ARDIZZONE -v- VALENTINO NOMINEES PTY LTD [2019] WASC 55 (27 February 2019)

(3) Valentino should inform any purchaser of the Property of the existence of the TEC.

1. Mr Colby said that, when he read the Letter, he thought it was his 'ethical responsibility' to let Mr Ardizzone know that 'there could be a problem'. He believed the Letter needed to be disclosed to Mr Ardizzone. However, he did not want to disclose the Letter to Mr Ardizzone before he had spoken to Mr La Rocca and ascertained what its impact might be. Mr Colby telephoned Mr La Rocca and told him about the Letter. After Mr La Rocca told Mr Colby that the Letter was, in effect, 'nothing to worry about', Mr Colby told Mr La Rocca to give a copy of the Letter to Mr Ardizzone.
2. Shortly after speaking to Mr La Rocca, Mr Colby emailed a copy of the Letter to Mr La Rocca's email address at CRI. Mr La Rocca said he did not receive this email.
3. Mr Ardizzone was not given the Letter or told about it by any of the defendants.
4. Settlement occurred on 22 March 2013.
5. Mr Ardizzone became aware of the existence of the Letter about a year after the settlement date. After taking possession of the Property, Mr Ardizzone cleared some of the vegetation on it. In early February 2014, an officer from the City of Gosnells (City) advised him there was a TEC on the Property. On 18 February 2014, the City sent him a letter advising him, among other things, that some of the vegetation he had cleared had been within the area said to contain a TEC on the Property (TEC area). The City's letter attached a directions notice requiring him to restore the TEC area. On making further enquires, Mr Ardizzone was provided with a copy of the Letter.
6. Mr Ardizzone submitted that the defendants should have told him about the Letter before settlement. He said that the presence of the TEC means he is effectively denied the use of a large proportion of the Property.
7. Under the relevant legislation, there are significant restrictions on the ability to use TEC areas. TEC areas may also be declared to be 'environmentally sensitive areas' (ESAs). If a TEC area is declared to be an ESA, there are increased restrictions on the ability to use the land.
8. Mr Ardizzone alleges a breach of the contract and misleading or deceptive conduct.

1. The breach of contract is alleged only against Valentino. Mr Ardizzone submitted that Valentino breached cl 9.1(a)(1) of the 2011 Joint Form of General Conditions for the Sale of Land (General Conditions). Condition 3 to the contract of sale (Contract) incorporated the General Conditions.
2. Clause cl 9.1(a)(1) of the General Conditions relevantly provides that the seller represents and warrants to the buyer that, as at the contract date and as at the settlement date, the seller does not know of any demand, requisition, order or requirement relating to the Property which had been made by any governmental, statutory body or other public body or authority and which remained current as at the date of settlement. In these reasons, I will refer to such a demand, requisition, order or requirement as a 'Government Requirement'.
3. The Valentino parties agree that, if Valentino knew of such a Government Requirement at the date of settlement, Valentino would have breached cl 9.1(a)(1).[1]
4. The parties disagree as to whether the Letter informed Valentino of a Government Requirement.
5. The parties also disagree as to the proper construction of cl 9.1(a)(1) and the remedies available to Mr Ardizzone if it was breached.

1. Mr Ardizzone alleges that each of the defendants engaged in misleading or deceptive conduct, or conduct likely to mislead or deceive, contrary to s 18 of the Australian Consumer Law[2] (ACL). Further, and in the alternative, Mr Ardizzone alleges that each of the defendants made false or misleading statements concerning the characteristics of the land, or the use to which the land is capable of being put or may lawfully be put, contrary to s 30(1)(e) or (f) of the ACL.
2. Mr Ardizzone alleges[3] that the conduct that breached the ACL was the defendants' failure to disclose the Letter in the context of cl 9.1(a)(1) of the General Conditions, the marketing documents provided to him and implicit representations alleged to have been made in those documents. The alleged implicit representations are:

(1) that there was no restriction on the use of the whole or substantially the whole of the area of the Property; and/or

(2) that steps were being taken that would likely result in the whole or substantially the whole of the area of the Property being zoned for industrial use.

1. The TEC area on the Property originally comprised approximately 7,000 sqm. The TEC area was subsequently reduced (in part because of the clearing by Mr Ardizzone referred to above). However, due to the presence of the TEC, the City imposed restrictions on the use of some land outside the TEC area.
2. Mr Ardizzone claims that the practical effect of the TEC is that he is unable to use approximately 6,155 sqm (approximately 30% of the area of the Property), he is limited in his use of a further 2,557 sqm (approximately 13%), and he also incurs costs to maintain the TEC.
3. Mr Ardizzone seeks:

(1) damages for breach of contract as against Valentino;

(2) damages pursuant to s 236 of the ACL against all four defendants; and

1. The parties provided an agreed list of 43 issues in the original action (first list of issues). During the hearing, it became apparent that many of the issues were no longer pressed. During closing submissions, the parties confirmed that 14 issues had fallen away. Following the trial, the parties provided, with leave, an updated list of agreed issues (final list of issues) which struck out 15 of the issues from the first list.
2. Of the remaining 28 issues, a number overlapped or duplicated a point, and some were simply ultimate issues as to conclusions that would flow from the determination of other issues. Accordingly, in these reasons, I will not deal with the issues in numerical order. I will deal with some issues in the course of discussing the history of the matter, my factual findings and my assessment of the witnesses. The remaining issues will be dealt with in the analysis of the two distinct causes of action.
3. Broadly speaking, the issues are as follows.

(a) Did the Letter communicate a Government Requirement?

(b) What is the proper construction of cl 9.1(a)(1) of the General Conditions?

(c) Does cl 9.1(a)(1) only apply to a valid Government Requirement?

(2) The issues that arise in the misleading conduct claim are:

(d) Was the conduct misleading or likely to mislead?

(e) Did the conduct cause Mr Ardizzone to suffer loss or damage?

(f) Did Mr Ardizzone cause or contribute to any loss?

(g) If the answers to questions (c) (e) are yes, how should the loss be apportioned between the defendants?

(3) In relation to both claims, what is the proper assessment of any loss?

1. The Valentino parties brought a counterclaim against Mr Ardizzone, the Chief Executive Officer (CEO) of the Department of Parks and Wildlife and the Minister for the Environment (Minister). I will refer to the CEO and the Minister collectively as 'the Government parties'.
2. It would be unhelpful to fully explain the issues that arise in the counterclaim at this point. For the moment, it is sufficient to note the following.
3. The Valentino parties submitted that there was, in fact, no TEC on the Property. They submitted that the 2010 expert report which said otherwise was flawed.
4. In addition, the Valentino parties disputed that the TEC area said to be on the Property was also an 'environmentally sensitive area' (ESA). Relevantly, for an area to be an ESA, the vegetation must have been determined by the Minister to be a TEC and the owner of the property must have been notified of the area on the Property covered by the TEC.
5. The Valentino parties submitted, in essence, that the Minister merely approved an informal arrangement and did not make a 'determination'.
6. The Valentino parties further submitted that the Letter did not notify Valentino of 'the area on the Property covered by the TEC', because it only advised of the approximate area.

1. Before turning to the issues, I will set out the relevant legislative and regulatory framework and the factual history that led to the sending of the Letter.
2. In their written submissions, the Government parties helpfully summarised these matters. Subject to the specific issues dealt with later in these reasons, the summary was not disputed. I gratefully acknowledge that almost all of what follows in the next two sections is drawn from the submissions of the Government parties.

Legislative and regulatory framework Conservation and Land Management Act 1984

1. Upon the commencement of the Conservation and Land Management Act 1984 (WA) (CALM Act), the Department of Conservation and Land Management was established as the department that would principally assist in the administration of the CALM Act.
2. This department has undergone a number of name changes over time including the Department of Parks and Wildlife, the Department of Environment and Conservation and its current name, the Department of Biodiversity, Conservation and Attractions. In these reasons, the term 'Department' is used to refer to the department by the name it was known by at the relevant time.
3. At the relevant time, the functions of the Department and its CEO included:[4]

(1) to be responsible for the conservation and protection of flora and fauna throughout the State;

(2) to carry out, or cause to be carried out, such study or research of, or into, the conservation and protection of flora and fauna as the Minister may approve; and

(3) to provide advice to other departments and public bodies as well as private individuals and bodies in connection with its functions.

1. These functions were subject to the direction and control of the Minister.

Environmental Protection Act 1986

1. In 2003, the Environmental Protection Act 1986 (WA) (EP Act) was amended to introduce new statutory provisions regulating the clearing of native vegetation in Western Australia (Clearing Provisions).[5]
2. The term 'native vegetation' is defined in s 3(1) and s 51A of the EP Act. Subject to qualifications not relevant here, it is defined to mean indigenous aquatic or terrestrial vegetation, including dead vegetation but excluding vegetation that was intentionally sown, planted or propagated.
3. Under s 51C of the EP Act, it is an offence for a person to cause or allow 'clearing'[6] of native vegetation without a clearing permit unless an exemption applies. There are two types of exemption.
4. The first type of exemption, provided by s 51C(b), applies where the clearing is of a kind set out in sch 6 of the EP Act. This type of exemption is of limited application and is not relevant to these proceedings.[7]
5. The second type of exemption, provided by s 51C(c), applies where the clearing is of a kind prescribed in the regulations and is done outside of an ESA. I will refer to exemptions of this type as 'NonESA exemptions'. The NonESA exemptions are set out in the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (Clearing Regulations).
6. Various sections of the EP Act deal with applications for, and the grant or refusal of, clearing permits.
7. The power to grant or refuse a clearing permit has been vested in various departments over time. It is currently conferred on the CEO of the Department of Water and Environmental Regulation (DWER). DWER is the department that principally assists in the administration of the EP Act. In these reasons, I will use 'DWER' to mean the name of the department which had, or whose CEO had, the power to grant or refuse a clearing permit at the relevant time.
8. When considering an application for a clearing permit, the CEO of DWER is required to have regard to, among other things, the 'clearing principles' so far as they are relevant to the application.[8]
9. The clearing principles are listed in sch 5 of the EP Act. They state certain circumstances in which native vegetation should not be cleared. They are essentially a set of mandatory relevant considerations the CEO must take into account when determining clearing permit applications.
10. The CEO may make a decision that is seriously at variance with the clearing principles if, and only if, in the CEO's opinion there is a good reason for doing so.[9]
11. Clearing principle 1(d) provides that 'Native vegetation should not be cleared if it comprises the whole or a part of, or is necessary for the maintenance of, a threatened ecological community'. Until recently, the term 'threatened ecological community' was defined to mean 'an ecological community listed, designated or declared under a written law or a law of the Commonwealth as threatened, endangered or vulnerable'.[10] The definition was recently amended to mean an ecological community that is listed as a threatened ecological community under s 27(1) of the Biodiversity Conservation Act 2016 (WA) or that is to be regarded as a threatened ecological community under s 33 of that Act.[11]
12. The granting of a clearing permit does not remove the need for a person to obtain any development or planning approvals that may be required.

1. An 'ecological community' is a naturally occurring group of plants, animals and other organisms found in a particular type of habitat. The term 'ecological community' is used as a synonym for 'ecosystem type'.[12]
2. There are different types of ecological communities. Some are vegetationbased and are described based on the groups of plants that are found within them.[13]

1. The term 'environmentally sensitive area' is defined in s 51A of the EP Act to mean 'an area that is the subject of a declaration that is in force under section 51B'.
2. Section 51B(1) of the EP Act confers on the Minister the power to declare, by notice, 'an area of the State' or 'an area of the State of a specified class', to be an ESA for the purposes of the Clearing Provisions (an ESA notice).
3. An ESA notice is subsidiary legislation for the purposes of the Interpretation Act 1984 (WA).[14] Therefore, subject to exceptions, an ESA notice will come into operation when it is published in the Government Gazette.[15]

1. The ESA notice in issue in this case (the ESA Notice) was published in the Government Gazette on 8 April 2005.[16]
2. Clause 3 of the ESA Notice defines the term 'threatened ecological community' to mean

an ecological community that has been determined by the Minister to be a threatened ecological community and is referred to in the list of threatened ecological communities maintained by the chief executive officer of the department of the Public Service principally assisting in the administration of the Conservation and Land Management Act 1984.

1. By cl 4(1)(e) of the ESA Notice, an area covered by a TEC is declared to be an ESA, subject to other provisions within cl 4. Under cl 4(5) of the ESA Notice, such an area is not an ESA unless:

(a) the determination of the area has been made public; or

(b) the owner, occupier or person responsible for the care and maintenance of the relevant land has been notified of the area.

1. Clause 4(6) of the ESA Notice provides that, in cl 4, a reference to the determination of an area is a reference to the determination of the area as in force or effect immediately before the day on which the ESA Notice comes into operation (unless the contrary intention appears or the context otherwise requires).
2. Clause 4(7) of the ESA Notice provides that, in cl 4(5) and cl 4(6), the term 'determination' means 'the declaration, determination, designation, registration, listing, mapping or other description of the flora, ecological community, site or area'.

1. Section 181 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) provides that the Commonwealth Minister must, by legislative instrument, establish a list of TECs divided into the following categories: (a) critically endangered; (b) endangered; (c) vulnerable.
2. The legislative instrument that contains the list of Commonwealth TECs lists 'Banksia Woodlands of the Swan Coastal Plain ecological community' as an ecological community that is 'endangered'.[17]
3. It is an offence to take an action that results, or will result, in a significant impact on, or that is likely to have a significant impact on, a listed TEC.[18]

The factual history that led to the sending of the Letter The database

1. In August 1994, the Department began a project to identify rare and at risk ecological communities and develop ways to conserve them (TEC Project).
2. The TEC Project developed criteria for assessing the threat levels and conservation status of ecological communities (Criteria). The TEC Project caused a number of rare and at risk ecological communities to be nominated as TECs.
3. The Department began to maintain a list of TECs on a specifically developed database.
4. TECs are not usually location or property specific, although many of them are specific to a general region or area and are described by reference to certain physical features of the land on which they are found. When a TEC was identified as existing at a particular location, this was referred to as an 'occurrence' of the TEC. For each TEC entered into the database, the database included records of occurrences of the TEC known to the Department.

1. A number of the ecological communities initially entered into the TEC database by the Department were 'floristic community types' of the Swan Coastal Plain (SCP) which had been identified in a report published in 1994. The report was written by five botanists; Gibson, Keighery, Keighery, Burbidge and Lyons (Gibson and Keighery). It was entitled 'A floristic survey of the southern Swan Coastal Plain' (Gibson and Keighery Report).[19]
2. A 'floristic community' is a collection or group of different species of plants occurring together in a particular area. A 'floristic community type' (FCT) is a way of naming a particular collection of plants that occur together in a particular area.[20]
3. The Gibson and Keighery Report identified 43 FCTs of the SCP (30 types and 13 subtypes). One of these was named 'Banksia attenuata woodlands over species rich dense shrublands' and given the numerical identifier '20a'. In the Gibson and Keighery Report, FCT 20a was identified as 'endangered'.
4. In July 1996, the advisory group for the Department's initial TEC Project assessed FCT 20a as identified in the Gibson and Keighery Report against the Criteria and ranked FCT 20a as 'endangered'.
5. FCT 20a was subsequently entered in the list of TECs maintained on the Department's database and given the TEC description/identifier 'SCP 20a' to reflect that the TEC was based on FCT 20a of the Swan Coastal Plain.

1. In 2001, the Department sought the Minister's endorsement of the list of TECs that had been developed to date.[21]
2. The Department sought endorsement by sending two briefing notes to the Minister which, among other things, recommended that the Minister approve 'the current list of WA TECs approved by [the Department] ... detailed in Attachment 3' to the first briefing note. That list contained 'SCP 20a: Banksia attenuata woodlands over species rich dense shrublands'.
3. On 8 November 2001, the Department received the briefing notes back from the Minister. On the second briefing note, the Minister had written 'Approved' and 'See 1st briefing note' before signing the second briefing note and dating her signature 6 November 2001. The enclosed copy of the first briefing note had been stamped 'Approved' and was endorsed with the Minister's signature dated 6 November 2001. Above the 'Approved' stamp, each of the Department's recommendations had been ticked by the Minister.

1. In early September 2007, the City engaged two botanists, Ms Cate Tauss and Dr Arthur Weston (Tauss and Weston), to carry out a survey of the flora, vegetation and wetlands of the MaddingtonKenwick Strategic Employment Area (MKSEA). The MKSEA is an area of rural land, 585 ha in area, within the district of the City. It is on the SCP.
2. The details of Tauss and Weston's work and report will be discussed when considering Issue 2 of the counterclaim. For present purposes, it is sufficient to note that Tauss and Weston reported that there was a TEC on the Property, being FCT 20a, and mapped the area.

1. The Department received a copy of the final Tauss and Weston report from the City sometime around January 2011. The report was titled 'The Flora, Vegetation and Wetlands of the MaddingtonKenwick Strategic Employment Area'. I will refer to this report as the 'Tauss and Weston Report'.
2. In mid2012, Ms Valerie English of the Department carried out a detailed review of the Tauss and Weston Report.[22] Ms English was, and still is, the principal ecologist in the Species and Communities Branch of the Department.
3. Following Ms English's review, she decided that the Property could be listed as an occurrence of TEC SCP 20a in the Department's TEC database.[23]
4. On 3 December 2012, Ms English sent the Letter to Valentino.[24]
5. The Letter began by stating:

This letter is to formally advise you that areas of vegetation on the property that you own at Lot 15 Victoria Road, Kenwick, have been classified by this Department as a threatened ecological community (TEC).

TECs have a special level of legal protection under Western Australian law. Under the [EP Act], any clearing of native vegetation requires a permit, unless where an exemption applies. Provisions in the [Clearing Regulations] provide exemptions for certain daytoday routine vegetation clearing activities, except where the clearing is within 'environmentally sensitive areas'. TECs have been defined under these Regulations as environmentally sensitive areas and any clearing proposals affecting TECs must be approved under a specific permit.

1. The Letter asked that, if Valentino was considering clearing vegetation within the identified TEC area, it contact the Department or visit their website for more information on the permit application process and permit requirements.
2. The Letter asked Valentino to contact the Department if it did not know what special care needed to be taken, or required further advice or assistance, including help in identifying the TEC area. The Letter provided the name and telephone number of Valentino's 'contact officer'.
3. The Letter said that, if Valentino sold or transferred the Property, it should advise the new owner or manager of the locations of any TECs.
4. The Letter contained a summary description of TEC SCP 20a and a map of the approximate boundary of the occurrence of the TEC on the Property.[25] The total area covered by the TEC was approximately 7,000 sqm.
5. A copy of the Letter was provided to the City on 10 December 2012.[26]
6. Valentino received the Letter sometime on or after 2 January 2013 but before 16 January 2013.[27]

1. Paragraph 8.6 of Valentino's Defence pleaded that the Letter was of 'no force or effect'.[29] Many of the matters pleaded in par 8.6 had been withdrawn by the end of the trial.[30] Others were conceded to be repetitive.[31] By the end of the trial, the Valentino parties relied upon four contentions. These were:

(1) the Minister did not make a 'determination' for the purposes of the ESA Notice that FCT 20a was a TEC;

(2) the Letter was not effective to notify Valentino of the area on the Property covered by the TEC (and therefore the area was not an ESA);

(3) the vegetation on the Property was not, in fact, FCT 20a; and

(4) there was no TEC on the Property.[32]

1. The first contention is the same as Issue 1 in the counterclaim. For the reasons given in the section dealing with the counterclaim, I find that the Minister did make a determination for the purposes of the ESA Notice that FCT 20a was a TEC.
2. The second contention is the same as Issue 3 in the counterclaim. For the reasons given in the section dealing with the counterclaim, I find that the Letter was effective to notify Valentino of the area covered by the TEC.
3. The third and fourth contentions raise the same questions raised by Issue 2 in the counterclaim. The Valentino parties bore the burden of proof in relation to these questions. For the reasons given in the section dealing with the counterclaim, I find that they failed to discharge that burden.
4. Accordingly, I conclude that the Letter did have force and effect. It had the effect of notifying Valentino of the area covered by the TEC.
5. As noted earlier,[33] a TEC area is not an ESA unless or until the owner of the land is notified of the TEC area. When Valentino received the Letter, the TEC area on the Property became an ESA.

Relevant factual events and findings The zoning of the Property

1. At the time of the Contract, the MKSEA was zoned General Rural. However, it was identified in State Government planning strategies as an area of future industrial development.
2. The MKSEA was divided into four precincts to assist in dealing with planning issues that were discrete to each precinct. The Property lies within precinct 1 of the MKSEA.
3. Prior to the contract date, the City submitted to the Western Australian Planning Commission (WAPC) that the Metropolitan Regional Scheme (MRS) be amended to rezone precinct 1 to 'industrial'.[34] The WAPC approved such an amendment. Precinct 1 was classified 'industrial' under the MRS.[35]
4. After the contract date, but before the settlement date, the City amended its town planning scheme to change the zoning. The City zoned precinct 1 as 'business development'.[36] It appears that the City uses 'business development' to provide for 'the progressive and planned development of areas for commercial and industrial uses generally in accordance with an Outline Development Plan'.[37]

1. Most of the facts relating to the purchase of the Property were not in dispute. The parties helpfully provided a statement of agreed facts at my request.[38] Unless otherwise indicated, this section sets out agreed facts.

Valentino's engagement of CRI to sell the Property

1. On 7 November 2012, Mr Colby signed an agreement by which Valentino authorised CRI to offer the Property for sale on the terms and conditions in that agreement. The agreement was titled (in lowercase) as a 'selling agency agreement, commercial and industrial: exclusive agency' (Selling Agency Agreement).[39] Mr La Rocca was the real estate agent handling the sale for CRI.[40]

Events leading up to the signing of the Contract

1. In late November 2012, Mr Ardizzone telephoned Mr La Rocca and said he was interested in inspecting the Property.
2. On 29 November 2012, Mr La Rocca sent Mr Ardizzone an email, attached to which was a sales flyer and a letter from the 'MKSEA Precinct 1 Landowners Association Inc'.[41]
3. The sales flyer began with the phrases 'Industrial Land/Development' and 'Future Prime Industrial Land'. It said the zoning was 'Proposed Industrial'. It said an Outline Development Plan was 'awaiting WAPC Approval'.
4. The letter said that the MKSEA had been subject to an MRS amendment to rezone the land from rural to industrial, which had been passed by Parliament and approved by the WAPC on 18 September 2012. It said that the City was now required to amend its local planning scheme in line with the MRS and that an Outline Development Plan would need to be prepared. The letter attached a draft Outline Development Plan for comment by its members.
5. I will refer to these documents collectively as 'the Marketing Documents'.
6. On at least one occasion[42] before Mr Ardizzone signed the offer, Mr Ardizzone told Mr La Rocca what he intended to use the Property for. Mr Ardizzone's evidence was that he told Mr La Rocca he was planning on putting his rental business on the Property and also planned to live there with his son.[43] Mr La Rocca knew Mr Ardizzone's rental business hired out plant and equipment to the mining and resources industry.[44] Mr La Rocca's evidence was that Mr Ardizzone told him he wanted to use the Property as his primary residence and to store plant, equipment and machinery on the back half of the land.[45]
7. Mr Ardizzone's evidence was that, during an inspection, he told Mr La Rocca he was not buying the Property for the house, but for the five acres of potentially industrial land to set up his business.[46] It was put to Mr Ardizzone that he did not say this to Mr La Rocca. Mr Ardizzone said that he did.[47] Mr La Rocca said he did not recall that conversation.[48] I accept Mr Ardizzone's evidence.[49]

1. By 4 December 2012, the Colbys, on behalf of Valentino, had accepted an offer by Mr Ardizzone to purchase the Property for $1,800,000.
2. The Contract was on a standard REIWA form, and incorporated the General Conditions. The Contract was subject to finance, within 45 days of acceptance, of 80% of the purchase price. The latest date for Mr Ardizzone to obtain finance approval under the Contract was 18 January 2013,[50] although this date was later extended.

