3 Item 1 in that calculation, which results in a figure of $56,121, is a summation, agreed between the parties, of the results of the judgment that I delivered yesterday, finalising all disputes concerning what moneys were and were not paid to the plaintiffs, and the commissions and incentives to which the plaintiffs were properly entitled out of those moneys. Item 2 is an account in which the $225,000 that the plaintiffs were owed as the balance purchase price of the land is shown as a credit, and then various items are shown as debits against it. In the case of Item 2(a), the $56,121 mentioned above, this was the totality of amounts actually paid to the plaintiffs. In the case of Items 2(b) to 2(e), they represent further debits which the plaintiffs incurred vis a vis the defendants, and which in the accounting go against the plaintiffs' credit for $225,000. The figure of $56,121, as I have said, is the result of determinations by me yesterday. As is shown in the plaintiffs' written submissions, they concur that the sums set out in items 2(b) to 2(e) are the appropriate sums in respect of those items.
4 That, as I have said, results in a balance due to the defendants of $3,887 in respect of all the monetary items in play between the plaintiffs and the defendants, with two exceptions. The first is an additional item that the plaintiffs say should go into the account. The second is the matter of moneys payable to the plaintiffs arising out of the plaintiffs' entitlement to Lots 11 and 12, which I have found to exist.
5 The submission put by Mr Fairbairn, of counsel for the plaintiffs, in relation to the first item, which they say should be brought into account in Item 2 in the calculation, is set out on the first page of the plaintiffs' written submissions brought in today. It is suggested the account between the parties at one stage (and this without regard to the entitlement to Lots 11 and 12) went into credit in the plaintiffs' favour by $78,048, as a result of three items set out in the submissions. It is said that what should be brought into account in Item 2 is interest for an appropriate period on that sum of $78,048, or its components, calculated in accordance with the rates prescribed in the Supreme Court Rules 1970.
6 I do not accede to this submission on the plaintiffs' behalf. I do not accept that the accounting between the parties should have been regarded as in credit in the plaintiffs' favour by reason of the items amounting to $78,048 or any of them. The calculation set out in Item 2 shows that the account between the parties (leaving aside the question of Lots 11 and 12) certainly did not wind up in credit in the plaintiffs' favour. The calculations have not been laid before me on a daily or monthly basis. As I have said, the question of Lots 11 and 12, I shall deal with separately. In my view substantial justice is done between the parties on the question of interest, by allowing the amounts of interest calculated under the deed of August 1995 in respect of the $225,000 and the further personal loan of $28,000, and allowing simple interest on the construction debt, as is done in Item 2. There did not result a balance of any reality on which interest should be calculated in the plaintiffs' favour, and I do not believe that the justice of the case requires such a calculation. The state of accounts between the parties should therefore be taken to be $3,887 in the defendants' favour, being the figure reached in Mr Lawrence's calculation set out above.
7 I turn to the question of Lots 11 and 12. The case always proceeded on the basis that the plaintiffs were entitled to have a transfer of Lots 11 and 12: see my first judgment [23.4]. Those lots were sold during the course of the proceedings by the mortgagee. The proceeds of sale were received by the mortgagee some time ago, being not earlier than 1998, and credited by the mortgagee to debts to the mortgagee of the defendants. The defendants have had since that date, in a very real way, the benefit of moneys which were in reality the plaintiffs'. Their liability to the mortgagee was reduced by the amount of $232,000 and they ceased to incur interest on that amount. Whilst in my first judgment I left open the possibility that it might be argued that the value of the properties, as at the date of sale, was other than the $232,000 for which they were sold by the mortgagee, in the event no argument to that effect has been put to me, and the parties have agreed that that figure represented the value of those properties as at that date.
8 An argument has been put to me late in the day by Mr Lawrence (so far as I can understand it) that there should be some other result than the payment of the $232,000 by the defendants to the plaintiffs. That argument was originally set out in written submissions received on 9 August 2001, and has again been put to me today orally and recorded. It depends upon an allegation that it was obstruction, or conduct by the plaintiffs, which led to the lots being sold by the mortgagee, rather than dealt with in some other way, including by transfer to the plaintiffs. The argument that Mr Lawrence has sought to put in this regard I have found difficult to understand. This, I should say at once, is not typical of submissions that Mr Lawrence has put. The submissions that he has put, and his conduct of this case during its latter part as, in effect, a litigant in person, have in general terms been comprehensible, and the manner of his submissions and his command of the facts of this complex litigation, have been helpful to the Court. Unfortunately I have not been able to discern, in the submissions he has put in this regard, an argument or case which avails the defendants. It seems to me that, whyever the lots were sold by the mortgagee, the simple fact is that, up to the date of their sale, they were lots which were contractually bound to be transferred to the plaintiffs. That being so (and it was not at any stage seriously argued to the contrary), prima facie upon their being sold, in whatever manner, the proceeds received from their sale should be paid to the plaintiffs, which had previously been entitled to receive a transfer of the lots.
