 and 15)

1. These grounds do not arise, and may be dealt with briefly. The "legal and financial risks" which were "unacceptable" to Mr Coplin arose from his not having an entitlement to require sale in the 18-month period for exercise of the call option. A grant of relief directed to "the purpose of avoiding, as far as practicable, an unjust consequence or result" (s 7(1)) would at most have resulted in his having that entitlement or its substantial equivalent in money or other terms. Had I upheld his Honour's conclusion as to the option deed being "unjust" on that basis, I would have allowed the appeal against the order declaring it void ab initio. It is not necessary to consider what other relief, if any, might have been granted in the circumstances as they existed at the time of the hearing, which was after the 18-month period had elapsed.

Orders

1. The orders I propose are: 1. Allow the appeal. 2. Set aside the declarations and orders numbered 1 to 7 made on 16 December 2016 and in lieu thereof order that the Statement of Claim be dismissed with costs. 3. First respondent pay the costs of the appellant and second respondent of the appeal.
2. GLEESON JA: I agree with Meagher JA.

Amendments 12 December 2017 - Covershee: appearances amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2017