Mr Ardizzone's belief in relation to restrictions on the use of the Property

1. Mr Ardizzone believed he would be free to clear vegetation on the Property. This belief, and its source, became a point of contention in the trial. As will be seen, the defendants argued that Mr Ardizzone was not misled by them, but rather by his own erroneous assumptions.
2. I intend no disrespect in describing Mr Ardizzone as an unsophisticated, plainspeaking witness. His ability to fully articulate his reasoning processes was limited. This was illustrated, in my view, by his attempts to explain why he believed he would be free to clear vegetation on the Property.
3. Mr Ardizzone said that he believed that there would be no restriction on his use of the whole of the Property. He said that he believed, from his conversations with Mr La Rocca and the Marketing Documents he had been given, that the Property would be rezoned industrial.[51]
4. He agreed that he believed that, upon rezoning, there would be no restriction on clearing vegetation.[52] However, he denied that he had simply assumed that. He said:[53]

It wasn't an assumption. At the end of it I was presented with a document - with a fact sheet that the - that the property was to be rezoned - that it was imminent to be rezoned industrial so the thing is that if you have an - if land is to be rezoned industrial, it needs to be - it needs to be basically set up as an - as an industrial piece of land.

1. He agreed that the fact sheet did not say anything about clearing and did not say that industrial zoning meant that land could be cleared.[54]
2. He repeated that the fact sheet along with the MKSEA report and rezoning documents that he received from Mr La Rocca led him to believe the block was available to be rezoned industrial.[55]
3. He was asked why he had believed that a consequence of rezoning is 'you can clear as much as you like for your industrial activity'. He replied:[56]

Well, if you - if you need to build workshops or anything to do with an industrial piece of land, obviously, it's going to involve clearing.

You now know, don't you, Mr Ardizzone, that when large tracts of land are zoned industrial, it is not the case that that means that people can clear whatever they like - they can clear native vegetation to the extent that they want for their business because it's zoned industrial; that's not the case, is it?I don't know.

Well, is it your present belief that if land is zoned industrial, that means that by virtue of that zoning there will be no restriction on clearing land that might be an ESA or a TEC?Can you repeat that please.

Is it your present understanding that land that is rezoned industrial can be cleared and that whatever restrictions there might have been in relation to clearing native vegetation no longer apply because it's zoned industrial; is that your case?No.

Sorry, is that your present understanding?Not - I - not - not entirely.

Well, what's the difference? When you say not entirely, what do you mean?Well, if it's - I understand that if there is an - if there is an ESA or a TEC on the - on the area it can't be cleared. It doesn't matter whether it's industrial or not.

Nevertheless, previously it was your assumption, was it not, that zoning to industrial did carry that consequence; that you could clear whatever vegetation that was there native or otherwise?I didn't assume anything in that respect.

1. It was put to Mr Ardizzone that it was his case 'that as those documents intimated, there might be rezoning industrial and, as and when that happened, a consequence would be that you could clear whatever you needed for your industrial activity'. He agreed.[58]
2. In my view, despite the limitations of Mr Ardizzone's explanations, it is likely that Mr Ardizzone's belief that there would be no relevant restrictions on his ability to use all of the land for industrial purposes, once rezoning had occurred, was contributed to by the Marketing Documents as a whole. I use the word 'relevant' because no party suggested that Mr Ardizzone believed he would be free to use all of the land irrespective of any restrictions such as, for example, restrictions imposed by the criminal law.[59]
3. Mr Ardizzone needed at least five acres for his business.[60] The Marketing Documents described the Property as 'Industrial/Land Development' and 'Future Prime Industrial Land', with an area of approximately 20,200 sqm (approximately five acres). He drew from the Marketing Documents that the Property would be suitable for his business.

Valentino parties receive the Letter and communicate with Mr La Rocca

1. The following facts are not in dispute.
2. Around 2 January 2013, Mr Colby received and read the Letter.[61] Mr Colby said that, shortly after he read the Letter, he telephoned Mr La Rocca to discuss it with him. Mr Colby said a recorded message told him that CRI was closed for the festive season.
3. On 16 January 2013, Mr Colby again rang Mr La Rocca and this time was able to speak with him (16 January conversation). Mr Colby discussed the Letter he had received with Mr La Rocca.[62] Ultimately, Mr Colby instructed Mr La Rocca to give the Letter to Mr Ardizzone. Mr La Rocca asked Mr Colby to send a copy of the Letter to him.
4. The 16 January conversation lasted for approximately 11 minutes, finishing at 1.09 pm.
5. Immediately afterwards, at 1.10 pm, Mr La Rocca telephoned CRI's office.
6. At 1.27 pm, 18 minutes after the 16 January conversation, Mr Colby emailed a copy of the Letter to Mr La Rocca's email address (16 January email).
7. Mr La Rocca said he was at home that day. He admitted, however, that he still received emails on his iPhone and iPad when he was at home.
8. Those facts are not in dispute. However, Mr Colby and Mr La Rocca disagree about what Mr Colby said about the Letter. In particular, Mr La Rocca denies that Mr Colby mentioned a threatened ecological community. Mr La Rocca also claims not to have seen the 16 January email.

What did Mr Colby tell Mr La Rocca about the Letter?

1. Mr Colby's witness statement was to the following effect.
2. Mr Colby said that he told Mr La Rocca words to the effect that he had received a letter that referred to a threatened ecological community. Mr Colby said that he read the Letter, or most of it, to Mr La Rocca over the phone. Mr Colby said that Mr La Rocca told him that it was nothing to worry about, and all Mr Ardizzone would need to do is to spend about $3,500 on an environmental report which would allow him to clear the block. Mr Colby told Mr La Rocca that he was instructing Mr La Rocca, as his agent, to do whatever Mr Colby was required to do in relation to the Letter. Mr La Rocca said that Mr Colby should send the Letter to him and he would deal with it. Shortly after that conversation, Mr Colby sent an email to Mr La Rocca attaching the Letter.[63]
3. In his oral evidence, Mr Colby said he was sure he had read out to Mr La Rocca the first paragraph of the Letter,[64] which referred to there being a threatened ecological community on the Property and defined it as a 'TEC'. Mr Colby was also adamant that he had used the term 'TEC' in the conversation because 'that's what the letter was all about'.[65]
4. In his first witness statement, Mr La Rocca said that Mr Colby had only said 'you do realise that if the buyer wants to clear the trees that he will need to seek approval from the DEC and the City of Gosnells'. Mr La Rocca said that he told Mr Colby that he was aware of that and that the buyer had been told that. Mr La Rocca said that he understood that Mr Colby was talking about the 'usual requirement for landowners to gain approval before clearing land zoned as Rural'.[66] Mr La Rocca said he did not recall ever speaking to Mr Colby about a threatened ecological community on the Property and did not recall receiving Mr Colby's email or seeing the Letter prior to the commencement of these proceedings.[67]
5. The week before the hearing, Mr La Rocca filed a second witness statement.[68] In this, Mr La Rocca said that Mr Colby told him he had received a letter from 'the DEC' which 'concerned the trees' on the Property. Mr La Rocca said that he told Mr Colby that he had already informed Mr Ardizzone that he could not clear the trees without a permit or approvals from the relevant authorities. He said he asked Mr Colby to send him a copy of the Letter. He gave no other detail of the conversation. He said that he never saw a copy of the Letter.[69]
6. In crossexamination, Mr La Rocca said that Mr Colby had also said something about a particular process that needed to happen and that Mr Ardizzone should investigate further.[70] He could not explain why that was not in his witness statements.[71] Mr La Rocca said that was all Mr Colby had said. Mr La Rocca said that Mr Colby had not said what the concerns were with the trees. He said this was 'never explained' to him.[72] He denied that Mr Colby had used the words 'threatened ecological community'.[73]
7. In crossexamination, Mr La Rocca said that Mr Colby had asked him for advice as to what to do with the Letter, and that he told Mr Colby that it should be passed on to Mr Ardizzone. Mr La Rocca said that Mr Colby asked him to do that, so he asked Mr Colby to send him the Letter so that he could.[74]
8. Mr La Rocca's evolving evidence about the 16 January conversation is particularly troubling in view of the significance of that conversation. The misleading conduct claim is based upon the failure of each defendant to disclose the Letter to Mr Ardizzone, alleged in par 19 of the Statement of Claim. Paragraph 15 of the Statement of Claim alleges that the Agent parties knew the contents of the Letter by at least 16 January 2013 (the day of the conversation and email). The particulars allege that Mr Colby provided the Letter to Mr La Rocca by email.[75] The Agent parties' defence, as it was prior to the trial commencing,[76] denied both par 15 and par 19 of the Statement of Claim.
9. Mr Colby's account is more consistent with the objective evidence, namely the length of the telephone call (11 minutes) and Mr La Rocca's call to CRI one minute later.
10. In addition, as I will explain later,[77] I reject Mr La Rocca's evidence in its entirety, unless it is supported by documentation or the evidence of some other witness, or is against his interest. While there were aspects of Mr Colby's evidence that were unsatisfactory,[78] I accept Mr Colby's account of the 16 January conversation.
11. I find, therefore, that Mr La Rocca knew of the Letter and the existence of the TEC by 16 January 2013.
12. Further, Mr La Rocca's knowledge is to be imputed to the third defendant, CRI, because he was acting as CRI's agent in the transaction. Accordingly, I find that CRI should be treated as knowing of the Letter and the existence of the TEC by 16 January 2013.

1. Mr Colby sent a copy of the Letter to Mr La Rocca's email address 18 minutes after the 16 January conversation had ended. Mr La Rocca's evidence was that he never saw the email.
2. Mr La Rocca's efforts to explain this evidence were as follows.
3. In his first witness statement, Mr La Rocca said that he had been injured in a fall in November 2012. He said that, from the time of his injury until about the end of March 2013, he stopped working for CRI, except in relation to the sale of the Property. He said that, after the Contract was signed, he concentrated on recuperating from his injuries. He said that, during his recuperation, he was able to access his work email from home if required. He said he checked his emails occasionally, but was focussed on his recovery. He said he went into the office on maybe one or two occasions in relation to the sale of the Property.[79]
4. Mr La Rocca said that his recollection of CRI's procedure was that, when someone was away from work, another staff member would screen the emails and only refer urgent matters to that person.[80] The Agent parties did not adduce any evidence from CRI as to that alleged procedure or whether it had been implemented during the period Mr La Rocca claimed to have been recuperating. Nor did CRI, having identified the 16 January email in its discovery, adduce evidence that there had been any difficulty with its email systems during the relevant period.
5. In crossexamination, Mr La Rocca admitted that, despite the system he described, the original email would still appear on his iPad and iPhone. The only difference was, he said, that it would not show up as an unread email if it had been read by someone at the office.[81]
6. Counsel for the Agent parties, Mr Hancy, fairly conceded that it was open to me to conclude that the email was on Mr La Rocca's devices.[82] I do so conclude.
7. Mr La Rocca's evidence about the extent to which he was engaged in recuperation seemed overstated.[83] He was cleared to drive after only two weeks.[84]
8. In his oral evidence, he said he would check his emails 'on occasion'.[85] After some exchanges, he admitted he did that at least once a day.[86] He said, however, that he only looked at emails that had come in that day, and only those that were marked as unread.[87]
9. He admitted that, after the 16 January conversation, he waited for the email to arrive. However, he said he did not check his iPhone for the email that day or the next.[88] He agreed he did not call Mr Colby to ask about the Letter. He agreed he had been instructed by Mr Colby to pass the Letter on to Mr Ardizzone. It was put to him 'And you did nothing to make sure that occurred?' He replied 'I did my best endeavours to check for the email at the time'. He was asked what his best endeavours were and he said 'to occasionally check my emails to see if it had come through'.[89]
10. Mr La Rocca said that he was taking painkillers at the time that were affecting his judgment 'a little bit'.[90]
11. Mr La Rocca was taken to his phone records that showed he had made 9 15 calls on each day in the period 15 January 2013 (the day before the 16 January conversation) to 18 January 2013[91] (the last day for finance approval under the Contract, before time was extended).
12. Later, Mr La Rocca was taken to emails he had sent in early 2013. Mr La Rocca agreed he was overseas from 27 February 2013 to 7 March 2013. He admitted checking his emails while he was overseas in relation to the sale of the Property.[92]
13. For the following reasons, I do not accept Mr La Rocca's evidence that he did not see the 16 January email and the attached Letter.
14. First, after the 16 January conversation, Mr La Rocca was waiting for the email. It was sent to him at 1.27 pm, 18 minutes after the conversation ended. It is to be expected that he would have received the email shortly after it was sent. It is likely that he would have received the email within half an hour of it being sent. Mr La Rocca used his phone six times from 2.01 pm to 2.31 pm that day. He used it another four times between 3.17 pm and 5.00 pm.[93]
15. Second, in the days following, Mr La Rocca sent many emails and made many phone calls, despite it being during his alleged period of recuperation. He checked his phone for emails even when he was overseas.
16. Third, as will be seen,[94] Mr La Rocca remembered the 16 January conversation when he subsequently spoke to Mr Ardizzone about finance approval eight days later. Despite this, he did not mention the Letter to Mr Ardizzone at that time (or ever). Further, despite remembering it eight days later, Mr La Rocca did not, at any time, contact Mr Colby to say he had not received it. Nor did he mention it in the communications that he had with Mr Colby later in January and in February 2013.
17. Mr La Rocca's evidence was implausible and I reject it. I find his evidence to have been untruthful. I find that Mr La Rocca received the 16 January email and Letter the same day and read it the same day.
18. This conclusion is supported by my assessment of Mr La Rocca's credibility as a whole.[95]

1. It is common ground that Mr Ardizzone was never given a copy of the Letter, or told about it, by anyone prior to the settlement.[96]

1. Later, in dealing with Mr Ardizzone's claim of misleading conduct, I refer to the Valentino parties' pleading that their failure to disclose was inadvertent. As will be seen, I concluded that it was unnecessary to determine this issue in light of the way in which the Valentino parties ultimately put their case. However, in case I am wrong about that, it is appropriate to make findings as to the circumstances of the failure to disclose.
2. Both Mr and Ms Colby read the Letter around 2 January 2013 when they returned from a trip to Sydney.[97] Mr Colby said he thought it was his 'ethical responsibility' to let Mr Ardizzone know that 'there could be a problem'. He believed the Letter needed to be disclosed to Mr Ardizzone.[98] Ms Colby said that Mr Colby told her that he would contact Mr La Rocca and arrange for the Letter to be given to Mr Ardizzone. She assumed that had happened.[99]
3. Although Mr Colby believed the Letter needed to be disclosed to Mr Ardizzone, he did not immediately email it to Mr Ardizzone or attempt to contact him. He also did not immediately email it to Mr La Rocca. Mr Colby said that he wanted to speak to Mr La Rocca before he did anything with the Letter.[100]
4. Mr Colby was apparently not able to speak to Mr La Rocca when he first tried to call him, as the CRI office was closed.
5. Mr Colby did not actually speak to Mr La Rocca until 16 January 2013. In the interim, Mr Colby made no effort to disclose the Letter to Mr Ardizzone.
6. Mr Colby's evidence was that, when he spoke to Mr La Rocca during the 16 January conversation, he was reassured by Mr La Rocca's statements that the Letter was, in effect, 'nothing to worry about'. Mr Colby's evidence was that it was only at that point that he instructed Mr La Rocca to do whatever was required to be done with the Letter. He made it clear to Mr La Rocca that Mr Ardizzone should be told about the Letter.[101] He emailed the Letter to Mr La Rocca after the call.
7. Mr Colby's delay is to be considered in the context that, at that time, the latest date for Mr Ardizzone to obtain finance approval under the Contract was 18 January 2013.
8. I find that Mr Colby did not disclose the Letter to Mr Ardizzone, or arrange for it to be disclosed, prior to the 16 January conversation because he understood that the Letter might impact upon the sale of the Property, and he did not want to disclose the Letter to Mr Ardizzone before he had spoken to Mr La Rocca and ascertained what the impact might be. This was a deliberate decision to not disclose the Letter at that point. He only decided to disclose the Letter once he had been reassured by Mr La Rocca that it was nothing to worry about.
9. Mr Colby believed the Letter should be disclosed to Mr Ardizzone. Ms Colby said she believed that her husband was going to arrange that. Neither sought to have the Letter provided to Mr Ardizzone prior to the 16 January conversation. After the 16 January conversation, neither made any effort to confirm that Mr La Rocca had done so.

1. Mr La Rocca said he advised Mr Colby in the 16 January conversation that the Letter should be disclosed to Mr Ardizzone.[102] Mr La Rocca did not say to Mr Colby that the Letter should not be, or did not have to be, disclosed. Mr La Rocca said that Mr Colby asked Mr La Rocca to pass the Letter on to Mr Ardizzone, and that he had asked Mr Colby to send him the Letter so that he could.
2. I have set out my finding that Mr La Rocca received and read the 16 January email and Letter that day. I found his evidence to the contrary to be untruthful.[103]
3. Mr La Rocca did not pass the Letter on.
4. Mr La Rocca remembered the 16 January conversation and the Letter when he subsequently spoke to Mr Ardizzone about finance approval on 24 January 2014.[104] Despite this, he did not mention the Letter to Mr Ardizzone at that time (or ever).
5. Mr Hancy suggested that Mr La Rocca may have been confused about dates, and that Mr La Rocca may have been remembering a conversation with Mr Ardizzone prior to the 16 January conversation. I do not accept this for the following reasons.

(1) First, Mr La Rocca was asked if he recalled a telephone conversation with Mr Ardizzone on 24 January 2013. Mr La Rocca's response was 'Finance approval'. Mr La Rocca agreed that Mr Ardizzone had told him during that call that he could not obtain a residential loan and had asked for an extension of time.[105] On 25 January 2013, Mr La Rocca sent Mr Ardizzone a variation of contract form to vary the finance approval date to 15 February 2013, and asked Mr Ardizzone to sign the form and return it as soon as possible.[106] The fact that Mr La Rocca sent this on 25 January 2013 suggests he was right to say that his conversation with Mr Ardizzone about finance approval was on 24 January 2013.

(2) Second, Mr La Rocca testified that he had not told Mr Ardizzone about the Letter in this conversation because he instead told Mr Ardizzone about issues experienced by the owner of a nearby property, 37 Victoria Road, in relation to wetlands and trees, and had told Mr Ardizzone he should get advice. I do not accept that Mr La Rocca told Mr Ardizzone these things.[107] However, Mr La Rocca did not assert that the finance conversation occurred prior to the 16 January conversation. He was asserting that it was afterwards and that he had, in effect, discharged his obligation by telling Mr Ardizzone about the 37 Victoria Road issues.[108]

(3) Third, Mr La Rocca confirmed on multiple occasions that he remembered the 16 January conversation when he spoke to Mr Ardizzone about extending the time for finance.[109]

(4) Fourth, although of little additional weight, Mr La Rocca's written statement suggested that his conversation about finance approval with Mr Ardizzone occurred after the 16 January conversation with Mr Colby.[110]

1. Mr La Rocca knew Mr Ardizzone wanted a large area of land,[111] and I find that he knew it was likely that Mr Ardizzone would seek to avoid the Contract if he knew about the TEC. Although Mr La Rocca described his work as a real estate agent as a hobby, he said he spent 'possibly 20 [hours] if that' each week doing it.[112] The evidence also showed that he sent emails early in the day and late at night, and he generated a lot of income from his real estate work.[113]
2. Mr La Rocca did not give evidence that his failure to disclose the Letter was inadvertent. Rather, his evidence was that he never received the Letter and that he had conveyed the concerns that he understood had been raised in the Letter by telling Mr Ardizzone about the 37 Victoria Road issues.
3. I find that Mr La Rocca's failure to disclose the Letter was deliberate.

1. Mr Ardizzone did not get finance approval before the deadline imposed by the Contract of 18 January 2013. A variation to the Contract to extend the deadline was made on 4 February 2013 and a further variation made on 20 March 2013.

1. Settlement occurred on 22 March 2013.
2. On that day, Mr Ardizzone attended the Property and met with Mr La Rocca and Ms Colby. Ms Colby handed him the keys.
3. According to Mr Ardizzone, at one point, Mr La Rocca said to Mr Ardizzone 'Congratulations. By the way, there is some sort of easement on the trees out the back but it's nothing to be concerned about'. Mr Ardizzone did not know what an easement was, but trusted Mr La Rocca and believed his assertion that it was nothing for him to be concerned about.[114]
4. Mr Hancy submitted that, if Mr La Rocca had said this, it was not credible that Mr Ardizzone would not have asked him about it.[115]
5. Mr La Rocca said he did not recall mentioning some sort of easement to Mr Ardizzone. He was given two opportunities to deny he had said that and, on each occasion, repeated that he did not recall it.[116]
6. I accept Mr Ardizzone's evidence. I accept that he did not ask Mr La Rocca any questions, or take any other steps, because he believed Mr La Rocca's assertion that it was nothing for him to be concerned about.

1. Around April 2013, Mr Ardizzone and his partner, Ms Flight, began clearing some of the vegetation on the Property. They did this over a period of several months.
2. They cleared all around the house and the demountable unit. They cleared the middle of the Property. They cleared some of the vines and creepers in the front, middle and rear of the Property and trees in the middle and rear. They also cleared an area of about 50 m in diameter at the rear of the clearing in the middle of the Property to allow trucks to turn around.[117]
3. Some of the vegetation cleared towards the rear of the Property was within the TEC area. At that time, Mr Ardizzone did not know that there was a TEC area on the Property.
4. There is no evidence that any of the vegetation cleared outside of the TEC area was native vegetation. Therefore, there was no evidence that any clearing outside the TEC area was unlawful. Some of the vegetation cleared was clearly not native vegetation.[118]
5. The clearing within the TEC area was, of course, unlawful.[119] Mr Ardizzone did not become aware of that, however, until he was contacted by the City.[120]

1. In January 2014, Mr van Lieven, the coordinator of environmental management for the City, became aware that native vegetation on the Property had been cleared. In early February, he met with Mr Ardizzone to advise him there was a TEC on the Property.[121]
2. On 18 February 2014, Mr Ardizzone received a letter from the City which referred to the storing of equipment and clearing without planning approval. It directed Mr Ardizzone to make an application for approval. The letter also referred to clearing over a 'Threatened Ecological Area' and said that the attached 'Planning and Development Notice' had been issued for the restoration of that area.
3. I will refer to the City's letter and the notice collectively as the 'City Notice'.
4. As a result of the City's advice, Mr Ardizzone became aware of the TEC on the Property.
5. After becoming aware of the TEC, Mr Ardizzone engaged with the City and the Department in relation to it.
6. As a result of Mr Ardizzone's engagement with the City, a vegetation rehabilitation plan was agreed in relation to the TEC area. Among other things, it required the TEC area to be fenced. The TEC area was only to be accessed for the purposes of maintenance and fire management.[122] Later, when Mr Ardizzone made an application to build a hardstand on the Property, the City required that there be a buffer zone between the fence around the TEC area and the hardstand.[123]

Mr Ardizzone asked the defendants if they knew about the TEC

1. Mr Ardizzone also telephoned Mr La Rocca and Ms Colby after receiving the City Notice to ask if they were aware of the TEC. Of course, both Mr La Rocca and Ms Colby were aware of the Letter long before Mr Ardizzone telephoned them.[124]

1. Mr Ardizzone said he called Mr La Rocca on 25 February 2014. He asked Mr La Rocca if he knew there was a threatened ecological community on the Property. Mr Ardizzone said that Mr La Rocca said 'I am shocked, Joe. Shocked. I didn't know. There was nothing on the title. I'm not sure if the owner knew either'.[125]
2. Mr Ardizzone was crossexamined about this evidence.[126] Mr Hancy asked him how Mr La Rocca could express shock when all that Mr Ardizzone had asked him was if he knew there was a threatened ecological community on the Property. Mr Hancy submitted it was not credible that Mr La Rocca would say he was shocked when that was all that had been said.[127] I do not accept that submission. Mr La Rocca knew about the contents of the Letter and had a copy of it. In addition, Mr La Rocca knew he had been told to give the Letter to Mr Ardizzone and had decided not to do that.
3. Mr La Rocca did not refer to this conversation in his evidence. In crossexamination, he denied it. He was taken to phone records which showed that, on 25 February 2014, there was a telephone call from Mr Ardizzone's phone to Mr La Rocca's phone that lasted more than 10 minutes. Mr La Rocca said that he did not recall speaking to Mr Ardizzone for about 10 minutes in February. He said he did not recall telling Mr Ardizzone that he did not know about the Letter from the Department.[128]
4. As explained in a later section,[129] I reject Mr La Rocca's evidence in its entirety, unless it is supported by documentation or the evidence of some other witness, or is against his interest. Further, while I do not accept Mr Ardizzone's evidence entirely,[130] I accept his evidence on this point.
5. I find that Mr La Rocca falsely denied that he knew about the TEC in the 25 February 2014 conversation.