9 This seems to me to conclude the matter. The plaintiffs seem to me to be entitled to receive $232,000. Equally it seems to me that the balance in favour of the defendants of $3,887 shown in Item 2, had, in effect, already been struck (except perhaps for some small element of interest on the work done) by the time the $232,000 was received. It seems to me that substantial justice will be achieved, if interest is calculated from the date of receipt of the $232,000 on that sum less the $3,887, which is the final balance owing by the plaintiffs to the defendants on the other items. The result will be that judgment should be entered in favour of the plaintiffs for $232,000, less $3,887, plus s 94 interest calculated on the difference from the time of receipt of the $232,000 to date.
10 Mr Lawrence has sought to have me defer making any order for payment of the $232,000 in the plaintiffs' favour, unless stamp duty is paid upon two contracts for the sale of land, one by Davhand Pty Limited to Bernoth Realty Pty Limited in respect of lot 11 and the other by Bulevi Pty Limited to Bernoth Realty Pty Limited in respect of what subsequently became lot 12. These contracts were prepared apparently in connection with the obligation to transfer these lots. They were first raised in Court in the "accounting" phase of the proceedings, after the delivery of my first, second and third judgments, and were not actually sought to be tendered until today, when Mr Lawrence sought to tender them in support of the argument which I have just outlined. They were objected to by Mr Fairbairn as irrelevant to any of the matters before me. I upheld this objection and rejected their tender. As I have already said in [7], there was no real argument about the entitlement, under the contractual arrangements between the plaintiffs and the defendants, of the plaintiffs to have a transfer of these lots, and they having been sold by the mortgagee, to receive from the defendants the value of the lots at the time of sale. The obligation to transfer the lots arose from the 1994 contract Special Condition E(c). That contract was duly stamped and is in evidence. Whatever steps were being taken prior to the sales effected by the mortgagee to implement the obligations between the parties, were swept away by those events. There was nothing in the pleadings, or in the way the matter was conducted at the earlier trial before me, that gave any relevance to these contracts. The contracts, which I have rejected, have been respectively marked MFI9 (lot 11) and MFI10 (lot 12). As they have been rejected on the ground of relevance, the Court does not need in any way to deal with any questions arising from the fact that stamp duty does not appear to have been paid on them, and what difference, if any, is made to the liability for stamp duty by the fact that those contracts were never carried, and cannot now be carried, into effect.
11 Mr Fairbairn has asked me to make a declaration as to an amount which the plaintiffs are entitled to have secured in their favour by mortgage over lot 13, being the remaining parcel of land. I have held in my second judgment that the obligation to give a mortgage remained in force, at least so long as any sum remained to be secured by it. The possibility that that entitlement to a mortgage might remain alive could not be determined or excluded until the final accounting between the parties: see my second judgment [12]. But I also held that the plaintiffs were not entitled to have secured under that mortgage any amount which they were entitled to be paid as a result of their entitlement in respect of Lots 11 and 12: see my second judgment [5].
12 Mr Fairbairn now submits that the plaintiffs should be declared entitled to have secured in their favour under the mortgage either the sum of $225,000, being the amount owed by the defendants to the plaintiffs in respect of the balance of purchase price, on the basis that the payments which have in fact been made, or credited to the plaintiffs, should have been regarded as appropriated to the value of Lots 11 and 12, rather than to the $225,000 debt. By reason of the various findings I have already made, it is, in my view, quite impossible that the accounting should be done in a way which would leave that $225,000 now owing. The rights in respect of Lots 11 and 12 were rights to a transfer in specie of the land up to the time of the mortgagee's sale of the lots in 1998 or later. The items in the accounting put forward by Mr Lawrence, and which I have adopted as correct, were in vast bulk incurred before a monetary obligation in respect of Lots 11 and 12 arose. The balance of the accounting as between the parties remained, by a small amount, in the defendants' favour. I should say that no submissions of law or fact were put to me concerning the appropriation at the time of payment of any payments actual or notional. It is quite unrealistic to suggest that all the credits to the plaintiffs, up to the sale of Lots 11 and 12, should be regarded as being credits against a monetary obligation not then incurred, rather than against the various obligations which undoubtedly did exist. Alternatively, Mr Fairbairn submitted that the amount secured should be the $78,048, mentioned in [5] and [6] above. However, as I have already found in relation to the submissions on that matter, no credit in that amount has ever in any realistic way been established to exist as a credit in the plaintiffs' favour, and it cannot now be plucked out of the ether as a sum which ought be secured under the mortgage.
13 In those circumstances, it seems to me that the appropriate declaration that ought be made to clarify the situation between the parties, is a declaration that there are no moneys which the plaintiffs are entitled to have secured under the mortgage. Any debate as to the propriety, or form of such a declaration may be had at 9.30 tomorrow morning when the figures for the monetary judgment are brought in. Directions can then also be given as to the determination of all questions of costs in the proceedings.