(f) Her Honour committed the same error as the learned Magistrate in that she decided the matter upon the basis of the existence of a condition precedent (or condition subsequent) in circumstances where this was neither pleaded nor argued before the learned Magistrate or her Honour.
20 In my opinion, these submissions proceed upon too narrow a basis, emphasising as they do the literal terms of the pleadings, without any, or at least any proper, regard to the surrounding commercial context out of which the dispute arose. In this regard, I consider that the letter dated 4 May 2004 is critical. It supports, and explains, the way in which the learned Magistrate attempted to make sense of the parties' handwritten agreement. In this respect Mr Sirtes' contention is that the learned Magistrate dealt with the allegation contained in paragraph 12 of the Ordinary Statement of Claim by converting the allegation that the deposit would be refunded in the event of any improvements to the property not being approved by the local council into an allegation that the plaintiff was required to provide a building certificate to establish this.
21 The matter referred to in the letter dated 4 May 2004 from the defendant's solicitor drew a twofold response. Bearing in mind that the exchange of correspondence on this point was dealing with what should be included in the formal contract for the sale of land in contemplation of its exchange, the solicitor for the plaintiff did not agree that the proposed clause 47 should be added. However, in my view significantly, the plaintiff's solicitor's response the following day also noted that the plaintiff was "applying for building certificate". In those circumstances, it is a little difficult to understand why the plaintiff would have been proposing to apply for such a certificate if not for the purpose of establishing whether any improvements to the property had not been approved by the local council. In my opinion, the words "[I]f the vendor is unable to obtain such a certificate, the vendor is willing to demolish the awning" and so on, demonstrate that the plaintiff must at least have understood that the concept underpinning the pleading in paragraph 12 of the Ordinary Statement of Claim incorporated as well an obligation upon the plaintiff to obtain a building certificate or to be obliged to refund the deposit if he could not do so. In my opinion, the case was conducted before the learned Magistrate upon the basis that paragraph 12 had this meaning. I did not understand it to be any part of Mr Sirtes' submissions before me that the absence of a pleading alleging a breach of the term asserted in paragraph 12 was significant.