1. After obtaining Ms Colby's telephone number from Mr La Rocca, Mr Ardizzone then called Ms Colby. He made a note of his conversation with her at the time.[131] He said that Ms Colby said she did not recall getting a letter about a TEC but was aware that something was going on. Towards the end of the conversation he said he asked her if she made a habit of nondisclosure. He claims she replied 'I am going to choose my words carefully'.[132]
2. Ms Colby's evidence as to this is detailed in a later section.[133] In short, Ms Colby did not deny the telephone conversation took place but said that she could not recall it.[134]
3. As to this conversation, I accept Mr Ardizzone's evidence and do not accept Ms Colby's evidence.[135] I infer from Ms Colby's words that she knew that admitting her knowledge of the TEC might be adverse to her interests.

1. After the Department became aware of the clearing, Ms English visited the Property with another departmental officer.[136] This was on 11 March 2014.
2. During the visit, Ms English and the other departmental officer viewed the native vegetation on the Property and remapped the reduced boundary of the TEC area using a GPS device.[137]
3. On 12 March 2014, Ms English sent an email to Mr Ardizzone giving advice about management of the TEC and attaching a map showing the amended boundary of the TEC area on the Property.[138]
4. Ms English arranged to have the TEC database updated to reflect the amended boundary. It has not been amended since.[139]

1. On 16 June 2014, Mr Ardizzone wrote to each of Mr La Rocca and Valentino, attaching his letter to the Ombudsman of the same date.[140] In each letter, Mr Ardizzone said that the letter to the Ombudsman outlined the damages that 'you have in part caused, although I hold the city in part responsible I also hold you responsible as [the real estate agent (in the letter to Mr La Rocca) and the landowner (in the letter to Valentino)] for failure to disclose'.
2. In the letter to the Ombudsman, Mr Ardizzone complained that he was not told that the Property had a TEC on it, by any party or interested person, at any stage during the purchasing process. He further wrote:

Since being informed of the TEC in February 2014, I've approached the real estate agent, Walter La Rocca from CRI Property Solutions, who denied all knowledge of the TEC, and previous landowner Paula Colby who said she would like to be careful with her words although she knew there was something going on with the trees down the back.

1. Neither of the Colbys nor Mr La Rocca responded to the letter.

Did Mr Ardizzone unlawfully clear on the houseside of the fence?

1. It will be recalled that, among other things, the vegetation rehabilitation plan required the TEC area to be fenced. Aerial photographs show that the fence did not entirely surround the TEC area remapped by Ms English. The fence line cut across part of the TEC area. The part of the TEC area that was left on the houseside of the fence line was cleared.[141]
2. The defendants submitted that Mr Ardizzone had cleared that part of the TEC area unlawfully. This was part of a broader submission that Mr Ardizzone had a cavalier attitude to regulations and the environment and intended to clear the vegetation irrespective of any relevant approvals that may be required by any authority.
3. Mr Ardizzone denied that he had cleared the vegetation on the houseside of the fence unlawfully. He said the fencing was put in in consultation with the City to implement the vegetation rehabilitation plan.[142]
4. Mr van Lieven, from the City, was asked about this in crossexamination. He said that the fence line did cut through the TEC area, but the area outside the fence line had already been cleared. He said he did not approve any clearing of the land. He said that, if Mr Ardizzone had wanted to clear any of the land, he would have had to apply for development approval.[143]
5. The vegetation rehabilitation plan, dated 12 September 2014,[144] showed that there had been a change in the alignment of the fence from what was originally proposed.
6. The vegetation rehabilitation plan included an aerial photograph showing the fence line that had initially been proposed (original fence line). It was curved so as to capture all of the houseside of the TEC area except for the turnaround area that had been cleared prior to the remapping. The vegetation rehabilitation plan stated that the turnaround area of 550 sqm was excluded 'as per agreement with the City, as the likelihood of natural regeneration is highly unlikely.[145]
7. The vegetation rehabilitation plan included an aerial photograph of the new fence line 'to be installed' (final fence line). This became the actual fence line. It was in straight lines and excluded more of the TEC area.[146]
8. Mr van Lieven said that, 'from memory', he had devised the fence line on the basis of discussions with Mr Ardizzone and Ms Flight.[147]
9. However, the vegetation rehabilitation plan stated that the final fence line had been 'agreed to in a phone conversation with the City's Acting Environmental Coordinator on 3 July 2014'.[148] This was obviously someone other than Mr van Lieven. None of the parties referred to that statement and Mr van Lieven was not asked if it refreshed his memory as to the circumstances in which the final fence line was agreed.
10. In the photograph showing the final fence line, it appears that there was some vegetation in part of the TEC area that was to be outside of the fence line. None of the parties asked Mr van Lieven about this, or referred to it in submissions.
11. Accordingly, after reserving my decision, I advised the parties that I would give them the opportunity to comment on this evidence and drew the parties' attention to Mr Hancy's submission that the clearing near the fence line was relevant to his submission that Mr Ardizzone was willing to clear vegetation regardless of restrictions.[149]
12. Each party to the original action filed written submissions on these issues, and I heard oral submissions on 22 January 2019.
13. The written submissions of both the Valentino parties and the Agent parties pointed out that the City did not have the power to authorise the clearing of TEC areas. This is, of course, correct. However, the original submission, based on Mr van Lieven's evidence, was that the clearing on the houseside of the fence without authority was relevant to Mr Ardizzone's credibility and his alleged willingness to clear regardless of authorisation. If Mr Ardizzone wrongly believed that he was permitted to clear that area because of his interactions with the City, the evidence would not impact on his credibility nor indicate a willingness to clear without authorisation.
14. The Agent parties also pointed out that Mr Ardizzone knew he did not have a permit to clear vegetation. However, Mr Ardizzone's evidence was plain - after he received the City Notice, 'everything we did on that site was under their supervision ... we basically did everything in compliance with them'.[150] In crossexamination, this exchange occurred:[151]

Mr Ardizzone: [the] City of Gosnells ... developed the vegetation rehabilitation plan that we had to follow under their supervision. The fencing and all this fencing and of the TEC had to be done under their strict guidelines.

Mr Hancy: According to their planning approval, but that's not my question. Do you agree that you have, in fact, cleared into the TEC?

Mr Ardizzone: No, no. It was according to the - it was according to the VRP. It wasn't according to their planning approval. It was according to their vegetation rehabilitation plan.

1. The aerial photographs indicate that the clearing on the houseside of the fence line had been done after the date on which the final fence line had been agreed by the City.[152]
2. The Valentino parties referred to documents that were not in evidence to assert that Mr Ardizzone cleared the land on the houseside of the fence before the vegetation rehabilitation plan had been formally approved by the City. The Valentino parties appeared to be submitting that the clearing was unlawful because it occurred prior to the formal approval of the vegetation rehabilitation plan.[153]
3. In the further hearing on 22 January 2019, no party sought to reopen their case and adduce further evidence.
4. Mr Hancy said, in the further hearing, that perhaps Mr van Lieven had made a mistake. He said that he only relied on the evidence to show that Mr Ardizzone had done some clearing that was not authorised by a clearing permit. Mr Coyle said his position was the same.
5. In my view, the evidence could not support any other contention.
6. It is apparent that, in proposing the original fence line, the City was proposing a fence line that would not encompass all of the remapped TEC area. The original fence line excluded the turnaround area that had been cleared. It appears that, in setting the final fence line, the City was setting a fence line that would exclude even more of the remapped TEC area, including a part on which there remained some vegetation.
7. I accept that Mr van Lieven was an honest witness doing his best to remember events from 2014. However, the vegetation rehabilitation plan causes me to doubt the accuracy of his recollection in relation to the state of the vegetation at the time the final fence line was stipulated. At the time that the final fence line was apparently agreed, the clearing on the houseside of that fence line had not yet occurred.
8. While there was an aspect of Mr Ardizzone's evidence that was unsatisfactory,[154] I accept his evidence generally, and accept his evidence on this point.
9. I find that Mr Ardizzone cleared the vegetation on the exterior of the fence line as a result of the City agreeing to the second fence line and, in his mind, permitting the exterior area to be treated as not part of the TEC area. It is true that the clearing was not authorised by the Department. However, Mr Ardizzone believed he had the necessary authority to do it. This clearing does not support the defendants' contention that Mr Ardizzone intended to clear vegetation irrespective of any relevant approvals that may be required by any authority. On the contrary, Mr Ardizzone engaged with the City in relation to the TEC and the fence line.

1. In 2015, Mr Ardizzone arranged for some sand to be deposited at the rear of the Property. The Valentino parties alleged that the sand had been deposited in the TEC area. Mr Ardizzone denied that.
2. On the evidence, it was not entirely clear whether the sand was deposited in the TEC area itself or in the area outside the TEC area but within the area covered by the vegetation rehabilitation plan.[155] No party sought to establish this by cogent and admissible evidence. However, what evidence there was, being aerial photos, suggested that some of the sand was deposited in the TEC area. Despite the absence of proper evidence, the issue is relevant to Mr Ardizzone's credibility. It will be discussed later, when dealing with his credibility.[156]

Subsequent events affecting the areas able to be used

1. The remapping of the TEC, which occurred after Mr Ardizzone purchased the Property, reduced the area of the TEC. This was, at least in part, as a result of the clearing he did. However, although the TEC area has been reduced, the requirements imposed by the City have limited Mr Ardizzone's use of other areas.
2. In particular, the City required a vegetation rehabilitation plan to be implemented. The area covered by the plan was larger than the TEC area. The plan also required a fence to be erected on the houseside of the TEC area, running from one side of the Property to the other. Gates were to be installed to allow light tender vehicles to enter for fire suppression purposes.[157]
3. There are sandy fire breaks down each side of the TEC area which extend to the boundary of the Property.[158] There is a sandy fire break at the rear of the TEC area, and there is a thin strip of land between the edge of the fire break and the Property boundary.[159]
4. When Mr Ardizzone sought to construct a shed and hardstand, the City imposed a buffer zone on the house side of the fence.
5. As a result of the City's requirements, Mr Ardizzone lost the use of the area between the remapped area of the TEC and the rear boundary of the Property, for all practical purposes. His only way to access the thin strip of land at the Property's rear boundary is by the sandy fire tracks.[160]
6. He has been unable to make full use of the buffer zone. Mr Ardizzone has stored some equipment there.[161] However, he was not permitted to construct a proposed hardstand storage area in the buffer zone.[162]
7. Survey evidence was adduced, by consent, showing the sizes of each of the relevant areas.[163]

1. I have already explained why I do not accept Mr La Rocca's evidence as to the events on 16 January 2013, being the phone call with Mr Colby about the Letter and the email he was sent.
2. In this section, I will explain why I reject Mr La Rocca's evidence in its entirety, unless it is supported by documentation or the evidence of some other witness, or is against his interest.

1. Mr La Rocca's evidence was frequently implausible. His evidence also changed over time.
2. For example, in his witness statement, Mr La Rocca said he saw each of the Colbys sign, initial and date the Contract.[164] In crossexamination, it was put to him that that was not true. He calmly and adamantly maintained he had seen that occur. He was then shown a copy of the Contract and agreed the dates were in his handwriting and had not been written by the Colbys. He said that he wrote the dates because he had witnessed the Colbys' signatures. It was then put to him that he had, in fact, forgotten to witness the signatures. He calmly and adamantly maintained that he had witnessed the signatures. He was then shown an email he had sent to the administrative assistant at CRI shortly after he had given her the Contract, saying he had forgotten to witness the Colbys' signatures.[165] Only then did Mr La Rocca admit that he had not witnessed their signatures.[166]
3. At times, Mr La Rocca demonstrated that he was not a witness seeking to do his best to answer the questions. What began as a fairly routine enquiry to confirm that a real estate agent would be familiar with the General Conditions turned into a tortuous exercise, before he finally agreed that he was familiar with them.[167]
4. Mr La Rocca also gave contradictory answers in relation to whether he had told Ms Colby it was unwise to give keys to a purchaser before settlement.[168]
5. Earlier, I referred to Mr La Rocca's evidence about his conversation with Mr Ardizzone on 24 January 2013. Mr La Rocca testified that he had not told Mr Ardizzone about the Letter in this conversation because he told Mr Ardizzone about issues experienced by the owner of a nearby property, 37 Victoria Road, in relation to wetlands and trees, and had told Mr Ardizzone he should get advice. It is not credible that, instead of telling Mr Ardizzone about the issues that were raised in the Letter about the Property (which did not contain wetlands), Mr La Rocca would tell Mr Ardizzone about issues experienced by the owner of some other property in relation to wetlands and trees. It would make no sense at all.
6. I have earlier set out Mr La Rocca's evolving evidence about the 16 January conversation and his untruthful evidence of never receiving the 16 January email. I also set out my finding that he falsely denied having known about the TEC in his conversation with Mr Ardizzone on 25 February 2014.
7. Other examples were provided by Mr Cobby, counsel for Mr Ardizzone, in his closing submissions.[169]

1. There was also evidence that Mr La Rocca was not accurate in his communications with the parties.
2. For example, Mr La Rocca emailed Mr Ardizzone on 29 November 2012, after Mr Ardizzone had asked if there had been any offers on the Property. Mr La Rocca wrote back 'I have received many inquiries'.[170] In crossexamination, it emerged that 'many inquiries' meant that there had been some 'hits' on the website. Mr La Rocca agreed he could not tell who had looked at the Property on the website or whether the same person had looked multiple times. However, he did not accept that his statement 'I have received many inquiries' would suggest that a number of people had asked him about the Property personally.[171]
3. Other examples were provided by Mr Cobby in his closing submissions.[172]

1. One aspect of Mr Ardizzone's evidence that was unsatisfactory was his evidence in relation to the depositing of sand in 2015.
2. As noted earlier,[173] although the evidence adduced was deficient, the aerial photos suggested that some of the sand was deposited in the TEC area.
3. When confronted about this in the witness box, Mr Ardizzone asserted that none of the sand had been deposited in the TEC area. His answers were defensive and unconvincing. Mr Ardizzone's evidence was that he ensured that the contractor deposited the sand without traversing the TEC area and without depositing any of the sand in the TEC area. However, he was unable to explain how he communicated to the contractor where the TEC area was.[174] I accept the submission of the defendants that this was not credible.
4. However, I do not consider Mr Ardizzone's evidence on this issue damaged his credibility more broadly, for the following reasons.
5. First, I do not consider that Mr Ardizzone deposited the sand in blatant defiance of the restrictions.
6. While depositing sand may have constituted 'clearing' within the meaning of the legislation,[175] it was not clearing in the ordinary sense of the word.
7. The sand was deposited at the rear of the Property. The TEC area was not marked on the ground. Even if some of the sand was deposited in the TEC area, most was deposited outside that area.[176] If Mr Ardizzone knew that depositing sand was 'clearing', and intended to act in blatant disregard of the restrictions, it might have been expected that most of the sand, if not all of it, would have been deposited in the TEC area. It seems more likely that, if he knew that depositing sand was 'clearing', and if some sand intruded into the TEC area, it was because he took insufficient care to identify the TEC area and to ensure that no sand was put in that area, rather than because he deliberately disregarded clearing restrictions.
8. Second, this evidence and the evidence as a whole did not lead me to conclude that Mr Ardizzone had a cavalier attitude to regulations or the environment and intended to clear the vegetation irrespective of any relevant approvals that may be required by any authority. I will say more about this later.
9. Third, the content of his evidence was, with the exception of the sand deposit, internally credible and consistent.[177] In addition, some parts of his evidence were supported by Ms Flight or by documentation.[178]
10. Fourth, it would have been clear to Mr Ardizzone that the defendants sought to establish that he was entirely unconcerned with restrictions.
11. In my view, it is more likely that, confronted by the evidence that suggested that the sand might have been deposited in the TEC area, he was unwilling to concede the point for fear it would be taken to wrongly show that he had a cavalier attitude to restrictions and that he was willing to deliberately clear vegetation unlawfully.

1. The defendants submitted that other aspects of Mr Ardizzone's evidence were unsatisfactory. I do not accept that.
2. The defendants submitted that Mr Ardizzone's evidence that he could not say whether vegetation shown in photographs of the Property was native vegetation was unconvincing. His evidence was that he was not sure that the vegetation was native vegetation. He said he was not an expert in native vegetation. He was asked if he accepted that the vegetation in the photographs looked like it grew as part of a natural environment, and was some Australian native species rather than having been planted there by someone. He said 'maybe'.[179] I did not find his evidence to be surprising, let alone unconvincing.
3. The Valentino parties also referred to Mr Ardizzone's evidence that the first meeting on the Property in 2014 was with Jordan McDermott of the City, and occurred around a week after his receipt of the City Notice around 18 February 2014. However, Mr van Lieven's evidence was that he had met with Mr Ardizzone in early February 2014, before the City Notice was sent. Mr Ardizzone was adamant that the first meeting was not with Mr van Lieven. The Valentino parties submitted that his adamance showed a 'troublesome attitude'.[180] Mr Ardizzone was clearly wrong about the first meeting. However, I did not find that to be troubling. Mr Ardizzone had nothing to gain by denying first meeting with Mr van Lieven. In my view, he simply did not remember it.
4. The Valentino parties also submitted that there was a 'slight shift' in Mr Ardizzone's evidence as to how often his friend, Mr Vucinic, helped him with some clearing of the vegetation on the Property in 2013. Mr Coyle submitted that this was relevant to the assessment of Mr Ardizzone's reliability.[181] In his witness statement, Mr Ardizzone said it was 'often'. In his oral evidence, he said he could not remember how many times it was, but it was maybe two or three.[182] In my view, this is of no significance in my assessment of Mr Ardizzone's evidence. Indeed, it might be said that the very fact that Mr Coyle sought to rely on a matter of such insignificance indicates the paucity of examples of troubling or unreliable evidence.
5. The defendants also submitted that Mr Ardizzone had not been straightforward with the banks when seeking a loan to purchase the Property. They referred to the application to NAB which stated that Mr Ardizzone's financial objective for purchasing the house was to purchase a residential home rather than for a commercial purpose. They referred to his failure to inform NAB or CBA of his intention to use the property to conduct a business. Mr Coyle frankly conceded that 'there's no great moment in that'.[183] In my view, this is insufficient to cast a shadow over Mr Ardizzone's character, of itself or in combination with the totality of criticisms, and is not relevant to the matters in issue.
6. I have dealt with other criticisms of Mr Ardizzone's credibility in the course of the narrative of events.[184]
7. I accept that Mr Ardizzone appeared, at times, to be frustrated with the questions he was being asked, particularly when he felt them to be repetitive. At times, he also had a defensive manner. He was insistent that the first meeting had not been with Mr van Lieven. However, these matters did not cause me to doubt his overall honesty. As I have said, the content of his evidence was, with the exception of the sand deposit, internally credible and consistent. In addition, some parts of his evidence were supported by Ms Flight or by documentation. Finally, Mr Ardizzone's crossexamination began shortly after lunch on the second day of hearing and continued until just before lunch on the fourth day of hearing. Without implying any criticism of counsel, the crossexamination involved a degree of repetition. His demeanour must be viewed in that context.

1. Having considered all of the evidence, I do not accept Mr Ardizzone's evidence in relation to the depositing of the sand in 2015. However, my rejection of this part of Mr Ardizzone's evidence does not cause me to reject his evidence as a whole.
2. Further, as I have foreshadowed, I find that Mr Ardizzone did not have a cavalier attitude to regulations or the environment and did not intend to clear the vegetation irrespective of any relevant approvals that may be required by any authority.
3. It is true that, had he made enquires, he could have discovered the existence of the TEC and the obligations associated with it. He could have discovered that the clearing of native vegetation, even if not a TEC, was regulated. However, I do not accept that his plan was to clear first and sort out issues later. If that had been his plan, he would have cleared all of the native vegetation immediately after taking possession of the Property. He did not.
4. Further, there is nothing in the evidence to suggest that Mr Ardizzone, or a reasonable potential purchaser, would have had any reason to make enquiries of the Department or the City beyond the enquiries that he made.[185] Mr Ardizzone was not intending to use the Property in a dramatic or unusual way. He did not intend to build a skyscraper or a nuclear power plant. He simply wanted a large piece of land on which he could, among other things, store his large rental equipment.
5. In relation to the sand deposit, it is possible that he did deposit sand in the TEC area. However, even if I should have made a positive finding that he did this, I would not be satisfied that this was a deliberate breach of the restrictions, for the reasons I have given. In all other respects, I accept Mr Ardizzone's evidence.

1. The Valentino parties criticised Ms Flight's evidence, but did not suggest that any relevant evidence she gave should be rejected.[186]
2. In those circumstances, it is unnecessary to embark upon a detailed analysis of her evidence. In my view, it is sufficient to simply record that, while Ms Flight was defensive in her manner, I did not form the view that she was not trying to be truthful.

1. I have already noted my finding that Mr Colby did not disclose the Letter to Mr Ardizzone, or arrange for it to be disclosed, prior to the 16 January conversation because he understood that the Letter might have an impact upon the sale of the Property, and he did not want to disclose the Letter to Mr Ardizzone before he had spoken to Mr La Rocca and knew what the impact might be.
2. Further, some other aspects of his evidence were concerning. In particular, his evidence in relation to the letter of complaint he received from Mr Ardizzone was, on the whole, unconvincing.
3. As noted earlier, attached to the letter of complaint was Mr Ardizzone's letter to the Ombudsman.[187] I will repeat what Mr Ardizzone wrote in the third paragraph of that letter:

Since being informed of the TEC in February 2014, I've approached the real estate agent, Walter La Rocca from CRI Property Solutions, who denied all knowledge of the TEC, and previous landowner Paula Colby who said she would like to be careful with her words although she knew there was something going on with the trees down the back.

1. Mr Colby was asked about the reference to Mr La Rocca denying that he knew anything about a TEC. Mr Colby said he would have said to himself that that was a 'load of rubbish' because Mr La Rocca did know about it. However, Mr Colby claimed that he did not respond to Mr Ardizzone's letter because he continued to assume that Mr La Rocca had told Mr Ardizzone about the Letter from the Department.[188] It is very difficult to see how Mr Colby could have continued to assume that after being told that Mr La Rocca had denied knowing anything about a TEC. I do not accept Mr Colby's evidence on this point.
2. Further, Mr Colby said that his initial reaction to Mr Ardizzone's complaint was that Mr Ardizzone was in dispute with the City. He said that he thought that Mr Ardizzone was 'quite justly ... extremely annoyed' with the City because he had not been told about the TEC. Mr Colby said that this dispute with the City was none of his business.[189] It is again very difficult to see how Mr Colby could have thought it was none of his business when, on his evidence, he believed Mr Ardizzone was aware of the TEC because he had been told about it by Mr La Rocca on Mr Colby's instructions. I do not accept Mr Colby's evidence on this point.
3. In addition, Mr Colby said he did not discuss with his wife Mr Ardizzone's allegation that she had told Mr Ardizzone that 'she would like to be careful with her words although she knew there was something going on with the trees down the back'.[190] It is difficult to conceive that Mr Colby would not have spoken to his wife about this if indeed he continued to assume that Mr Ardizzone had been told about the TEC by Mr La Rocca prior to the settlement. I do not accept his evidence on this point.
4. Further, Mr Colby said he drafted a response to Mr Ardizzone but did not send it. The draft was not discovered, and only emerged during the trial.[191]
5. In the draft, Mr Colby wrote:

I would like to point out that the sale of the [Property] was indeed handled by Mr La Rocca ... who was provided with any information received by [Valentino] involving the MaddingtonKenwick strategic plan prior to the settlement date.

My view is that it is quite absurd and unacceptable that the City of Gosnells was unable to provide the results of any ecological studies to you, as they commissioned all the reports required to rezone the area from rural to industrial! In meetings that we attended ..., there was much discussion as to how various landowners would be compensated for wetlands, low lying areas, new roads etc, all of which information would be available from the City of Gosnells.

My understanding is that you have all the information that we received on purchasing the property several years up until the time it was sold. It is also none of our business as to what you do with the property once you have purchased it.

1. Mr Coyle referred to the statement in the draft letter that Mr La Rocca had been provided with 'any information received by [Valentino] involving the MaddingtonKenwick strategic plan prior to the settlement date'. He said:[192]

So that's a bit vague but that arguably - it precisely could well be a reference to the [L]etter. And after all, as I recall it, the only evidence of things provided by the Colbys to Mr La Rocca was [Mr Colby's draft] letter. So imprecise as it is, what it probably means - in terms of the third paragraph the gist of that is he's having a go at the City of Gosnells who he says were unable to provide results of ecological studies, etcetera.

1. I do not accept this submission. The Letter had nothing to do with 'the MaddingtonKenwick strategic plan'. Mr La Rocca did, however, give Mr Ardizzone, among other things, a letter from the MKSEA Precinct 1 Landowners Association to Irvine Properties Pty Ltd dated 15 October 2012 (Landowners Letter).[193] The Landowners Letter discussed planning issues and developments in relation to the MKSEA (which, as noted, is the acronym for the MaddingtonKenwick Strategic Employment Area).
2. Remarkably, the draft does not refer to Mr Colby's knowledge of the TEC or indeed even mention a TEC. Although the draft was not sent, the very fact that Mr Colby drafted it does not support his evidence that he continued to assume Mr La Rocca had given Mr Ardizzone the Letter. On the contrary, the draft appears to be very carefully crafted so as to avoid making any admission that he knew about the TEC.
3. While there were these unsatisfactory aspects of Mr Colby's evidence, I prefer his evidence to that of Mr La Rocca. In other respects, Mr Colby's evidence was credible and reliable. By contrast, Mr La Rocca's evidence was not.

1. There were some differences in the evidence of Mr Ardizzone and Ms Colby. With one possible exception, none were relevant to the issues in the dispute. To the extent that those other differences could potentially impact on credibility, I prefer Mr Ardizzone's evidence to Ms Colby's.
2. In his submissions, Mr Ardizzone pointed out a number of examples of Ms Colby's evidence that were problematic,[194] which I accept. The first example related to two telephone calls that Ms Colby claimed she did not remember, but which were of a nature that it could be expected that she would remember. In my view, this example is sufficient to cause me to be reluctant to accept Ms Colby's evidence. To illustrate this, I will refer to the evidence relating to the second of the two calls, being the call during which Mr Ardizzone asked Ms Colby if she was aware of the TEC.
3. Mr Ardizzone's evidence was that, after he received the City Notice, he rang Ms Colby to ask if she was aware of the TEC. Mr Ardizzone made a note of that conversation at the time.[195] He said that Ms Colby said she did not recall getting a letter about a TEC but was aware that something was going on. Towards the end of the conversation he said he asked her if she made a habit of nondisclosure. He claims she replied 'I am going to choose my words carefully'.[196]
4. In crossexamination, Ms Colby was asked if she remembered a telephone conversation in which Mr Ardizzone asked her whether she made a habit of nondisclosure. She said 'No. I don't recall that at all'.[197] She was asked if she remembered saying to Mr Ardizzone over the telephone she was going to choose her words carefully. She again said 'No. I don't recall that at all'.[198] She was asked if she remembered Mr Ardizzone asking her 'Why would you need to choose your words carefully'. Again, she said she did not recall that. Ms Colby was asked if she denied the telephone conversation took place. She said she did not deny it took place but that she could not recall it.[199]
5. It is not credible that a person would not remember an exchange of this type.
6. This was one example of many instances in which Ms Colby claimed not to remember something. The extent and nature of her alleged failure of memory was not explicable by the passage of time. Overall, Ms Colby claimed to have almost no recollection of any of the events potentially damaging to the Valentino parties' case.
7. The only difference between Mr Ardizzone and Ms Colby that was arguably relevant to the issues in dispute was her evidence that she had heard a man telling Mr Ardizzone that he had had no problems clearing on his block. The Valentino parties sought to suggest that this was Mr Ardizzone's friend Mr Vucinic.[200]
8. Ms Colby's evidence as to this was extremely vague.[201] Ms Colby attended the Property on perhaps two occasions when Mr Ardizzone was there. She said that, on one of the occasions, another man was there with Mr Ardizzone.
9. Mr Ardizzone was adamant that there had not been another man there (other than Mr La Rocca). Mr La Rocca said the same. Ms Colby said the man was shorter than Mr Ardizzone. Mr La Rocca said Mr Vucinic is about six foot five.[202] Mr Ardizzone is of average height.
10. I do not accept Ms Colby's evidence about this, or anything else where it conflicted with Mr Ardizzone's evidence.

What did Mr Ardizzone know and what should he have known?

1. The pleadings raised numerous issues as to what Mr Ardizzone knew or ought to have known about the TEC, native vegetation and clearing regulations. Some issues had fallen away by the end of the trial, although two remained. However, even some of the issues that fell away are potentially relevant to other issues. Accordingly, in this section I will deal with what Mr Ardizzone was told, what he knew, and what he ought to have known.

Was Mr Ardizzone told by Mr La Rocca that he would need a permit to clear?[203]

1. Mr La Rocca said that he told Mr Ardizzone on numerous occasions that, in effect, he would need approvals before he cleared any trees.
2. He said that he told Mr Ardizzone, before Mr Ardizzone signed the offer, that he could include a condition in the contract which would allow him to investigate the clearing process for trees.[204]
3. Mr La Rocca said that, during the first inspection, Mr Ardizzone said that he was going to clear the trees. Mr La Rocca said that he told Mr Ardizzone that he would need the appropriate approvals to do that and that he should get independent advice.[205]
4. As I have already mentioned, Mr La Rocca also said that he told Mr Ardizzone during a telephone call that he had been told by the owner of 37 Victoria Road that he (the owner) had issues with potential wetlands and trees on his property. Mr La Rocca said that he told Mr Ardizzone that he should investigate those matters further. He claimed that Mr Ardizzone replied that he was going to clear the trees immediately and then deal with any issues after the fact.[206]
5. Mr Ardizzone denied ever talking to Mr La Rocca about clearing trees.[207]
6. As explained earlier,[208] I do not find that Mr Ardizzone was unconcerned about regulations or that he deliberately breached restrictions or intended to do so. Further, I reject Mr La Rocca's evidence in its entirety, unless it is supported by documentation or the evidence of some other witness, or is against his interest. I do not consider that the fact that Mr Ardizzone engaged in unlawful clearing in 2013 before he knew about the TEC and perhaps deposited sand in the TEC area in 2015 corroborates Mr La Rocca's evidence to the point where I could accept it.
7. While I do not accept Mr Ardizzone's evidence entirely,[209] I accept his evidence on this point.
8. I find that none of the conversations alleged by Mr La Rocca occurred.

Was Mr Ardizzone told by Mr Vucinic about clearing problems?

1. I have previously referred to Mr Vucinic, a friend of Mr Ardizzone.
2. Mr Vucinic lived at 95 Victoria Road, which is near to the Property. Mr Vucinic was not called as a witness by any party.
3. The Agent parties sought to adduce evidence to show that the City had sent a directions notice in July 2012 (July Notice) to the owner of 95 Victoria Road (said to be a company owned by Mr Vucinic). The July Notice alleged there had been substantial clearing on the property without development approval, and advised that a development application needed to be submitted. The July Notice also advised that the property was within a designated conservation area and, therefore, input would be required from the Department before approval could be given. The Agent parties also sought to rely on email exchanges between Mr Vucinic's wife (said to be a codirector of the company) and the City between July 2012 and September 2012 in relation to the July Notice and the development of a revegetation plan. I will refer to these documents collectively as 'the Vucinic documents'.
4. The Agent parties sought to rely on the Vucinic documents to establish that Mr Ardizzone knew that he would not be free to clear his land without approvals or knew that, if he cleared without such approvals, he would not be prosecuted or fined. The Agent parties argued that Mr Vucinic would have told Mr Ardizzone about his own issues with the City. Mr Ardizzone denied this.[210]
5. Mr Ardizzone objected to the Vucinic documents on the grounds of relevance. I accepted the documents into evidence on a provisional basis.[211] The Agent parties did not dispute that, if they were unable to prove that Mr Vucinic had told Mr Ardizzone about his issues with the City, the Vucinic documents would be irrelevant.[212]
6. The defendants argued that I could infer that Mr Vucinic had told Mr Ardizzone about his issues with the City from the following undisputed facts:[213]

(1) Mr Vucinic is a friend of Mr Ardizzone. Mr Vucinic's wife is a friend of Ms Flight.

(2) 95 Victoria Road was only 'doors away'[214] from the Property.

(3) Mr Vucinic did the clearing on 95 Victoria Road in 2012, and before Mr Ardizzone became interested in the Property.

(4) Mr Vucinic had some involvement in Mr Ardizzone's purchase of the Property:

(a) Mr Ardizzone found out that the Property had been offered for sale from Mr Vucinic.

(b) When Mr Ardizzone was having trouble getting finance on the terms he wanted, he asked Mr Vucinic who Mr Vucinic used. Mr Vucinic used a finance broker, Mr Coombes. Mr Coombes contacted Mr Ardizzone after being told of his situation by Mr Vucinic. Ultimately, Mr Coombes was able to arrange finance for Mr Ardizzone on the desired terms.

(5) Prior to receiving the City Notice, Mr Ardizzone cleared vegetation on the Property without having obtained any approval.

(6) Mr Vucinic helped Mr Ardizzone and Ms Flight with some clearing of the vegetation on the Property. In his witness statement, Mr Ardizzone said this happened 'often'. In his oral evidence, he said he could not remember how many times it was, but it was maybe two or three.[215]

1. The Vucinic documents show that the City took action against Mr Vucinic for clearing his land. The Agent parties argued that the Vucinic documents make it more likely that Mr Vucinic told Mr Ardizzone about getting into trouble.[216]
2. In addition, the Valentino parties asserted 'It appears that to an extent Mr Vucinic and Mr Ardizzone might have cleared their properties concurrently'.[217] In support of this rather halfhearted submission, the Valentino parties cited various aerial photos showing changes in the properties over time. Even if I was to accept this submission, which I do not,[218] it would not support the drawing of the inference sought by the defendants.
3. The defendants further relied on the disputed evidence of Mr La Rocca that he had told Mr Ardizzone that he could include a clause in the contract that would allow him to make inquires as to what approvals would be needed. Mr La Rocca claimed that Mr Ardizzone said that he did not need such a clause because he had received advice from a friend who owns a property on Victoria Road. To the extent that this was put to Mr Ardizzone, he denied it.[219] As I have explained, I do not accept Mr La Rocca's evidence.

1. The Valentino parties also allege that I should draw a Jones v Dunkel[220] inference in light of Mr Ardizzone's failure to call Mr Vucinic as a witness. As I will explain, I do not accept this. In any event, such an inference would not assist the defendants.
2. First, I do not accept that there was an expectation[221] that Mr Vucinic would be called by Mr Ardizzone, rather than by the defendants.
3. Mr Ardizzone and Mr Vucinic are friends. However, there is nothing to suggest Mr Vucinic is in Mr Ardizzone's 'camp'. Mr La Rocca met with Mr Vucinic at his home to discuss doing a valuation for him in about March 2013 and carried out an appraisal (he said for Mrs Vucinic) in about April 2013.[222] There is nothing to suggest that Mr Vucinic would not have given evidence had he been called by the defendants.
4. Further, the only apparent reason for calling Mr Vucinic would be in relation to Mr La Rocca's evidence that Mr Ardizzone said that he did not need a due diligence clause because he had received advice from a friend who owns a property on Victoria Road. The defendants' pleading did not allege that Mr Vucinic had told Mr Ardizzone anything.[223] There is no obvious reason why, in those circumstances, Mr Ardizzone would seek to adduce evidence from him.
5. By contrast, it seems that the allegation was considered to be of great importance to the Valentino parties. Mr Coyle submitted 'we would say it's a very apt case for the Jones v Dunkel inference because the defence, if accepted, is a powerful defence. It would mean the end of the misleading or deceptive claim'.[224] When I asked Mr Coyle why, in that case, the defendants had not called Mr Vucinic, Mr Coyle responded 'Well, we say that we don't need to and that the evidence about friendship is enough for your Honour to find that - and given that all the communications were between him and Mr Ardizzone, that the expectation in the usual sense would be that it would be Mr Ardizzone who would call him on those matters'.[225]
6. Second, even if I concluded there was an expectation that Mr Vucinic would be called by Mr Ardizzone, this would only permit an inference to be drawn that his evidence would not have assisted Mr Ardizzone. This would allow me to more readily draw any inference fairly to be drawn from other evidence. But it would not fill gaps in the evidence or convert conjecture and suspicion into inference.[226]

1. Taking into account all of the evidence, I am not satisfied that I can infer that Mr Vucinic told Mr Ardizzone that he had had trouble clearing his land. The facts relied upon do no more than give rise to conjecture. Even if I considered that a Jones v Dunkel inference should be drawn, it could not fill the evidentiary gap.
2. In any event, I accept Mr Ardizzone's denial that Mr Vucinic did not tell Mr Ardizzone that he had had trouble clearing his land.
3. The Vucinic documents are therefore not admissible.

Did Mr Ardizzone know, or should he have known, that there was a TEC on the Property?

1. The Agent parties initially pleaded that Mr Ardizzone knew or ought to have known that there was a reasonable prospect that there was a TEC or wetlands on the Property.[227] This pleading gave rise to Issue 16 in the first list of issues. The pleading was based on an allegation that Mr La Rocca had given Mr Ardizzone a document titled 'Site Characteristics and Literature Review'.[228] Later, the Agent parties withdrew the allegation that Mr La Rocca had given Mr Ardizzone that document, and filed an amended defence deleting the pleading that Mr Ardizzone knew or ought to have known that there was a reasonable prospect that there was a TEC or wetlands on the Property.[229] Issue 16 was struck out in the final list of issues.
2. The Agent parties also initially pleaded that Mr Ardizzone knew or ought to have known that there was a TEC on the Property.[230] Unlike Issue 16, this pleading did not include the words 'there was a reasonable prospect'. This pleading gave rise to Issue 17 in the first list of issues. The pleading was based on an allegation that Mr Ardizzone cleared the Property without approval in 2013.[231] Mr Hancy properly conceded that that allegation does not support an allegation that Mr Ardizzone knew anything prior to settlement.[232] Later, the Agent parties filed an amended defence deleting the pleading that Mr Ardizzone knew or ought to have known that there was a TEC on the Property.[233] Issue 17 was struck out in the final list of issues.
3. Further, by the end of the trial, the defendants accepted that there was no evidence that Mr Ardizzone knew there was, or might be, a TEC on the Property.[234]
4. Nevertheless, the Agent parties submitted that, whether Mr Ardizzone should have known remained relevant in relation to whether he contributed to his loss and whether he was in fact misled by the defendants.[235]
5. I reject the proposition that Mr Ardizzone should have known there was a TEC on the Property. As set out elsewhere,[236] there is nothing in the evidence to suggest that Mr Ardizzone, or a reasonable person in his position, would have had any reason to make enquiries of the Department or the City beyond the enquiries that he made.

Did Mr Ardizzone know, or should he have known, about restrictions on clearing vegetation?

1. The Agent parties initially pleaded in pars 33.1 and 33.2 of their defence that Mr Ardizzone 'knew or ought to have known that he required approvals to clear trees on the Property and that there were restrictions on his use of the Property and his ability to clear trees on the Property'. This pleading became Issue 19 in the first list of issues. The pleading was based on allegations that Mr La Rocca told Mr Ardizzone, in effect, that he would need clearing approval, and that Mr La Rocca gave Mr Ardizzone particular documents. Later, the Agent parties filed an amended defence deleting par 33.
2. Despite this, Issue 19 remained in the final list of issues. The defendants did not identify its relevance, other than as to credibility.[237] Nevertheless, I will address the issue in the context of its possible relevance.

Did Mr Ardizzone know about restrictions on clearing native vegetation?

1. I have earlier found that Mr La Rocca did not tell Mr Ardizzone he required permits or approvals to clear trees or develop the Property.
2. I have earlier explained that I accept Mr Ardizzone's evidence, apart from the sand deposit evidence. He denied knowing there were restrictions on clearing native vegetation,[238] and I accept that evidence.
3. I find that Mr Ardizzone did not know that he required approvals or permits to clear native vegetation.

1. It is not clear why, even if Mr Ardizzone ought to have known that he needed a permit to clear native vegetation, this would be relevant.
2. First, it cannot be relevant to his credibility.
3. Second, Mr Ardizzone's causes of action and claimed loss relate to the existence of the TEC and its effect. His causes of action and claimed loss do not relate to native vegetation at all, other than the fact that the vegetation inside the TEC area obviously included native vegetation.
4. Different, and substantially more stringent, criteria apply to determining applications for permits to clear vegetation in a TEC area. In evaluating the restrictions that apply to the TEC area, the restrictions that apply to native vegetation are not relevant. There was no suggestion that permission might be granted to clear vegetation under the TEC regime but then refused because the vegetation was native. Further, the expert evidence was that, if vegetation was not in a TEC area, it was likely a clearing permit would have been granted, if a permit was indeed required.[239]
5. Third, as I explain later,[240] a hypothetical purchaser who knew there were restrictions on clearing native vegetation would still reasonably expect to be told about a TEC on the Property.
6. Fourth, again as explained later,[241] a hypothetical purchaser would disregard the possibility that a permit would not be granted to clear native vegetation that was not in a TEC area in the assessment of value, on the basis it was so remote as to not warrant any allowance.

What would have happened if Mr Ardizzone had been told about the Letter?

1. In pars 32.3 and 33.5 of the Agents' PreTrial Defence, the Agent parties pleaded that Mr Ardizzone would not have acted differently if he had been informed about the Letter or the existence of the TEC prior to the settlement date. This gave rise to Issue 20.
2. In the Agents' PostTrial Defence, some of the matters relied upon for this allegation were deleted.[242] Although not entirely clear, it seems that the allegation was based on a document allegedly provided to Mr Ardizzone, the alleged conversations with Mr La Rocca, and the unauthorised clearing done by Mr Ardizzone prior to him receiving the City Notice.
3. Paragraphs 31 and 33 of the Agents' PreTrial Defence, which included the subparagraphs which gave rise to Issue 20, were said to also give rise to Issue 24. Issue 24 was whether, if informed about the existence of the TEC on the Property or the Letter, Mr Ardizzone would have, among other things, terminated or rescinded the Contract.
4. In relation to Issue 20, the Agent parties submitted that Mr Ardizzone was not concerned about constraints. They submitted that, even after Mr Ardizzone was aware of the constraints imposed by the City, he continued to carry out clearing work.[243] The Agent parties also submitted that Mr Ardizzone was 'well motivated to buy the land to give him a pathway out of his acrimonious business relationship, a place to live and to carry on a business, and a place near his friend Mr Vucinic'.[244]
5. The Valentino parties said Issue 20 did not really matter because of the evidence that the Colbys would have agreed to terminate the Contract if Mr Ardizzone had asked.[245]
6. I asked Mr Hancy if Issue 24 remained in light of that evidence. Mr Hancy conceded that, if I accepted that evidence, it would 'take all the wind out of the sails of all of these arguments'.[246]
7. Issue 24 was struck out of the final list of issues. Issue 20 remained.

1. Mr Ardizzone said that, if he had known about the TEC on the Property, he would not have purchased it. He said he wanted to use all of the land for his business. He said that, if he had known that there were restrictions on the use of the Property that could not be easily fixed, apart from the zoning requirements, he would not have bought it.[247]
2. There is obviously a selfserving element to this evidence and particular caution must be exercised before accepting it. However, as I will explain, in light of the evidence as a whole, I do accept it.
3. Mr Ardizzone had stopped removing vegetation long before he received the City Notice.[248] There is no evidence that the clearing he did outside of the TEC area was unlawful. The City was only concerned with the clearing within the TEC area.[249]
4. If some sand was deposited in the TEC area after the City Notice, this was not as a result of blatant defiance of the restrictions. As explained earlier,[250] even if Mr Ardizzone knew that depositing sand could constitute 'clearing' of vegetation, it is far more likely that, if some sand intruded into the TEC area, it was because insufficient care was taken to identify the TEC area and to ensure that no sand was put in that area.
5. When Mr Ardizzone finally received a copy of the Letter, his reaction was to ring various authorities, including the City and the Department, to find out, among other things, what it meant for him. He complained to the Ombudsman, Valentino and Mr La Rocca.
6. In addition, I do not accept that Mr Ardizzone was so highly motivated to buy the Property that he would have gone ahead with the purchase if he had known about the TEC.
7. His evidence was that he wanted a lot of land for business, as well as for a home. His business involved the storage of very large pieces of machinery. The TEC area took up a considerable proportion of the overall land.
8. There was no evidence to suggest that there were no other properties on the market that would have been suitable. It is inherently unlikely that there would not have been.
9. Mr Ardizzone did want to leave the business relationship he was in at the time he bought the Property. However, I do not accept that his desire to do so was so strong that he would buy a property with such a large part of it unavailable for use.
10. Further, Mr Ardizzone's evidence is inherently credible. In my view, it is objectively likely that disclosure of the Letter would have substantially discouraged a purchaser. This view is supported by Mr Colby's decision not to disclose it until he knew if it would impact the sale and Mr La Rocca's decision not to disclose it because he knew it was likely it would.
11. Mr Ardizzone's evidence is also consistent with his reaction to finding out about the TEC.
12. For these reasons, I find that, if Mr Ardizzone had known about the TEC on the Property, he would have terminated or rescinded the Contract.
13. The Colbys' evidence was that, if Mr Ardizzone had asked to terminate the Contract, they would have agreed and would have refunded his deposit.[251]

1. I find that, if Mr Ardizzone had known about the TEC on the Property, the Contract would have been terminated and his deposit refunded.

1. The Valentino parties pleaded, in effect, that, even if there had not been a TEC on the Property, Mr Ardizzone would not have been able to lawfully clear the native vegetation in the TEC area on the Property because s 51C of the EP Act prohibited the clearing of native vegetation.[252] This pleading gave rise to Issue 10. Issue 10 involves consideration of whether Mr Ardizzone would have required a permit to clear the vegetation in the TEC area if it had not been identified as a TEC and, if so, whether he would have obtained one.
2. The Valentino parties also denied Mr Ardizzone's pleading that, by reason of the TEC, it was unlikely that the TEC area would be available for use after the settlement date.[253] This gave rise to Issue 11. Issue 11 involves consideration of the actual obstacles to Mr Ardizzone's use of the TEC area. The obstacles were not limited to whether it was likely a permit would have been granted to clear the vegetation in the TEC area. The obstacles also included the impact of the City's conduct.
3. In this section, I will deal with Issue 10 and that part of Issue 11 that raises the question of whether it was likely a permit would have been granted to clear the vegetation in the TEC area, given it had been identified as a TEC (Permit Issues). I will answer the balance of Issue 11 in a separate section.[254]

1. To address the Permit Issues, Mr Ardizzone sought an opinion from an environmental expert, Mr Grein. Mr Grein's opinion was that, if the vegetation had not been identified as a TEC, it was likely that a clearing permit would have been granted (if indeed one was required).[255] In his opinion, given the vegetation had been identified as a TEC, it was unlikely that a clearing permit would have been granted.[256]

Likelihood of obtaining a clearing permit if it was not a TEC

1. I have previously set out the regulatory framework that governs the clearing of native vegetation.[257] Native vegetation cannot be cleared without a clearing permit unless one of two types of exemption applies. One type of exemption is not relevant. The other is the 'NonESA exemptions'.
2. If native vegetation is not in a TEC area or some other type of ESA, the 'NonESA exemptions' apply. The native vegetation on the Property, 'Guildford Vegetation Complex', has not been declared to be an ESA.[258] Accordingly, if the vegetation was not a TEC, the 'NonESA exemptions' would apply.
3. The 'NonESA exemptions' exempt certain activities (including clearing land to construct a building) from requiring a permit if the total area to be cleared does not exceed one hectare.[259] The TEC area on the Property was less than 7,000 sqm, which is less than a hectare.[260]
4. Even if the proposed clearing did not fall within the exempt activities, Mr Grein considered that a clearing permit was likely to have been granted.
5. Mr Grein discussed the relevant clearing principle that may apply to native vegetation that is not in a TEC area or some other type of ESA. This is clearing principle 1(e).[261] It covers vegetation that is 'significant as a remnant of native vegetation in an area that has been extensively cleared'. The clearing principle does not provide guidance as to what 'significant as a remnant' means.
6. Mr Grein said that the guide that was available to the relevant department (which I refer to as 'DWER'[262]) as at the settlement date was 'A Guide to Clearing Permit (DoE 2005b)', published in June 2005 (2005 Guide).[263] He said the 2005 Guide was less prescriptive than the guide which replaced it in December 2014 (December 2014 Guide).[264]
7. Mr Grein thought it unlikely, based on the 2005 Guide, that DWER would have assessed the clearing of native vegetation in the TEC area, if it had not been identified as a TEC, to be at variance with clearing principle 1(e) (or any other clearing principle). He further considered that, even if DWER had assessed any such clearing to be at variance with a clearing principle, it was likely that a permit would still have been granted. This was based on the total area to be cleared and the percentage that that vegetation represented of the Guildford Vegetation Complex remaining on the SCP and the MKSEA. Mr Grein also provided several examples of decisions to approve clearing permits from the period around the settlement date involving the clearing of similarly sized areas as the TEC area on the Property, including sites in the vicinity of the Property, where the clearing was at variance with one or more of the clearing principles.[265]
8. Although the Permit Issues were raised by Valentino's Defence, the Valentino parties did not ask their expert, Dr van der Moezel, to report on the likelihood that a permit would or would not have been granted. All Dr van der Moezel was relevantly asked to address was whether the native vegetation in the TEC area would fall within clearing principle 1(e), if it had not been identified as a TEC. His opinion was that it would fall within that clearing principle. Dr van der Moezel formed that view because, although the December 2014 Guide had not yet been published, he considered it likely that DWER would have been using similar standards in late 2012 and early 2013.[266]
9. Mr Grein disagreed. He said that DWER would have considered the 2005 Guide.[267]
10. In late 2012 and early 2013, the 2005 Guide had not been replaced or superseded. There is no evidence that any other standards would have been applied by DWER. Dr van der Moezel did not provide any basis for his view that he considered it likely that DWER would have been using standards similar to the December 2014 Guide in late 2012 and early 2013. It seems to have been speculation. However, it is unnecessary to consider this further, in light of the joint report written by Dr van der Moezel and Mr Grein.
11. Although Dr van der Moezel had not been asked to express his opinion on the Permit Issues, he and Mr Grein expressed a joint view on those issues in their joint report. The only point of difference between them was whether, if the vegetation had not been identified as a TEC, a permit would even be required. They had different views in relation to the scope of the exemptions available. However, they agreed that, if the vegetation on the Property had not been identified as a TEC, it was likely that a clearing permit would have been granted,[268] if one was required.[269]

Likelihood of obtaining a clearing permit if it was a TEC

1. The 'NonESA exemptions' do not apply to TEC areas.
2. Clearing principle 1(d) provides that 'Native vegetation should not be cleared if it comprises the whole or a part of, or is necessary for the maintenance of, a threatened ecological community'. Clearing principles are mandatory relevant considerations. The CEO of DWER may make a decision that is seriously at variance with the clearing principles if, and only if, in the CEO's opinion there is a good reason for doing so.
3. Unlike clearing principle 1(e), clearing principle 1(d) is, at its core, unambiguous. No interpretation is required. Native vegetation should not be cleared if it is a part of a TEC.
4. Given the unambiguity of clearing principle 1(d), and in the context of the regulatory regime, Mr Grein considered it was unlikely that a permit would have been granted to clear the TEC area.[270]
5. Dr van der Moezel did not address this in his report at all (and had not been asked to). However, he agreed it was unlikely in the joint report.[271]

1. Mr Grein and Dr van der Moezel were called to give evidence concurrently about the Permit Issues. Although these issues were raised by Valentino's Defence, after some discussions among the parties, none of the defendants sought to crossexamine the experts. Mr Hancy, for the Agent parties, explained that he did not need to crossexamine because the evidence related to the Valentino parties' pleading and Mr Ardizzone's case was that he cannot use the land not only because of the TEC, but also because of the City's conduct.[272] Mr Coyle, for the Valentino parties, said that he also did not need to crossexamine 'for slightly different reasons'. He did not say what those reasons were.[273]
2. Despite this, both the Valentino parties and the Agent parties addressed the Permit Issues in their closing submissions.

Would Mr Ardizzone have been able to clear the vegetation if it was not a TEC? (Issue 10)

1. The Valentino parties' written submissions dealt with Issue 10 in a single sentence. They asserted that the evidence on the point was unclear and the experts' view about likelihood cannot be applied to specific cases.[274] This was not developed in Mr Coyle's oral closing.[275]
2. Although Issue 10 arose only from the Valentino parties' pleading, the Agent parties asserted that whether a permit would be granted was not a matter of expert evidence, but was a hypothetical fact, and no decisionmaker from DWER was called to give evidence.[276]
3. I accept the evidence of the experts that, if the vegetation in the TEC area on the Property had not been identified as a TEC, it is likely that a clearing permit would have been granted (if a permit was required).
4. Their evidence was not unclear, as asserted by the Valentino parties.
5. Further, their evidence can be applied to this case. Neither expert said that a permit would have been granted if the vegetation had not been identified as a TEC. All that they assert, and all that Mr Ardizzone seeks to establish, is that it was likely a permit would have been granted. Mr Grein fully explained why he considered it was likely in relation to this specific case. It was likely having regard to the type of vegetation it was, the size of the area sought to be cleared, and the existence of that type of vegetation elsewhere.
6. In addition, I consider that the experts can properly give evidence about likelihood. Mr Grein's reasons were fully articulated and persuasive. His reasons included his experience of permit applications in other cases. He provided examples of decisions to approve clearing permits from the period around the settlement date involving the clearing of similarly sized areas as the Property, including sites in the vicinity of the Property, even where the clearing was at variance with one or more of the clearing principles.

Could Mr Ardizzone get a permit to clear the TEC area (permit component of Issue 11)?

1. Issue 11 is whether Mr Ardizzone is unable to use the TEC area. In this section, I will deal only with the permit component of Issue 11, being whether it was likely Mr Ardizzone would have obtained a permit to clear the vegetation, given it had been identified as a TEC.
2. The Valentino parties' written submissions dealt with Issue 11 in a single sentence. They asserted that '[t]here are uncertainties about the true area that is not able to be used'.[277] This submission was not directed to whether or not Mr Ardizzone was unable to use part of the Property. It merely queried how large the unusable area was. This was not developed in Mr Coyle's oral closing.[278] However, in his 'reply', Mr Coyle did seek to develop a submission as to the size of the unusable area in relation to the assessment of damages. I deal with this later.[279]
3. The Agent parties submitted that a 'confident conclusion' could not be reached on whether, in the future, Mr Ardizzone will be able to clear the TEC area. Mr Hancy conceded, however, that this was a matter of speculation.[280] Mr Hancy submitted that many factors may be relevant to a decision to grant or refuse a permit and it may be that a permit would be granted. He noted the evidence of Mr Grein that applications have been allowed even if they do not conform to the clearing principles. He repeated his submission in relation to Issue 10 that the relevant decisionmaker was not called.[281] However, Mr Hancy accepted that Mr Ardizzone has been prevented from using the TEC area by the intervention of the City.[282]
4. In the context of native vegetation that was not a TEC, Mr Grein had noted that applications have been allowed even if they do not conform to clearing principles. Mr Grein did not suggest that this could be relevant to an application to clear a TEC. Nor was he asked if it could be. None of the examples provided by Mr Grein in his report involved a permit being granted when it would be at variance with clearing principle 1(d).[283]
5. Based on the regulatory framework and the unambiguity of clearing principle 1(d), it is unlikely that, given that the vegetation on the Property had been identified as a TEC, a clearing permit would have been granted. This conclusion is supported by Mr Grein's evidence, with whom Dr van der Moezel agreed.

1. Mr Ardizzone asserts that he cannot use the TEC area (and its immediate surrounds) as a result of the combined effect of it being a TEC area and the requirements imposed by the City.
2. As noted earlier, the Agent parties concede that the combined effect is that Mr Ardizzone cannot use that area. The Valentino parties' submissions were limited to its assertion that '[t]here are uncertainties about the true area that is not able to be used'.
3. I find that the TEC area (and its immediate surrounds[284]) is not able to be cleared or used, for the following reasons.
4. First, clearing principle 1(d) provides that native vegetation should not be cleared if it comprises a part of a TEC.[285] Clearing principles are mandatory relevant considerations. The CEO of DWER may make a decision that is seriously at variance with the clearing principles if, and only if, in the CEO's opinion there is a good reason for doing so.
5. Second, two of the environmental experts were asked to express an opinion as to the likelihood that a permit would be granted to clear the TEC area. They agreed that, given the vegetation had been identified as a TEC, it was unlikely that a clearing permit would have been granted.[286]
6. Third, the evidence showed that the City is actively protective of the TEC area.

(1) The City required that the area of the TEC be fenced. The development approval granted by the City to Mr Ardizzone on 4 November 2015 imposed a condition that the existing fence be maintained to the City's satisfaction for the life of the development.[287] This was consistent with the City's usual approach to development applications, which is to ensure that conditions are imposed to protect TECs.[288]

(2) In addition, a buffer zone of 20 m from the approved fence line, or 28 m from the TEC, has been imposed. Mr Ardizzone was not permitted to construct a proposed hardstand storage area within that buffer zone.[289]

(3) Further, in exchanges with the Department of Environment Regulation,[290] the City's environmental coordinator advised that the City was 'disappointed' that the department did not consider the clearing of the TEC that had occurred to have caused significant environmental harm and did not intend to prosecute.[291]

1. There is no evidence to suggest that a clearing permit might be issued to clear the TEC area. There is no evidence to suggest that the City might give development approval to use any part of the TEC area. The evidence suggests the contrary. An assertion that either of these things may occur would be pure speculation.

1. In Kenny & Good Pty Ltd v MGICA (1992) Ltd,[292] McHugh J said:

Value is determined by forming an opinion as to what a willing purchaser will pay and a not unwilling vendor will receive for the property.[293] In determining that value, there must be attributed to the parties a knowledge of all matters that affect its value. Those matters will include the predicted impact of future events as well as the experience of the past and the rates of return on other investments. As Isaacs J pointed out in Spencer v The Commonwealth:[294]

'We must further suppose both to be perfectly acquainted with the land, and cognisant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property.' (emphasis added by McHugh J)

1. In McKay v Commissioner of Main Roads [No 7],[295] Beech J[296] summarised the nature of valuation and the role of the court. Relevantly to this case, his Honour said as follows (citations omitted):

In determining the value ..., the court relies on the evidence of professionally qualified valuers. The court is not itself a valuation agency ...

Valuation is an art not a science; it involves the exercise of many subjective judgments and the steps in reasoning are not always able to be articulated fully ...

It is a conventional element of the judicial task to resolve competing expert opinion. The judge determines what expert evidence is to be preferred, what evidence is accepted and what evidence is rejected. The judge is not obliged to accept all or any of either of two competing expert opinions.

1. On appeal, those statements of principles were not challenged.[297] Murphy JA, with whom Martin CJ and Buss JA[298] agreed, stated:[299]

The judge may reach the point where it is necessary to assign a particular figure to a certain factor or complexion of factors for which there is not only no satisfactory direct evidence from a valuer, but where the other evidence provides no clear or firm guide to the selection required to be made. In that event, the court, subject to the provision of procedural fairness, may be left with no alternative but to assign a figure to the factor in question which, in a broad sense, the court considers reasonable to impute to a hypothetical vendor and purchaser in all the circumstances and having regard to the evidence as a whole.

1. Murphy JA also referred to Royal Sydney Golf Club v Federal Commissioner of Taxation,[300] in which Kitto J, in determining the value of land, considered the chance that sales of building lots in subdivision might become possible at some future date. Kitto J said:[301]

How much should be allowed under that head is necessarily a matter of guesswork, for the hypothetical vendor and purchaser would have to engage in sheer speculation ... [I]t will be apparent that I regard the chance to be allowed for as one which negotiating parties would acknowledge but would not treat as more than a very speculative item in their deliberations. I think an increase of five per cent is as near the mark as one can get.

1. Later in these reasons, I discuss the assessment of Mr Ardizzone's loss, including the relevant principles to be applied.[302] The general rule is that damages are assessed as at the date of breach or when the cause of action arose.
2. As a result of Mr Ardizzone's clearing of the Property, the TEC area was reduced. It is unnecessary to consider whether his loss should be assessed based on the reduced area, as an exception to the general rule. This is because Mr Ardizzone claims damages based only on those areas which are presently affected by the TEC and the restrictions imposed by the City. Accordingly, the discussion which follows analyses the proper value of the Property on the basis of the area currently affected, but as at the contract and settlement dates.

1. Two expert witnesses gave valuation evidence. The plaintiff called Mr Hughes. The Agent parties called Mr Gorman.
2. Mr Ardizzone tendered three reports written by Mr Hughes and a joint report of both experts. The Agent parties tendered a report of Mr Gorman.
3. The experts were not far apart in their valuation of the part of the Property that was not affected by the TEC. Mr Hughes valued the unaffected area at $85 per square metre as at the contract and settlement dates, and Mr Gorman at $77 per square metre. The principal point of difference between them was the value each assigned to the TEC area. Mr Gorman assigned a value of $40 per square metre to that area, while Mr Hughes gave it no value, on the basis that it was not capable of use.
4. Both adopted the 'comparable sales' methodology. However, in this section, I will refer to the properties taken into account by Mr Gorman as 'considered properties' rather than 'comparable properties'. This is because there was a dispute between the experts as to which properties could properly be said to be comparable properties for the purposes of the valuation of the Property.

1. Several aspects of Mr Gorman's evidence caused me concern. In some respects, Mr Gorman adopted inconsistent methodology. He also relied on a number of speculative matters. He had regard to some material that was not relevant. Some of his reasoning was, with respect, unpersuasive. I will provide two examples of questionable methodology to illustrate this at the outset. I will provide more examples in my subsequent discussion of Mr Gorman's valuation of the TEC area.

1. The first example of Mr Gorman's questionable methodology is his inconsistent approach to improvements.
2. Mr Gorman considered properties in the same precinct of the MKSEA as the Property, precinct 1. He also considered properties in precincts 2, 3 and 3A. Unlike precinct 1, the City had not sought to have these other precincts reclassified as 'industrial' by the WAPC, and it appears that the City did not intend to do so in the short term.
3. Mr Gorman deducted his assessment of the value of improvements from the sale price of the considered properties in precinct 1. He then used the reduced total to calculate the estimated land value. However, he did not follow the same methodology in relation to all of the properties that he considered. When he was asked to explain this, he said some of the properties had very modest improvements and, because he was placing most weight on the evidence from precinct 1 sales, he went 'further with his analysis' on precinct 1 properties.[303]
4. This did not explain why he had assessed the value of the improvements in respect of some of the properties outside of precinct 1 and not others.[304] In particular, he did not give any value to the improvements at 143 Brook Road, a precinct 3 property. This was despite describing that property as comprising a single level five bedroom, two bathroom brick and iron residence featuring a below ground pool, double garage under the main roof line, ducted air conditioning, high ceilings, with a 15 m x 8 m x 10 m powered workshop and which presented in good condition.[305]
5. When it was put to Mr Gorman that he did not give any value to the improvements at 143 Brook Road, he said that 'I gave regard to the improvements. I took an overall rate'.[306] However, he admitted that he derived the overall rate for that sale by dividing the sale price by the land area. This gave no value to the improvements. He admitted that was a different method to his method for the precinct 1 properties. He admitted that, if he had deducted the value of those improvements from the sale price for 143 Brook Road, he would have assessed the price per metre as less than the $39 per square metre he asserted in his report for this property.[307] This was one of the properties that Mr Gorman appears to have relied upon to conclude that the value of the TEC area on the Property was $40 per square metre.
6. The second example of questionable methodology is provided by Mr Gorman's reliance on a property at 52 Victoria Road, a precinct 2 property. This property had not actually been sold. As at December 2012 (the date of the Contract in this case), it had been on the market for about 10 months. It remained on the market for a total of 628 days without selling. The property was again listed in June 2014 and had not been sold at the time of Mr Gorman's report. Although Mr Gorman said he only had 'limited regard' to this property, I accept Mr Hughes' evidence that this is not sales evidence and was not comparable in any event.[308] This too was one of the properties that Mr Gorman appears to have relied upon to conclude that the value of the TEC area on the Property was $40 per square metre.

1. Mr Gorman's opinion was that the value of the TEC area on the Property could be assessed by reference to the value of land in precincts 2 and 3.
2. Mr Gorman said that precincts 2 and 3 were zoned general rural and 'were potentially subject to development constraints', yet could still be used and passively enjoyed. He said that there was therefore some logic in applying the value of land in precincts 2 and 3 to the TEC area. He said he could not discount that the TEC area may be able to be used in the future. He said he could not categorically say that it will, but that he took the view that it 'should at least achieve rates equal to the land in precinct 2 for these reasons'.[309]
3. Mr Gorman's logic was therefore based on the propositions that, like land in precincts 2 and 3, the TEC area could be passively enjoyed and it might be able to be actively used in the future. Each proposition requires analysis.

1. Mr Gorman was asked what he thought the future uses of the TEC area might be. He said it was 'somewhat speculative' but that he had seen land with development constraints used for development offsets.
2. Mr Gorman did not refer in his report or in his oral evidence to any evidence that the TEC area would or could be used as a development offset.[310]
3. Mr Hughes' evidence was that an area covered by a TEC was similar to a 'Bush Forever' site. He said such sites are usually valued at nil because they have no utility.[311] In response, Mr Gorman said that he was aware of some instances where Bush Forever sites had been sold. He referred to one example where a Bush Forever site was acquired as a development offset.[312]
4. The fact that some Bush Forever sites may have been sold and used as development offsets says nothing about the value that is usually attributed to such sites. Nor did Mr Gorman say that Bush Forever sites are usually given some value. By contrast, Mr Hughes said that Bush Forever sites are usually valued at nil. I accept Mr Hughes' evidence as to that. I further consider that the proposition that TEC land could be sold as a development offset is speculation. A hypothetical purchaser would disregard the possibility in the assessment of value, on the basis it was so remote as to not warrant any allowance.
5. Mr Gorman maintained his view that precincts 2 and 3 provided an indication as to how much was being paid for land 'with constraints'. It was put to him that the constraints were not prohibitions on use. He replied 'Well, some of the land has native vegetation over - over it and obviously I'm not an environmental scientist, I - I just observe the market, and my observations and certainly what was - what was commonly known in - in - at the time was that precinct 2 and 3 had more constraints'. Despite asserting, in support of his position, that some of the land had native vegetation on it, he was unable to identify which of the properties he had considered had native vegetation on them.[313]
6. Mr Gorman was then asked about a property which had an area of 'resource enhancement wetland' on it. He admitted he had taken an overall view of the property and had not calculated a value for the resource enhancement wetland area separately to the rest of the land. Mr Hughes criticised that approach. Mr Hughes said a much lower rate should be applied to the resource enhancement wetland area than to the area that is available for rural use. He explained that there were requirements relating to wetlands that were similar, albeit less stringent, to the requirements of TEC land. Mr Hughes said, for example, that an owner is required to rehabilitate resource enhancement wetland.[314]
7. I do not accept that the sales in precincts 2 and 3 provided any valid basis upon which to assess the value of TEC land. If land within a property in precinct 2 or 3 had a constraint that was similar to a TEC, that part of that property might be comparable to a TEC area, depending on the level of constraint. But there is no logical reason to assess the value of the TEC area on the Property by having regard to the overall price per square metre of a property in precinct 2 or 3 that contained an area subject to a particular constraint, particularly when no effort is made to separately value the unconstrained area and the constrained area. The fact that precincts 2 and 3 were not going to be rezoned industrial in the short term was not a constraint that could be equated, in any way, with a TEC. Mr Gorman's approach was flawed. I prefer the evidence of Mr Hughes.

1. Mr Hughes also disagreed with Mr Gorman's reliance on the passive enjoyment of the TEC area. Mr Hughes did not accept that the proper valuation of the Property could be approached on the basis of it being a lifestyle property with value ascribed to something that is an encumbrance and is shrouded in uncertainty.[315] Mr Hughes explained that the relevant issue was the 'commercial usability of properties that have been identified by purchasers of these properties as being future industrial land or business development'.[316] Mr Hughes said that Mr Gorman's approach was not consistent with good valuation practice.[317]
2. Mr Gorman was asked if there would be an aesthetic benefit in the TEC area if the owner was unable to walk through it. He said 'there could be'.[318]
3. This was, to say the least, unpersuasive. In closing submissions, the Agent parties were unwilling to abandon Mr Gorman's opinion that the TEC area had aesthetic value. Mr Hancy submitted that the evidence that there was a fence on the houseside of the TEC was weak. Mr Hancy said there was no evidence of a fence apart from Mr Ardizzone's evidence.[319] Mr Ardizzone's evidence about the fence was not challenged and I accept it. Ultimately, Mr Hancy conceded that he was not suggesting that I place 'a huge amount of weight' on the aesthetic value.[320]
4. In my view, the restrictions on access to the land imposed by the City, as a result of the TEC, are such that any aesthetic value is nominal.[321] A hypothetical purchaser of this Property would not give it value.

1. Mr Gorman also asserted that the TEC area had value as it was possible some form of compensation would be paid in the future.
2. Mr Gorman said that he had been told by the City that its preferred long term position was that some sort of compensation would be paid to land holders to facilitate the coordination of the development of the area.[322] He was asked if there was anything known to him that suggested that was likely. He said that, based on that information from the council and his own experience, 'you couldn't just dismiss land as having zero value at all'.[323]
3. Mr Gorman also said that compensation may be paid as development occurs and other owners deal with requirements to provide open space.[324] It seems this was similar to the development offset point.
4. Mr Gorman conceded that the prospect of any compensation was speculative.[325]
5. Mr Gorman also did not say anything in his report or in his oral evidence as to the form any compensation might take, when it might be paid, or the conditions on which it might be payable.
6. Given the speculative nature of Mr Gorman's evidence in relation to compensation, and the absence of any detail as to any such compensation, it is difficult to give much weight to it. When I add to this my concerns about Mr Gorman's evidence more generally, I do not accept that the speculative possibility of some undefined type and amount of compensation should affect the assessment of the value of the TEC area. A hypothetical purchaser would disregard the possibility in the assessment of value, on the basis it was so remote and uncertain as to not warrant any allowance.

1. The Agent parties' oral closing submissions did not advance any specific criticism of Mr Hughes' approach. Mr Hancy's submission was simply that Mr Hughes' opinion was dependent upon his instructions and he had effectively valued the TEC land on the basis that it would not be able to be cleared.[326]
2. The Agent parties made two additional criticisms in their written submissions. First, that Mr Hughes could not say whether some of the properties he considered to be comparable sales had native vegetation on them. Second, that further clearing was not permissible in relation to one of the properties, 95 Victoria Road.[327]
3. The first point does not cause me to doubt Mr Hughes' opinions and prefer Mr Gorman's. Both experts referred to constraints that went beyond the constraints that apply to all native vegetation. They referred to TECs and wetlands. Neither expert attempted to establish the presence or extent of native vegetation, in the absence of a TEC or wetland, on the properties they considered in forming their opinions.
4. In relation to the second point, 95 Victoria Road was the property at which Mr Vucinic lived. As discussed elsewhere, the defendants had sought to adduce documents showing that clearing of vegetation on that property had caused issues. I ultimately refused to accept those documents into evidence.[328]
5. Further, both experts considered that 95 Victoria Road was comparable to the Property. Both used it, in effect, to assess the value of that part of the Property that was not affected by a TEC, supported or confirmed by other evidence.[329]
6. The only real difference between them was what the comparable sale rate actually was from 95 Victoria Road. This difference arose from their different assessments of the value of the improvements.
7. The overall sale price of all of the land at 95 Victoria Road was $87 per square metre.
8. After deducting the value of the improvements on 95 Victoria Road from the sale price, Mr Gorman considered that the price per square metre was $77. Mr Gorman's opinion was that a similar rate would have applied to the part of the Property that was not within the TEC area.[330] As noted earlier, Mr Gorman valued that part of the Property at $77 per square metre.
9. Mr Hughes considered that the price per square metre, exclusive of improvements, of 95 Victoria Road was $82. Mr Hughes considered it to be marginally inferior to the Property due to its slightly lower contours.[331] His opinion was that the part of the Property that was not within the TEC area was worth about $85 per square metre.
10. I have already explained my concerns about Mr Gorman's opinions. These included his approach to assessing improvements. An example of that, not mentioned earlier, relates to this 95 Victoria Road property. Mr Gorman valued the improvements at 95 Victoria Road at $200,000, having valued what appeared to be similar improvements at 79 Victoria Road at only $100,000. His only explanation for this significant difference was his assertion that the latter improvements were 'inferior'.[332] If Mr Gorman had valued the improvements at 95 Victoria Road at $100,000, he would have concluded it was worth about $82 per square metre, as Mr Hughes did.
11. I do not have any concerns about Mr Hughes' evidence, he gave a very detailed description of the improvements,[333] and I accept his evidence.

1. In my discussion of Mr Gorman's evidence, I referred to Mr Hughes' evidence that an area covered by TEC was similar to a 'Bush Forever' site. Mr Hughes said such sites are usually valued at nil because they have no utility.
2. In his report, Mr Hughes noted that the Property was advertised as 'future prime industrial' land. He gave the TEC area no value, on the basis that it was not capable of use.[334]
3. As noted earlier, Mr Hughes did not accept that the proper valuation of the Property could be approached on the basis of it being a lifestyle property. Mr Hughes explained that the relevant issue was the 'commercial usability of properties that have been identified by purchasers of these properties as being future industrial land or business development'.
4. Subject to the qualification below, I accept Mr Hughes' opinion that the TEC area should be given no value.

Possibility that the TEC area could be cleared

1. Mr Hughes valued the Property on two scenarios. The first assumed that the TEC area could be cleared. The second assumed it could not be. The first valuation was, obviously, higher. Mr Ardizzone claimed that the difference between the two values represented the loss caused by the TEC.
2. Mr Hancy pointed out that, if the area had not contained a TEC, it would still have been subject to restrictions on the clearing of native vegetation. He also submitted that, even given the TEC, Mr Ardizzone may have obtained permission to clear the TEC area. Therefore, Mr Hancy submitted that Mr Hughes' valuations represented the extreme ends, and the true value(s) would be somewhere in between.
3. Mr Hughes accepted it was possible that the value(s) could be somewhere in between.[335]
4. However, in assessing the value of the TEC area, the real issue is whether a hypothetical purchaser would have had regard to the possibility that a permit might be granted to clear vegetation within the TEC area. Similarly, in assessing the value of the TEC area if the vegetation had not been identified as a TEC, the real issue is whether a hypothetical purchaser would have had regard to the possibility that a permit might not be granted to clear native vegetation.
5. In relation to the latter, Mr Cobby submitted that, if it is likely that a permit would be granted to clear native vegetation, the hypothetical purchaser would have acted on the basis that the vegetation could be cleared.[336] Although he did not deal expressly with the other 'end' of the valuation, no doubt he would say that, given it is unlikely that a permit would be granted to clear a TEC area, the hypothetical purchaser would have acted on the basis that it could not be cleared.
6. I do not accept that the hypothetical purchaser would assume that there was no possibility that the TEC area could be cleared, perhaps in the future. Accordingly, I am required to assign a value that I consider reasonable to impute to a hypothetical vendor and purchaser in all the circumstances and having regard to the evidence as a whole.
7. I do not have direct expert evidence as to the value of the TEC area if it was valued on the basis that it was merely unlikely to be able to be cleared rather than, as Mr Hughes' did, on the basis that it could not be cleared. Nor does the other evidence establish the value. Mr Hughes' evidence was that it was not something that could be calculated using a mathematical formula based on the likelihood that a permit would be granted.[337]
8. I consider that it is highly unlikely that a permit would be granted to clear the vegetation in the TEC area in light of the regulatory framework and the unambiguity of clearing principle 1(d). This is so even having regard to the fact that the TEC on the Property comprised a small percentage of the overall FCT 20a remaining.
9. In my view, a hypothetical purchaser would treat the possibility as barely more than speculative and assign little value to it. Doing the best that I can, I consider that I should determine the value of the TEC area to be $10 per square metre.

1. As noted earlier,[338] Mr Ardizzone claims damages based on a valuation of the Property which takes into account only those areas which are presently affected by the TEC and the restrictions imposed by the City, but as at the contract and settlement dates. Mr Hughes valued the Property on that basis.
2. In Mr Hughes' opinion, the areas at the sides and at the rear of the TEC area were of no value. This opinion was based on the same reasons as he gave for his opinion that the TEC area was of no value - those areas could not be used.[339] As noted earlier, there are sandy fire breaks down each side of the TEC area which extend to the boundary of the Property. There is a sandy fire break at the rear of the TEC area, and there is a thin strip of land between the edge of the fire break and the Property boundary.
3. For the same reasons as I gave for finding that the value of the TEC area is $10 per square metre, I find that these areas should be valued at $10 per square metre.
4. In relation to the buffer zone, Mr Hughes valued that at $42.50 per square metre.[340] This is 50% of the value he assigned to the fully usable land. Mr Hughes acknowledged that this assessment was speculative and difficult. He said this was because the utility of the buffer zone depended upon negotiations between the proprietor of the Property and the relevant authorities.[341] Mr Hughes accepted that some of the aerial photos indicated that parts of the buffer zone were being used. He accepted that, if there was no requirement to rehabilitate those areas and the areas were being used legally, this would increase the area that was usable.[342]
5. Mr Ardizzone accepted that he has stored some equipment in the buffer zone required by the City.[343] However, he was not permitted to construct the proposed hardstand storage area within the buffer zone.[344]
6. On the evidence, the buffer zone cannot be equated to fully usable land. I accept that Mr Ardizzone is able to use at least some of it, for particular purposes. However, it cannot be valued at the same rate as unrestricted land. All that can be definitively said is that the value of the buffer zone land would be more than nil and less than $85 per square metre (the value of the unrestricted areas as at the relevant dates). Assessing where the value lies in that range is more difficult. Mr Hughes said that his valuation of $42.50 per square metre was speculative because any utility depended upon negotiations between the proprietor of the Property and the relevant authorities.
7. The fact that Mr Ardizzone has been able to make some use of part of the buffer zone does not substantively undermine the basis of Mr Hughes' opinion that its use depended upon negotiations. In any event, the valuation of the buffer zone can only be speculative. I am required to do the best I can.
8. In my view, it is relevant that I have found that the TEC area should be given some value for the possibility a clearing permit could be granted in the future. It is also relevant that Mr Ardizzone has been able to make limited use of part of the buffer zone. However, the assessment is little more than guesswork. Doing the best that I can, I consider that the buffer zone should be valued at $50 per square metre.
9. The Agent parties also sought to suggest that Mr Ardizzone was using the area at the rear of the TEC area. Mr Hancy took Mr Hughes to an aerial photograph which appeared to show two items in the thin strip of land between the fire break and the back boundary. As noted, Mr Hughes had agreed that, if an area was being used legally, this would increase the area that was usable. However, in relation to the area at the rear of the Property, he pointed out that it would depend on the extent to which it was accessible.[345]
10. In crossexamination, Mr Ardizzone was asked about those two items. He said he did not know what they were and had not stored anything in that area. He noted that the property adjoining that boundary was being developed.[346] I accept Mr Ardizzone's evidence. In any event, I would not assign any value to that area. Even if he was permitted to use the thin strip of land, the only way to access it is by the sandy fire tracks. It is, for practical purposes, unusable.

1. In Mr Hughes' opinion, the unrestricted area of the Property had a value of $85 per square metre.[347] Mr Gorman's opinion was that the unrestricted area of the Property had a value of $77 per square metre.[348] I have already explained why I do not accept Mr Gorman's opinions, but the difference between them is not great. I have also already explained why I accept Mr Hughes' evidence generally.
2. I accept Mr Hughes' opinion that the unrestricted area of the Property had a value of $85 per square metre.
3. This time I do not qualify my acceptance of his opinion by the possibility that a permit might not be granted to clear native vegetation that was not a TEC. Again, I do not have direct expert evidence as to the value of the Property if it had no TEC but if it was merely likely that the native vegetation would be able to be cleared. Nor does the other evidence establish that value.
4. Again, I am required to assign a value that I consider reasonable to impute to a hypothetical vendor and purchaser in all the circumstances and having regard to the evidence as a whole.
5. I consider that the prospect that a permit would not be granted to clear the native vegetation if it was not a TEC is so speculative as to be disregarded by the hypothetical purchaser. The regulatory regime and the evidence as to permits being granted elsewhere make the prospect remote.

1. Mr Hughes assessed the depreciated value of improvements on the Property as $80,835. Mr Gorman assessed it as $150,000. In their joint report,[349] each addressed the difference between them.
2. Mr Gorman's comment was:[350]

When analysing the sales evidence, Mr Gorman has placed most weighting on the actual purchase price of each property; however, to account for differences resulting from the type and quality of improvements, he has provided a 'hypothetical breakup' of the estimated land value and the added value of the improvements, attempting to account for these differences consistently across the evidence.

1. Mr Hughes' comments[351] included the age and stated value of the home on the Property when it was built and his estimate of the new replacement cost as $130,000 as at December 2012. He said that in his opinion the economic life of the improvements on the Property as at December 2012 was limited, particularly in view of the imminent changes in zoning to permit higher and better uses. He said he considered his allowance of $80,835 for the depreciated value of improvements to be 'full' in the circumstances due to escalated factors of depreciation such as inadequacy, lack of utility and obsolescence.
2. In Mr Hughes' original report he went into some detail about the improvements on the property and the change to those improvements since the settlement date.[352] Mr Gorman also made observations on these topics in his report.[353]
3. I have already expressed my concerns about Mr Gorman's evidence, including his inconsistent approach to improvements.
4. Having regard to the evidence as to the nature and condition of the improvements, and my concerns in relation to Mr Gorman, I accept Mr Hughes' valuation of the depreciated value of the improvements.

1. For these reasons, I find that, as at the contract and settlement dates, but on the basis of the changes to the TEC area and the restrictions imposed by the City that occurred after settlement:

(1) the TEC area and the areas surrounding the TEC which Mr Ardizzone is unable to use should be valued at $10 per square metre. This land area totals 6,155 sqm, giving a value of $61,550;

(2) the buffer zone of the Property should be valued at $50 per square metre. This land area totals 2,557 sqm, giving a value of $127,850; and

(3) the unrestricted area of the Property was worth $85 per square metre. This land area totals 11,497 sqm, giving a value of $977,245.

1. The depreciated value of the improvements is $80,835.[355]
2. The total value of the Property is therefore $1,247,480.

1. I have already noted my acceptance of Mr Hughes' evidence that the unrestricted areas of land on the Property should be valued at $85 per square metre and the depreciated value of the improvements should be valued at $80,835.
2. The total area of the Property is 20,209 sqm giving a value of $1,717,765 at $85 per square metre. Adding to that the depreciated value of the improvements gives a total value of $1,798,600.
3. In other words, if there had not been any TEC on the Property, the land would have been worth $1,798,600 at the contract and settlement dates.[356]

1. Therefore, having regard to the events that have occurred since the settlement date, the reduction in value of the Property attributable to the existence of the TEC is $551,120.

1. I will next discuss the specific issues that arise in relation to each cause of action in the original action, beginning with the contract claim.

1. Mr Ardizzone alleges that Valentino breached cl 9.1(a)(1) of the General Conditions. As noted in the Overview, that subclause relevantly provides that the seller represents and warrants to the buyer that, as at the contract date and as at the earlier of possession and the settlement date, the seller does not know of any demand, requisition, order or requirement relating to the Property which had been made by an 'Authority' and which remained current.
2. 'Authority' is defined in cl 26.1 as any governmental, statutory body or other public body or authority including a local government.
3. As noted in the Overview, I refer to such a demand, requisition, order or requirement as a 'Government Requirement'.
4. Although cl 9.1(a)(1) refers to the contract date and as at the earlier of possession and the settlement date, neither party suggested that the reference to the date of possession had any bearing on the proper construction of the clause. Accordingly, in discussing the clause, I will refer only to the contract date and the settlement date.
5. Mr Ardizzone alleges that Valentino breached cl 9.1(a)(1) because, as at the settlement date, it knew of a Government Requirement. Mr Ardizzone alleges that the Letter was, or communicated, a Government Requirement.
6. I will deal with the following issues in turn:

(1) Did the Letter communicate a Government Requirement?

(2) What is the proper construction of cl 9.1(a)(1)?

(3) Does the clause only apply to a valid Government Requirement?

Did the Letter communicate a Government Requirement?[357]

1. Although the breach of Contract was only alleged against Valentino, all of the defendants submitted that the Letter did not communicate a Government Requirement. The defendants submitted that any 'requirement' was imposed by the operation of statutory provisions to the facts, not by a governmental authority. In other words, the defendants submitted that the Letter communicated a requirement that had been made by legislation, not by an authority.
2. There is merit in the contention that the requirement to obtain a specific permit was imposed by the operation of the regulatory regime to the facts. However, I have concluded that the Letter did communicate a Government Requirement for the following reasons.
3. The Letter had the effect of transforming the TEC area into an ESA. I have explained the circumstances that led to the identification of the TEC area and the manner in which it became an ESA, requiring a specific permit. In particular, the area that had been identified as containing FCT 20a only became an ESA when the Letter was received by Valentino.[358]
4. If the Letter had not been sent, the TEC area would not have become an ESA. The NonESA exemptions would have continued to apply to the TEC area. In that very real and practical sense, by sending the Letter, the Department 'made' the requirement that a permit be obtained before clearing could be done of the kind that would otherwise be exempt.
5. The principles to be applied to contract construction were recently summarised by the Court of Appeal in Black Box Control Pty Ltd v Terravision Pty Ltd.[359] Applying those principles to the Contract, I conclude that the phrase 'made by' an authority encompasses a situation such as the present. It would be understood by a reasonable person to include a situation where a requirement was imposed by the act of a governmental authority (sending the Letter) which had the effect of triggering the application of a regulatory regime. The text, context and purpose of cl 9.1(a)(1) and the General Conditions as a whole do not suggest a narrow interpretation of 'made by' is required.
6. This is sufficient to dispose of the issue. However, even if the Letter had not had the effect of making the TEC area an ESA, I would still conclude that it communicated a requirement made by an authority.
7. It is true that the requirement to obtain a specific permit was imposed by the operation of the regulatory regime to the facts. However, in my view, that does not necessarily prevent a conclusion that it was also a requirement that had been made by an authority within the meaning of the General Conditions.
8. The regulatory regime applied to the Property because of the Minister's determination that SCP 20a was a TEC and the Department's determination that the Property did contain an area of SCP 20a.
9. In my view, cl 9.1(a)(1) would be understood by a reasonable person to include a situation where a particular property was made subject to requirements imposed by legislation by the acts of a governmental authority. Again, the text, context and purpose of cl 9.1(a)(1) and the General Conditions as a whole do not suggest a narrow interpretation of 'made by' is required.

What is the proper construction of cl 9.1(a)(1)?[360]

1. Mr Ardizzone submitted that, had the Valentino parties disclosed the Letter, he would have been entitled to terminate the Contract or, at the very least, he would have been entitled to compensation or abatement of the purchase price. This submission was based on the following propositions:

(1) Clause 9.1(a)(1) is a contractual promise that the seller does not know at the date of the Contract, and will not know at the date of settlement, of any Government Requirement. In other words, it is a qualified promise that there is no Government Requirement: qualified because the seller will only be in breach if it knows about it on the contract or settlement date.

(2) It should be characterised as an intermediate term.

(3) As it is an intermediate term and the breach went to the root of the Contract, Mr Ardizzone would have had the right to terminate the Contract if the breach had been disclosed.

(4) Or, in any event, he would have been entitled to compensation or abatement of the purchase price.

1. In order to understand the parties' submissions, it is necessary to set out cl 9.1 in its entirety:
   1. Seller Representation and Warranty

9.1 Contract Date - Possession Date - and Settlement

Except as otherwise disclosed in writing by the Seller to the Buyer before the Contract Date, the Seller represents and warrants to the Buyer as at the Contract Date and as at the earlier of possession and Settlement as follows.

(a) The Seller does not know of any of the following.

(1) Any demand, order, requisition or requirement relating to the Property which:

(A) has been made by an Authority and remains current; or

(A) for the realignment, widening or alteration of the level of any road adjoining the Land; and

(B) which would be likely to materially affect the Land or the use of it.

(3) Any obligation to pay money to an Authority in respect of:

(B) expenses incurred or to be incurred, by an Authority in relation to the Land.

(4) Except in relation to a Strata Lot, any sewer, drain, pipe, cable or other installation passing through the Land to provide services to other land.

(B) contribute towards the cost of construction or repair of, a dividing fence between the Land and any adjoining land whether arising under the Dividing Fences Act 1961 or otherwise.

(6) Any encroachment on the Land by a building or other structure on adjoining land.

(b) No building or other structure on the Land encroaches on adjoining land.

(c) As far as the Seller is aware, each dividing fence and wall is on the boundary of the Land.

(d) The Seller:

(B) except as otherwise specified in the Contract, the Property Chattels will be free of any Encumbrance.

(e) Subject to clause 6.1(b), the Property will be in the same state and condition it was in immediately before the Contract Date.

(f) As far as the Seller is aware:

(1) no person has any right arising from adverse possession;

(2) no public right of way or easement has been acquired by enjoyment or use; and

(3) no mining lease or licence has been issued under any Act, in respect to the Land.

1. The Valentino parties submitted that the purpose of cl 9.1(a)(1) 'is to inform Mr Ardizzone of matters emanating from an authority that relate to the Property which he is shortly to become the registered proprietor of'.[361]
2. Mr Coyle, for the Valentino parties, submitted that a breach of cl 9.1(a)(1) would not give rise to a contractual entitlement in the buyer to terminate or to claim damages measured by the extent to which the Property's value is diminished by the effect of the matters set out in the Government Requirement. Mr Coyle submitted that the clause was there to ensure that, as at the contract and settlement dates, the buyer is made aware of communications from authorities that have some interest or control over the land or activities on it. Mr Coyle submitted that a buyer might otherwise be significantly disadvantaged if there was a lengthy settlement period. Mr Coyle frankly acknowledged, however, that this was 'not a terribly good explanation' because the representation arises at the two moments in time of the contract and settlement dates, and was not continuous.[362]
3. In their written submissions, the Valentino parties appeared to be submitting that, on their construction, there was no contractual remedy for breach of cl 9.[363] In oral closing submissions, Mr Coyle pointed out that cl 9 does not expressly refer to any remedy for breach.[364]
4. However, in reply, Mr Coyle returned to a point he had made in a pretrial hearing.[365] He suggested that, on their construction, damages might be payable if cl 9 was breached. In essence, Mr Coyle submitted that damages could be payable for loss caused by the delay in passing on information. Mr Coyle suggested an example where the seller was told the day before settlement that the fine for clearing native vegetation had been doubled, but did not tell the buyer. Subsequently, the buyer did some clearing and was fined and then said to the seller 'I did this clearing. I've been fined. This has arisen because you've breached your obligation to disclose'.[366]
5. This submission is difficult to reconcile with the Valentino parties' denial (at times) that cl 9.1(a)(1) creates an obligation to disclose.[367] In addition, the example required a particularly active imagination. On Mr Coyle's construction, it would be a very unusual factual scenario, like the one postulated, that could lead to an entitlement to damages for breach. It is objectively unlikely that cl 9.1(a)(1) was intended to cater for such a narrow range of circumstances. On this construction, while cl 9.1(a)(1) would not be entirely pointless, it would have very little work to do.
6. Further, the other subclauses of cl 9.1 do not support a narrow construction of cl 9.1(a)(1). For example, the promise that, so far as the seller is or will be aware, no person has a right of adverse possession[368] does not support such a narrow construction.
7. There is no doubt that cl 9.1(a)(1) is difficult to interpret. It is odd that it contains a promise that the seller will not know something in the future. Nevertheless, that is what it says, and no party suggested it did not mean that. I am left to construe cl 9.1(a)(1) against the background of that oddity.

1. Mr Cobby, for Mr Ardizzone, pointed out that cl 9.1 is generally concerned with potential obligations imposed in relation to the land and the right to use or occupy the whole of the land, as evidenced by cl 9.1(a)(2) (any proposal affecting the use of the land), cl 9.1(a)(3) (any obligation to pay money to an 'Authority'); cl 9.1(a)(4) (any installation passing through the land), cl 9.1(a)(6) (encroachment) and cl 9.1(f) (no right of adverse possession, easement or mining lease or licence).[369] Mr Cobby submitted that the objective purpose of cl 9 is to deal with those things that would not be seen on the title.
2. Mr Cobby submitted that the purpose of the clause is illuminated by considering the practice that existed prior to the introduction of standard general conditions, which was to issue long requisitions on title. Buyers lost the right to make requisitions on title when the standard conditions were introduced.[370] He also pointed out that, in those subclauses of cl 9 that relate to the seller's state of mind, the allocation of risk to the seller is limited to what the seller actually knows. Mr Cobby said this was consistent with cl 8.1 which provides that the risk relating to the property passes from the seller to the buyer when the purchase price is paid (or when the buyer is entitled to or takes possession).
3. Mr Cobby did not argue that cl 9.1(a)(1) is an unqualified promise that there was not a Government Requirement. Rather, he submitted that it was a promise that the seller did not know of a Government Requirement. However, if that promise was breached, then 'the whole of the promise has effect'. He submitted that the effect of cl 9.1(a)(1) is that it would not be breached if the seller did not know of the Government Requirement but, if the seller did know, the seriousness of the breach would be judged by the impact of the Government Requirement on the land. He submitted, in effect, that cl 9.1(a)(1) is a qualified promise that there is no Government Requirement: qualified because the seller would only be in breach if it knows about it.[371]
4. Mr Cobby pointed out that cl 9 deals with a range of matters and that a breach of cl 9 may or may not be a substantial breach. For that reason, Mr Cobby submitted that cl 9 should be construed as an intermediate term. This construction allows the remedy to match the significance of the breach, consistently with what is to be expected the parties objectively intended.

Valentino parties' challenge to Mr Ardizzone's construction

1. The Valentino parties submitted that Mr Ardizzone's construction 'can be said to be capricious, unreasonable, inconvenient, or unjust, in various respects'.[372] They identified one respect - that it would mean that the seller is to be treated as having made contractual warranties respecting unanticipated postcontract contingencies.[373] I do not accept that any of those adjectives apply. Mr Ardizzone's construction is limited to matters the seller knows about. It is consistent with the loss of the buyer's previous right to make requisitions. It is consistent with cl 8.1 which provides that the risk did not pass from the seller to the buyer until the purchase price was paid.[374]
2. In relation to cl 8.1, Mr Coyle pointed out that it is followed by provisions that specifically deal with the contractual consequences in a particular situation. Clause 8.2 provides, in summary terms, that the subclauses that follow would apply if, before settlement, a building or residence was damaged to the point of being substantially unusable. In my view, this does not detract from the point that Mr Ardizzone's construction is consistent with a clause that provides that the risk does not pass from the seller to the buyer until the purchase price was paid.
3. The Valentino parties further submitted that Mr Ardizzone's construction would be 'a radical shift in where the burden falls in relation to postcontract events'. They submitted '[g]enerally, absent special contractual provisions, a vendor will not be exposed in relation to events arising after contract and before settlement'.[375] With respect, this is a bootstraps argument. Mr Ardizzone's case was that cl 9.1(a)(1) is such a 'special contractual provision'. Mr Ardizzone was not advocating a 'radical shift'.
4. The Valentino parties submitted that '[i]f Mr Ardizzone was to have blanket protection from the contingencies that might be set out in a demand, requisition, order or requirement, one would expect to see clear words'. The Valentino parties then listed a number of clauses which set out the circumstances in which specific remedies are available (or are expressly excluded).[376] However, Mr Ardizzone's construction would protect him only from Government Requirements known to the seller. Further, Mr Ardizzone does not assert blanket protection even in relation to Government Requirements known to the seller. He asserts that he would be entitled to terminate only if the breach of cl 9.1(a)(1) went to the root of the Contract. Unlike some other clauses in the General Conditions, cl 9 does not expressly exclude termination as an available remedy for breach.
5. Mr Coyle submitted that it would be odd if something the seller knew at settlement could give rise to a right to damages or termination.[377] However, it is not 'knowledge' in some abstract sense. It is knowledge of a certain fact that may adversely affect the property, the use to which it can be put, and its value. It is not odd to connect that knowledge to the time at which the buyer will be handing over the purchase price.
6. Mr Coyle pointed out that cl 15 of the General Conditions limits a buyer's contractual rights in relation to errors and misdescriptions in the Contract. He said it would be anomalous for cl 9.1(a) to permit contractual termination when cl 15 does not. I do not accept this. It could equally be said that, unlike cl 15, cl 9.1 does not expressly exclude termination.
7. Mr Coyle also submitted that, on Mr Cobby's construction, sellers could escape liability because they had not opened their mail. This is correct. However, this result merely reflects the fact that, on Mr Cobby's construction, a point had to be selected somewhere on the range - from an unqualified warranty, to a warranty qualified by actual knowledge, to a warranty qualified by what the seller ought reasonably to have known, and so on. Further, sellers who did not open their mail would equally escape liability on Mr Coyle's construction.

1. As I will explain, I accept Mr Cobby's submissions.

1. The aspect of the construction that has caused me the most difficulty is determining what is actually being promised.
2. Clause 9.1 is awkwardly worded. By cl 9.1(a), the seller promises he or she will not know various matters in the future. By cl 9.1(c), the seller promises that, on the future settlement date, he or she will be aware that dividing fences and walls are on the boundary. By cl 9.1(f), the seller promises, among other things, that, on the future settlement date, he or she will be aware that no person has a right of adverse possession. It is odd to promise that you will not know something in the future or that, so far as you will be aware, certain things will or will not be so. Nevertheless, it is sufficiently clear that the objective purpose of cl 9.1(a)(1) is to put the risk of a Government Requirement on the seller if, and only if, the seller knew about it before settlement.
3. This construction is consistent with the loss of the buyer's right to make requisitions. It is not an unreasonable construction, being limited to matters actually known to the seller. It would not be a commercial nonsense. It gives cl 9.1(a)(1) work to do.
4. The construction offered by the Valentino parties would give cl 9.1(a)(1) little work to do. It would only apply in a narrow range of circumstances.
5. In my view, construing the General Conditions as a whole, and considering the text, context and purpose of the clause, a reasonable person would have understood cl 9.1(a)(1) to be a promise that there was not, and there would not be as at the settlement date, a Government Requirement in relation to the land, to the seller's knowledge.

1. In my view, the objective intention of the parties was that cl 9.1 would be a contractually binding promise. It was recorded in writing. By cl 16, requisitions on title were prohibited. Taking into account the text, context and purpose of cl 9.1, it was a contractually binding promise.
2. Further, it is properly characterised as an intermediate term, for the following reasons.
3. The use of the word 'warranty' does not compel the conclusion that it should be characterised as a warranty in the sense of something that does not give rise to a right to terminate if breached.[378]
4. The scope of matters which could be covered by cl 9.1 is wide, and the consequences of a breach could range from insignificant to serious.
5. Clause 9.1 includes matters that could significantly impact the land. It includes warranties that, as far as the seller is aware, no person has any right arising from adverse possession, no public right of way or easement has been acquired and no mining lease has been issued.[379] In those circumstances, I conclude that the objective intention of the parties was not that no breach of the clause would give rise to a right of termination, such that the clause should be characterised as a 'warranty'. Rather, the use of the word 'warranty' in the clause was intended to show that the promises were contractually binding.
6. Clause 9.1 also includes matters that are of less significance, such as the warranty that the seller does not know of any obligation to repair a dividing fence.[380] Therefore, I conclude that the objective intention of the parties was not that every breach of the clause would give rise to a right of termination, such that the clause should be characterised as a 'condition'.
7. The objective intention of the parties was that the remedies available for a breach would depend upon whether the breach went to the root of the Contract. The clause was an intermediate term.[381]
8. The breach in this case[382] went to the root of the Contract. In all of the circumstances, particularly the size of the TEC area, its conversion into an ESA by the Letter and the Property's anticipated rezoning, Mr Ardizzone was substantially deprived of the benefit of the Contract. Even if I am wrong about that, he would have been entitled, at the very least, to compensation or abatement.

1. Issue 5 is whether cl 9.1(a)(1) would only apply to a demand, order, requisition or requirement which was valid and had the asserted effect. This issue arose because the Valentino parties submitted that the Letter was 'of no force and effect'.
2. Elsewhere I have found that the Letter was 'valid' and had the asserted effect.[383] It is therefore unnecessary to consider Issue 5.[384]

1. Issue 9 is whether Valentino breached cl 9.1(a)(1).
2. It was common ground that Valentino knew about the Letter before the settlement date.
3. The pleading on this issue was said to be par 8 and par 8.9 of Valentino's Defence. Many of the allegations in par 8 were withdrawn shortly before or during the hearing[385] or were conceded to be repetitive.[386] In final submissions, Mr Coyle accepted that, if the Letter had legal force and communicated a Government Requirement, Valentino breached cl 9.1(a)(1).[387] I have explained elsewhere that the Letter had legal force and communicated a Government Requirement.[388] Accordingly, Valentino breached the clause.

1. The Valentino parties pleaded that Mr Ardizzone's alleged loss was not caused by the alleged breach of cl 9.1(a)(1). This gave rise to Issue 38.
2. The Valentino parties accepted that, in light of the evidence, if I found against them in relation to the proper construction of cl 9.1(a)(1) and the effect of the Letter, Mr Ardizzone's loss was caused by the breach.[389] I have found against them on those two issues.[390]
3. The evidence which led to this concession[391] was the Colbys' evidence that, had Mr Ardizzone asked them to agree to terminate the Contract, they would have agreed to do so. Mr Ardizzone's evidence was that, had he been told about the Letter, he would not have bought the Property.[392]
4. I find that the breach of Contract caused Mr Ardizzone to suffer a loss. I will deal with the assessment of that loss after discussing the second cause of action, the misleading conduct claim.[393]

1. The issues that arise in the misleading conduct claim are:

(4) Was the conduct misleading or likely to mislead?

(5) Did the conduct cause Mr Ardizzone to suffer loss or damage?

(6) Did Mr Ardizzone cause or contribute to any loss?

(7) If the answers to questions (3) (5) are yes, how should the loss be apportioned between the defendants?

1. Mr Ardizzone alleges, in relation to each defendant, that the conduct that breached the ACL was their failure to disclose the Letter, by reason of various matters.
2. Those matters included cl 9.1(a)(1) of the General Conditions, the provision of the Marketing Documents to him, the contents of those documents, implied representations allegedly made by those documents, the defendants' knowledge of the contents of the Letter, and the allegation that, by reason of the matters revealed by the Letter, it was unlikely that the TEC area would be available for industrial or any use.
3. In alleging that the defendants' failure to disclose the Letter was misleading by reason of various matters, the statement of claim pleaded different matters in relation to the Valentino parties compared to the Agent parties. In particular, cl 9.1(a)(1) was pleaded only in relation to the Valentino parties and the Marketing Documents were pleaded only in relation to the Agent parties. However, the case was run on the basis that the relevant conduct and circumstances were the same for all defendants.[394]
4. It is now common ground that each of the defendants knew of the Letter and its contents, and that none of them disclosed it. It is common ground that cl 9.1(a)(1) was a condition of the Contract and that the Marketing Documents were provided to Mr Ardizzone. It is disputed that the Marketing Documents made the alleged implied representations.

1. The first of the Marketing Documents was a 'fact sheet'.[395] The second was the Landowners Letter.[396]
2. The fact sheet stated:

(3) the Property had an area of approximately 20,200 sqm;

(4) the Property formed part of the Proposed Stage 1 of the MKSEA;

(6) an Outline Development Plan was awaiting approval by the WAPC.

(1) the MKSEA has been subject to MRS Amendment 1211/41 to rezone the land from rural to industrial. The amendment:

(b) had gone through Parliament without objection, and

(c) had been approved by the WAPC on 18 September 2012;

(2) the City was now required to amend its local planning scheme in line with that amendment;

(3) an Outline Development Plan would be required detailing subdivision and development parameters for MKSEA Precinct 1; and

(4) a draft Outline and Development Plan (which was attached) had been prepared, on which comment had been sought by 29 October 2012.

1. Mr Ardizzone pleaded that the Marketing Documents implicitly represented to him that:[397]

(1) there was no restriction on the use of the whole or substantially the whole area of the Property (first representation); and/or

(2) steps were being taken that would likely result in the whole or substantially the whole of the Property being zoned for industrial use (second representation).

1. The defendants disputed that the Marketing Documents made the first representation. Mr Hancy for the Agent parties submitted that the Marketing Documents did not represent anything to this effect. He said the documents did not say that, as a consequence of rezoning, the purchaser would be free to clear whatever vegetation he wanted to. They did not say anything about clearing, or that industrial rezoning meant he could clear the land.[398] Mr Coyle submitted that the Marketing Documents did not convey anything about the absence of restrictions on use and did not purport to provide comprehensive information about that.[399]
2. In relation to the second representation, the defendants accepted that the Marketing Documents represented that there was a welladvanced proposal underway to amend the zoning to industrial, but they pointed out that this was true. They disputed that the Marketing Documents represented that the Property was likely to be rezoned for industrial use, as distinct from simply representing that the Property was likely to be rezoned industrial.[400]
3. Mr Cobby noted that the Marketing Documents included the statement that the WAPC had approved the rezoning of the area containing the Property from rural to industrial, and that the City was required to amend its local planning scheme. He noted that the fact sheet suggested that the draft plan had already been submitted by the City to WAPC for its approval.
4. Mr Cobby pointed out that there was no reference to any restriction on the proposed use of the Property in either document.
5. Mr Cobby submitted that it was implicit in those statements that there was no impediment to the whole or substantially the whole of the land being available for industrial use.
6. He submitted that, in that context, the reference to the area of the Property and the statement that the zoning of the Property was 'Proposed Industrial' contained a representation that the whole of the area of the Property would be available for use, namely industrial use, and that the City was required to rezone the Property to accord with the amendment passed by the WAPC in September 2012.[401]
7. After reserving my decision, I advised the parties that, if read literally, the alleged first representation would be that there was no restriction on use, including, for example, no restrictions imposed by the criminal law (such as, to give a silly example, growing cannabis) or by ordinary requirements for development approvals for certain types of developments. I advised the parties that I did not understand Mr Ardizzone to be asserting that the alleged first representation was to be read literally, and that his case appeared to have been conducted on the basis that the alleged first representation was that there would be no unusual restriction. I indicated that, unless a party wished to be heard on the matter, I would treat the alleged first representation as asserting that the Marketing Documents represented that there would be no unusual restriction.
8. The Valentino parties indicated they did not wish to be heard on the issue. The Agent parties indicated that they did, and subsequently the Valentino parties changed their minds.
9. The parties proposed that they each file written submissions and that the matter be set down for further hearing. The further hearing took place on 22 January 2019.
10. During the further hearing, the defendants conceded that Mr Ardizzone had not run his case on the basis that the alleged first representation was to be read literally. However, they submitted that Mr Ardizzone's case was that the alleged first representation was that there would be no restrictions on clearing vegetation, whether or not the vegetation was within a TEC area. It will be recalled that native vegetation that is not in a TEC area is still subject to restrictions.
11. Mr Cobby pointed out that the alleged first representation was directed to restrictions on use. He noted that Mr Ardizzone's case was run on the basis that the TEC was an unusual restriction, and one that could not have been ascertained by any reasonable enquiry. He pointed out that Mr Ardizzone did not rely on any restrictions other than those relating to the TEC area. He noted that Mr Ardizzone led evidence that it was likely a permit would be granted to clear native vegetation that was not in a TEC area. He submitted that Mr Ardizzone's case was run on the basis that the Marketing Documents represented that there would be no unusual restriction on use.
12. Mr Cobby also submitted that, if the allegation was interpreted as Mr Hancy contended it should be, the representation would not have been misleading if the only restrictions on use were the restrictions that apply to native vegetation outside of TEC areas. This was, in effect, because those restrictions would not actually have prevented Mr Ardizzone from using the land, in view of the evidence that it was likely a permit would be granted to clear native vegetation that was not in a TEC area.
13. Had it not been for Mr Hancy's conduct of the case, I would have accepted that the case was run as alleging a representation of no unusual restriction on use. The Valentino parties appeared to have thought that was how the case was run, at least until the Agent parties indicated that they disagreed. However, Mr Hancy clearly believed that the case he was meeting was an alleged representation that there was no restriction on clearing vegetation of any kind. I am unable to conclude that his belief was unreasonable. It was perhaps insufficiently clear that Mr Ardizzone was running his case on the basis that the Marketing Documents represented that there would be no unusual restriction on use.
14. This is in no way a criticism of Mr Ardizzone's representatives, who conducted the trial with a high level of competence. There were originally 40 issues in the list of issues to be determined in the original action. While Mr Ardizzone pleaded the alleged representations, he did not rely on them as a separate basis of liability. Rather, the alleged misleading conduct, in relation to all of the defendants, was the failure to disclose the Letter. Mr Cobby pointed out, repeatedly, that even if I found the pleaded representations were not made, the Marketing Documents would remain relevant to the characterisation of the defendants' failure to disclose the Letter.[402]
15. Mr Cobby submitted that, if the point required pleading (which was not conceded), Mr Ardizzone would seek leave to amend the first representation to include the word 'unusual'. Both defendants submitted that this would require further evidence. While it is not immediately apparent why that would be so, it would be undesirable at this late stage to further delay the matter to give the defendants the opportunity to demonstrate that and to adduce evidence of potential prejudice.
16. I am concerned to do justice between all parties.
17. I recognise that, if I do not find the alleged representations were made, Mr Ardizzone's claims under s 30 of the ACL will fail, at least as against the Agent parties.[403] However, it will have no practical impact on Mr Ardizzone's claims under s 18 that the defendants' failure to disclose, in all of the circumstances including the Marketing Documents, was misleading conduct.
18. On the other hand, while it is not obvious to me that further evidence would be required or that the defendants would suffer any prejudice, I cannot say it is not reasonably possible.
19. In those circumstances, I consider I should not further delay my decision by giving the parties an opportunity to make submissions as to whether further evidence would be required and to adduce evidence of prejudice.
20. For these reasons, I have concluded that I should not decide the case on the basis that the first representation alleged that there would be no unusual restriction on use. Rather, I will decide it on the basis that it alleged that there were no restrictions on use arising from native vegetation.

Did the Marketing Documents make the alleged representations?[404]

1. The Marketing Documents described the Property as 'Industrial/Land Development' and 'Future Prime Industrial Land', with an area of approximately 20,200 sqm. The documents made no mention of any restrictions that might arise as to the use of the land. The documents created the impression that rezoning was in train and they did not suggest there would be any impediment to the ordinary industrial use of any of the land.
2. I consider that the documents implicitly represented that, at least so far as that could be determined, there were, or would be, no unusual restrictions on the industrial use of all the land, once it was rezoned. To be clear, by 'unusual', I mean an impediment that would not routinely apply, such as the need to get development approvals in accordance with state and local government requirements.
3. In my view, this conclusion is compelled by the description of the Property as 'Industrial/Land Development' and 'Future Prime Industrial Land', in combination with the statement as to the area of the land.
4. I further find that the documents implicitly represented that the Property would be, or at least was highly likely to be, rezoned industrial in the near future. This was, of course, true.
5. I do not accept that the statements implicitly represented that there would be no restriction on the use of the Property arising from native vegetation.
6. Accordingly, I find against Mr Ardizzone on this issue. As a result, his claims under s 30 of the ACL must fail, at least as against the Agent parties.[405]
7. However, the provision and contents of the Marketing Documents remain part of the relevant circumstances to be considered in evaluating Mr Ardizzone's claim that the nondisclosure of the Letter was misleading. The defendants did not contend otherwise.

1. The Valentino parties denied that their conduct was in trade or commerce.
2. The general principles to be applied were not in dispute.[406] A private sale of land is not ordinarily regarded as being in trade or commerce. However, there is no principle that a vendor of domestic land does not engage in trade or commerce unless in the business of doing so. The relevant question is whether anything can be identified in the transaction which imports a trading or commercial character.[407]
3. The following facts are relevant to the characterisation.
4. The first defendant, Valentino, is a corporation. It acts as trustee for the Colby Family Trust.[408] The financial records of the trust indicate that Valentino was essentially carrying on the business of investment.[409] Although Mr Colby said that Valentino was not in the business of buying and selling properties for profit,[410] Valentino had engaged in the business of property development in relation to a Como property it had purchased, developed and sold.[411]
5. Valentino had purchased the Property for the purposes of conducting its business from those premises, if and when it became zoned for industrial use. At the time the Property was sold, it had not yet been rezoned, so this did not happen.
6. Mr Colby said that the Property was not used for any other business purpose, although rent was paid by a driller and by a relative of a neighbour for short periods, and employees may have stayed there in transit.[412]
7. The Selling Agency Agreement by which Valentino authorised CRI to offer the Property for sale was titled (in lowercase) as a 'selling agency agreement, commercial and industrial: exclusive agency'.
8. The Property was marketed on the basis that it would be suitable for commercial or industrial use. The sales flyer described it as 'future prime industrial land'.
9. In those circumstances, the transaction had a trading or commercial character. Accordingly, the alleged misleading conduct of Valentino and the Colbys was conduct in trade or commerce.

1. The Agent parties did not admit that their conduct was in trade or commerce, but did not direct any submissions to this issue. CRI carried on business as a real estate agent and employed Mr La Rocca as a real estate agent. The relevant conduct of the Agent parties was therefore conduct in the course of CRI's business (the marketing for sale of property) and Mr La Rocca was engaged in the trade or commerce of CRI in acting as he did.[413]

1. The general principles to be applied were not in dispute. The principles were helpfully summarised by Beech J[414] in Caffey v LeattHayter [No 3].[415] In short, the principles relevant to this case are (citations omitted):

Conduct is misleading or deceptive if, viewed as a whole, it has a tendency to lead a person into error.

Whether conduct is misleading or deceptive is a question of fact, to be determined objectively in light of all the surrounding facts and circumstances.

Conduct is likely to mislead or deceive if there is a real and not remote possibility that it will do so. It is not necessary that the degree of likelihood exceeds 50%.

A statement that is literally true may nevertheless be misleading and deceptive.

[A] statement made to a particular individual that is capable of more than one meaning will be likely to mislead or deceive if a meaning that is reasonably open is misleading or deceptive. If that is so, there will be a real and not remote possibility that the representation is misleading or deceptive. The meaning actually attributed to the statement by the recipient is relevant to reliance, but not to the objective characterisation task.

1. Further, where, as here, the conduct is directed to an individual, relevant circumstances include the nature of the parties, the character of the transaction, and what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known.[416]

1. Arising from Valentino's Defence,[417] Issue 22 is whether silence can constitute a false and misleading representation. However, it was later agreed that this was not the relevant question.[418] Rather, the relevant question is 'whether in the light of all relevant circumstances constituted by acts, omissions, statements or silence, there has been conduct which is or is likely to be misleading or deceptive'.[419]
2. In relation to the principles to be applied where silence is relied upon, all parties cited the judgment of French CJ and Kiefel J[420] in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd.[421] The relevant propositions set out in that judgment can be summarised as follows:

(1) For conduct to be misleading or deceptive, it is not necessary that it convey express or implied representations. It is sufficient that it leads or is likely to lead into error.

(2) In determining whether there has been conduct which is or is likely to be misleading or deceptive, the term 'conduct' is to be understood according to its definition, which includes a reference to 'refusing to do any act' which in turn, includes a reference to 'refraining (otherwise than inadvertently) from doing that act'.

(3) The circumstances in which silence or nondisclosure of information can be misleading or deceptive are various. Silence is to be assessed as a circumstance like any other.

(4) In commercial dealings between individuals or individual entities, characterisation of conduct will be undertaken by reference to its circumstances and context. Silence may be a circumstance to be considered. The knowledge of the person to whom the conduct is directed may be relevant.

(5) A practical approach which may be taken to the characterisation of conduct consisting of, or including, nondisclosure of information is whether the circumstances are such as to give rise to the 'reasonable expectation' that if some relevant fact exists it would be disclosed. This approach is not a statutory approach, and is merely an aid to characterising nondisclosure as misleading or deceptive. The judgment as to whether there is such a reasonable expectation is objective.

(6) The invocation of a reasonable expectation that if a fact exists it will be disclosed directs attention to the effect or likely effect of nondisclosure unmediated by antecedent erroneous assumptions or beliefs or high moral expectations which exceed the requirements of the general law and the prohibition imposed by the statute.

(7) Generally, provisions such as s 18 do not require a party to commercial negotiations to volunteer information which will be of assistance to the decisionmaking of the other party. A fortiori it does not impose on a party an obligation to volunteer information in order to avoid the consequences of the careless disregard, for its own interests, of another party of equal bargaining power and competence.

1. Mr Ardizzone submitted that, in determining whether the failure to disclose the Letter was, or was likely to be, misleading or deceptive, the relevant circumstances were as follows.[422]

(1) The nondisclosure of the Letter occurred in the context of the Property being marketed for sale as land having an area of approximately 20,200 sqm in the process of being rezoned as industrial. Information was provided by Valentino's agent to Mr Ardizzone which suggested that process was welladvanced (and the Marketing Documents were relied upon regardless of whether the pleaded implicit representations were established).

(2) Mr Ardizzone did not know of the Letter, and could not have ascertained its existence by taking any reasonable step (so did not have careless disregard of his own interests).

(3) The defendants knew, prior to settlement, that a relatively large area of the Property had special conservation value, and a special permit would be required before any clearing could be done. The Colbys determined that the Letter should be disclosed to Mr Ardizzone. Mr La Rocca said he would disclose it.

(4) The Contract contained cl 9.1(a)(1) to the effect that Valentino did not know of any Government Requirement in relation to the Property. Each of the signatories to the Contract are taken to have known of its contents. The Agent parties knew of the provisions of the Contract because Mr La Rocca agreed he had read, and was familiar with, the whole of the General Conditions[423] and he had prepared the Contract for execution.

(5) The existence of the TEC, disclosed by the Letter, had important ramifications if the land was to be put to any industrial or commercial purpose, not least because of the large area of the Property which was said to be subject to the TEC.

1. The Agent parties submitted that cl 9.1(a)(1) was not a relevant circumstance in determining whether the circumstances generated an expectation of disclosure. Mr Hancy submitted that Mr Ardizzone would have to have known about the clause before it could be one of the relevant circumstances. Mr Hancy submitted that the principle in contract law is that a person is bound by the terms of a contract he or she signs, even if the person was unaware of a particular term.[424] He submitted that the principle was not that each signatory to a contract is taken to have known of its contents and, in any event, it is a principle of contract law, not a principle of misleading conduct law.
2. Mr Hancy did not submit that it was necessary that the defendants have knowledge of cl 9.1(a)(1). In any event, the Agent parties had actual knowledge of the clause.
3. The Valentino parties did not contend that actual knowledge of the clause was required (by anyone) before the promise could be part of the relevant circumstances. Rather, the Valentino parties submitted that the misleading conduct claim required the court to accept Mr Ardizzone's construction of cl 9.1(a)(1), which they said was untenable.
4. The parties' submissions on this issue were very brief and, with respect, did not fully engage with the complexities. It is not necessary to resolve the issue. This is because, as I will explain, I consider that a reasonable expectation of disclosure arose even disregarding cl 9.1(a)(1).

Other circumstances relied on by Mr Ardizzone

1. The defendants did not dispute the relevance of each of the other circumstances relied upon by Mr Ardizzone, but disputed that the Marketing Documents made the implied representations. I have found that they did not make the pleaded representations. However, the provision and contents of the Marketing Documents remain part of the relevant circumstances to be considered in evaluating Mr Ardizzone's claim that the nondisclosure of the Letter was misleading.

Additional circumstances raised by defendants

1. The Agent parties' submissions on this issue (of whether their conduct was misleading) were combined, in effect, with their submissions on causation (Issue 39). To a large extent, the Agent parties focussed on whether Mr Ardizzone had relied on the alleged misleading conduct and asserted that reliance had to be proved. However, the 'practical approach' suggested in Miller calls for an objective assessment of whether the circumstances were such as to give rise to the 'reasonable expectation' that if some relevant fact exists it would be disclosed. Further, when the misleading conduct is constituted by nondisclosure, the notion of 'reliance' is a less useful tool of analysis in determining whether there is a causal connection. Rather, causation will be established if disclosure would have caused action or inaction other than that which was taken. I will say more about the Agent parties' assertion that Mr Ardizzone was required to establish reliance in dealing with the causation question.[425]
2. That said, the Agent parties identified a number of matters that they submitted were additional relevant circumstances in this inquiry.
3. First, they submitted that the following matters demonstrated Mr Ardizzone's state of mind:[426]

(1) Mr Ardizzone knew there were laws that regulated what he could do on his land, but did not contact anyone from the City or the Department to ask about them. It was submitted that he should have.

(2) Mr Ardizzone was keen to buy a property and acted in haste.

1. In relation to Mr Ardizzone acting in haste, the Agent parties referred to a number of matters, including that Mr Ardizzone did not know how much land he would need. Mr Ardizzone's evidence was that his business required the storing of very large pieces of equipment and that he needed a lot of space.[427] The effect of Mr Ardizzone's evidence was that he needed at least five acres.[428] The total area of the Property, including the TEC area, is approximately five acres. With that qualification, I accept that the evidence indicated that Mr Ardizzone moved very quickly to purchase the Property.
2. The Agent parties submitted that Mr Ardizzone

formed for himself an unreasonable and mistaken belief that, if he acquired the land, he would have an unrestricted right to clear the land of vegetation ... This false belief was not engendered by the conduct of, and on [Mr Ardizzone's] evidence it was not disclosed to, the [Agent parties]. Mr Ardizzone had no reasonable basis to expect to be told in the future that there were restrictions on his ability to clear vegetation from the land:

1. He knew there was vegetation on the land;
2. He had no reason to think that the vegetation that he cleared was not native vegetation;
3. He was capable of making enquiries to find out what the vegetation was and what he could or could not do on the land;
4. The third and fourth defendants had no obligation to act in his interests;
5. He had no basis to expect that the third and fourth defendants knew about his belief so that he would be told he was wrong if a future fact came to light that falsified his undisclosed belief.
6. The Valentino parties made a number of the same points, and did not make any additional points.

1. Generally, a party to commercial negotiations is not required to volunteer information which will be of assistance to the decisionmaking of the other party. A party is not obliged to volunteer information in order to avoid the consequences of the careless disregard, for its own interests, of another party of equal bargaining power and competence. However, in my view, the circumstances were such as to make the failure of the defendants to disclose the Letter misleading.
2. The Marketing Documents described the Property as 'Industrial/Land Development' and 'Future Prime Industrial Land', with an area of approximately 20,200 sqm. The Marketing Documents represented that the Property would be, or at least was highly likely to be, rezoned industrial in the near future. The documents did not suggest there was or would be any unusual[429] impediment to the industrial use of any of the land, once it was rezoned. On the contrary, the Property was described as 'Future Prime Industrial Land', and the area of the land was specifically stated.
3. There was an unusual impediment to the industrial use of a substantial proportion of the Property as a result of the TEC. The TEC area covered approximately a third of the total land area at that time. The TEC area was subject to a stringent regime, to which no exemptions relevantly applied. An application to clear the vegetation in the TEC area would be dealt with very differently to an application for a permit, if one was required, to clear native vegetation that was not a TEC. It was unlikely that a permit would be granted to clear the vegetation in the TEC area. It was therefore unlikely that the TEC area would be available for any use, let alone an industrial use.[430] In my view, it is no answer to say that there was a possibility that a permit to clear the TEC area may have been granted. The different and stringent regime was a significant impediment.[431]
4. Mr Ardizzone did not know there was a TEC area on the Property, and a reasonable purchaser, taking reasonable steps, would not have found out or anticipated it might exist. I do not accept that Mr Ardizzone's speed in entering into the Contract is relevant. There is no evidence to suggest that a reasonable purchaser, acting more slowly, would have discovered the existence of the TEC.[432]
5. The significance of the Letter was so obvious that Mr Colby believed that the Letter should be disclosed to Mr Ardizzone. He told his wife he would arrange that through Mr La Rocca, and she assumed that that had happened.[433]
6. The significance of the Letter was so obvious that Mr La Rocca, an experienced real estate agent, advised Mr Colby, at least on Mr La Rocca's evidence, that the Letter should be disclosed to Mr Ardizzone.[434]
7. In my view, the failure to disclose the Letter was objectively misleading or deceptive in the circumstances. The Marketing Documents alone gave rise to the reasonable expectation that, if there was a potential impediment to the industrial use of part of the land, and that impediment was unusual and not insignificant, it would be disclosed. This is so disregarding any 'antecedent erroneous assumption' by Mr Ardizzone that he could clear native vegetation, as I will explain.
8. Having regard to the circumstances, a reasonable purchaser, regardless of what he or she knew about the clearing of native vegetation, would reasonably expect to be told about any potential impediment to the industrial use of part of the land that was unusual and not insignificant, once the land had been rezoned.
9. Even if a reasonable purchaser should be taken to have been aware of the restrictions on clearing native vegetation, very different regimes apply to clearing native vegetation and the clearing of TECs. The evidence showed that a permit to clear the vegetation was likely to have been granted (if required) if it was not a TEC, but unlikely to be granted if it was. Native vegetation that is not within a TEC area does not create a significant impediment. In the circumstances, a reasonable purchaser who was aware of the restrictions on clearing native vegetation would still reasonably expect to be told about any TEC on the Property. A reasonable purchaser would have been misled by the failure to disclose.
10. Judged objectively, the circumstances gave rise to the reasonable expectation that, if there was a potential impediment to the industrial use of part of the land, and that impediment was unusual and not insignificant, it would be disclosed.
11. Approximately one third of the land was within the TEC area. The TEC was a significant and unusual impediment. The defendants did not tell Mr Ardizzone about the TEC. The defendants' conduct was misleading.
12. In relation to the Agent parties, this conclusion is supported by the further circumstance that Mr La Rocca deliberately chose not to disclose the Letter.[435]
13. In relation to Valentino and Mr Colby, this conclusion is supported by the further circumstance that Mr Colby deliberately chose not to disclose the Letter until he had ascertained what the impact might be and had been reassured by Mr La Rocca that it was 'nothing to worry about'.

Distinction between the Valentino parties and the Agent parties?

1. The Agent parties submitted that there was a distinction between their conduct and the conduct of the Valentino parties.
2. First, they pointed out that the 16 January email did not ask Mr La Rocca to do anything. They said that Valentino had nominated and appointed a settlement agent, but did not tell the settlement agent about the Letter. They also said that CRI had limited authority.[436]
3. In my view, these matters do not establish a relevant distinction. Mr La Rocca admitted that Mr Colby asked him to send the Letter to Mr Ardizzone and that he asked Mr Colby to send him a copy of the Letter so that he could do so.[437] I have found that Mr La Rocca received the 16 January email which attached the Letter. In addition, Mr La Rocca's evidence was that the email would have been read by someone at CRI. Further, CRI identified the 16 January email in its discovery, and did not adduce evidence that there had been any difficulty with its email systems during the relevant period.
4. Second, the Agent parties submitted that, even if the contractual promise was a relevant circumstance, and even if it gave rise to an obligation to disclose, the obligation would be imposed on Valentino, not the Agent parties. They further submitted that it would be disclosure at settlement and probably when the purchaser had become the owner.
5. It is unnecessary to deal with this submission as I have disregarded cl 9.1(a)(1) in my assessment of the relevant circumstances. If it had been necessary to deal with it, I have already explained my conclusions on the proper construction of cl 9.1(a)(1). Further, while I accept that the promise was made by Valentino only, the Agent parties knew it had been made.

1. Before turning to the next issue, I will deal with one final matter raised by the Valentino parties' pleading.
2. Valentino's Defence pleaded that their failure to disclose the Letter was inadvertent, and therefore was not misleading or deceptive conduct.[438] The Valentino parties relied upon s 4(2)(c) of the Competition and Consumer Act 2010 (Cth) (Consumer Act). That section provides that a reference to refusing to do an act includes a reference to 'refraining (otherwise than inadvertently) from doing that act'. This gave rise to Issue 21.
3. However, by the end of the trial, the Valentino parties did not contend that, if their failure to disclose was inadvertent, this would have any bearing on whether or not they engaged in misleading conduct.
4. In their written closing, the Valentino parties addressed each of the remaining issues under headings for each issue, as I had requested. In relation to Issue 21, their submissions were as follows:[439]

The failure to disclose was inadvertent as Mr Colby believed on reasonable grounds that Mr La Rocca would provide a copy of the Letter to Mr Ardizzone.

However, this issue has little if anything to do with the merits of the claim based on misleading and deceptive conduct.

1. Mr Coyle did not address Issue 21 orally.
2. Elsewhere in their written submissions, the Valentino parties set out their contentions as to why they had not engaged in misleading conduct (Issue 31).[440] Inadvertence was not mentioned.
3. The Valentino parties clearly understood that Mr Ardizzone's case on misleading conduct was not limited to an allegation of mere silence. It was the failure to disclose the Letter in all of the circumstances, [441] including the marketing of the Property.[442] While the Valentino parties disputed, among other things, Mr Ardizzone's construction of the Contract, they did not assert that his claim should fail on the basis that the nondisclosure was inadvertent.
4. As a result, it is unnecessary to consider Mr Cobby's submissions as to inadvertence, as interesting as they were. However, in case I am wrong about this, I earlier made findings as to the circumstances of the failure to disclose.[443] In any event, I would not conclude that the court in CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd[444] was plainly wrong.

Did the misleading conduct cause loss?[445]

1. Again, the principles were helpfully summarised by Beech J in Caffey.[446] In short, relevantly to this case, the principles can be summarised in this way:

(1) A plaintiff must demonstrate that the loss or damage suffered was suffered 'by' conduct in contravention of the relevant Act.

(2) The word 'by' expresses the notion of causation.

(3) In order to determine whether a particular loss is caused by contravening conduct, it is necessary to consider the purpose of the statute as it relates to the particular circumstances of the case.

(4) Because misleading or deceptive conduct claims are not confined to representations, reference to reliance on a misrepresentation should not be permitted to obscure the need to identify contravening conduct and a causal connection between it and the loss and damage suffered.

(5) The contravening conduct need not be the sole cause of the plaintiff's loss and damage. It is enough to demonstrate that the conduct was a substantial (rather than negligible) cause of the loss or damage.

(6) Reliance and causation are determined subjectively, by reference to the effect of the contravening conduct on the plaintiff. However, questions of reliance and causation invite attention to the objective material in assessing the probability that the contravening conduct or misrepresentation influenced the plaintiff's relevant conduct at the time. The assertions of the plaintiff, given in hindsight in the context of litigation, are to be treated with caution.

(8) The fact that a person could have discovered the truth had he or she made proper enquiries, and was careless, does not preclude a finding of causation.

(9) In a case where nondisclosure is misleading, or renders other statements misleading, the causation question is addressed by asking what the plaintiff would have done if he or she was aware of the undisclosed facts.

1. In relation to this last point, it has been explained that, particularly when the misleading conduct is constituted by nondisclosure, the notion of 'reliance' is less useful as one of the 'tools of analysis' to be utilised for the purposes of determining whether there is a causal connection.[447] Rather, causation will be established if disclosure would have caused action or inaction other than that which was taken.[448]

1. In the further hearing on 22 January 2019, Mr Hancy submitted that Mr Ardizzone had to prove reliance in this case, because he had pleaded he had been misled by the defendants' conduct, and his evidence was that he believed, before he entered into the Contract, that there would be no restrictions on clearing.
2. I do not accept this submission.
3. First, while Mr Ardizzone pleaded that he was misled, he pleaded that he was misled by the failure to disclose, in all of the circumstances.
4. Paragraph 27 of the Statement of Claim relevantly alleged:

[B]y reason of [various matters], the conduct of each of the [Agent parties] pleaded in paragraph 19 was misleading or deceptive, alternatively likely to mislead or deceive, in that the Plaintiff was thereby led to believe that there would likely be no restriction as to the use of the whole of the Property if he purchased it, when in fact it was unlikely that the area of the Property containing the TEC would be available for industrial or any other use.

1. The conduct pleaded in par 19 was that the defendants did not disclose to Mr Ardizzone the contents of the Letter.
2. Paragraph 24 made a similar allegation against the Valentino parties.
3. Accordingly, while Mr Ardizzone pleaded that he was misled, he pleaded that he was misled by the failure to disclose, in all of the circumstances. Mr Ardizzone further pleaded that, had the Letter been disclosed, he would have rescinded the Contract or renegotiated the purchase price.[449]
4. Second, and in any event, this was not a case that was conducted on the pleadings. Indeed, it was not until the Agent parties amended their defence, after the trial, that Mr Ardizzone's pleaded allegation that he had been misled was denied in their defence.
5. On the second day of the trial, I raised with the defendants various issues I had with their pleadings and queried whether the pleadings matched what their cases actually were.
6. In response to my questions, Mr Coyle indicated that he was not going to be running some of the pleaded arguments, others were not pressed, and others he needed more time to consider. During the trial, additional issues were withdrawn.[450]
7. My first question to Mr Hancy on the second day of hearing was why the Agent parties' PreTrial Defence 'did not admit' par 27 of the Statement of Claim. In response to this question, and my questions about other pleadings, he said he would review the defence. Mr Hancy advised that he was not the author of the pleading. He said there were some things that may need to be changed, but that he had not thought that they were important enough to make an amendment before trial.[451] During the trial, the Agent parties' pleading was raised on several occasions, and various changes were foreshadowed. A draft of the amended defence was provided to the other parties on the last day of trial.[452] The Agent parties filed, with leave, an amended pleading the following Monday.
8. A concrete example of how the case was conducted differently to the pleadings is provided by the parties' pleadings and submissions in relation to the relevant circumstances against which the defendants' failure to disclose was to be judged.[453]
9. The case as it was run demonstrably involved questions of whether Mr Ardizzone would have acted differently if the Letter had been disclosed. The Agent parties pleaded that he would not have. This gave rise to Issue 20, discussed earlier. This pleading appeared to be based on documents provided to Mr Ardizzone, the alleged conversations with Mr La Rocca, the unauthorised clearing done by Mr Ardizzone before he received the City Notice, and the allegation that Mr Ardizzone knew there was a TEC on the Property before he purchased it. This last basis was deleted in the Agents' PostTrial Defence.
10. Further, the case as it was run demonstrably involved questions of whether Mr Ardizzone would have rescinded the Contract or renegotiated the purchase price if the Letter had been disclosed. The Agent parties pleaded that he would not have. This gave rise to Issue 24, discussed earlier.
11. Mr Ardizzone's case was clearly run on the basis that he had been misled in the relevant sense. Mr Ardizzone submitted:[454]

Finally, in this regard, it is not correct to say, in the plaintiff's submission, that the plaintiff was not misled by the failure to disclose the existence of the TEC. His letters to Mr La Rocca and the first defendant dated 16 June 2014 ..., written without legal assistance, directly raised the defendants' failure to inform him of the DEC Letter. The clear inference is that he would not [have proceeded] with the purchase of the Property had he known of the TEC, and he did [not] know of it because each of the defendants withheld that information from him.

1. Third, even if it is linguistically sensible to refer to reliance in a nondisclosure case, the relevant time at which to judge this is not limited to what Mr Ardizzone believed prior to entering into the Contract. Mr Ardizzone paid for the Property on the settlement date because he did not know about the TEC as at that time. His belief as at the settlement date that he would be free to clear the vegetation was substantially contributed to by the Marketing Documents and by the defendants' failure to disclose the Letter.

1. The fact that Mr Ardizzone believed that there would be no restrictions on use caused by clearing restrictions, going beyond what the Marketing Documents represented, does not mean the misleading conduct did not cause his loss.
2. Mr Ardizzone's evidence was that, if he had known about the TEC on the Property, he would not have purchased it. He said he wanted to use all of the land for his business. He said that, if he had known that there were restrictions on the use of the Property that could not be easily fixed, apart from the zoning requirements, he would not have bought it. I have accepted this evidence.[455]
3. Mr Ardizzone is not claiming a loss caused by native vegetation that was not in a TEC area. It is likely that such vegetation would have been able to be cleared. Given that, if Mr Ardizzone had known there were restrictions on clearing such vegetation, he probably would still have bought the Property if the only native vegetation on the Property was not in a TEC area.
4. Mr Ardizzone is claiming a loss caused by the TEC. His loss was, in effect, that he bought a property that he would not otherwise have bought and, because of the TEC, the Property was worth less than he paid for it.
5. His loss was not caused because he mistakenly believed that he would be free to clear native vegetation that was not within a TEC area. His loss was not caused, or at least not solely caused, because he mistakenly believed that he could clear any form of native vegetation. This belief would not have caused any loss if there had not been a TEC on the Property. The substantial cause of his loss was the defendants' failure to tell him about the TEC.
6. Accordingly, the defendants' misleading conduct caused Mr Ardizzone's loss.

1. The Valentino parties pleaded that the true cause of any loss suffered by Mr Ardizzone was his own conduct.[456] This gave rise to Issue 28.
2. The Valentino parties pleaded in the alternative that any loss suffered by Mr Ardizzone was partly as a result of his failure to take reasonable care in circumstances where the defendants had no intention of causing, and did not fraudulently cause, such loss or damage.[457] This gave rise to Issue 29. The Valentino parties pleaded that any amount of loss which Mr Ardizzone might recover should therefore be reduced, under s 137B of the Consumer Act,[458] to an amount which is just and equitable having regard to his responsibility for such loss. [459] This gave rise to Issue 35.
3. The Valentino parties' submissions on these issues were extremely brief. The written submissions were limited to an assertion that 'the operative cause of the loss and damage was Mr Ardizzone's unreasonable reliance on the [Marketing Documents] as conveying the alleged representations, and his failure to undertake basic enquiries which would have revealed the existence of the clearing restriction. Mr Ardizzone is not entitled to any award of damages'.[460] Mr Coyle did not add anything of substance in his oral closing.[461] However, he did clarify that he was not suggesting by Issue 28 that, if I were to find there had been a breach of contract and/or misleading conduct, that Mr Ardizzone's conduct was the only relevant cause. He said that Issue 28 really went to Issue 35.[462]
4. For completeness I note that the Valentino parties had also pleaded that the plaintiff failed to mitigate his loss. By the end of the trial, each of the issues raised by this pleading had been effectively abandoned.[463]

1. The Valentino parties pleaded that Mr Ardizzone was responsible for any loss due to:

(1) his 'neglect to undertake appropriate searches of public registers';

(2) his 'failure to conduct investigations with the City of Gosnells or review the material in relation to the Maddington Kenwick Strategic Employment Area publicly available on the City of Gosnells website';

(3) his 'display, by his conduct, of a blatant disregard for his own interests'; and

(4) given that there was a 'prohibition' on clearing native vegetation, his 'disregard of, or failure to take legal advice as to, the relevant written law of the State of Western Australia'.

1. Despite pleading that Mr Ardizzone was responsible for any loss due to his 'neglect to undertake appropriate searches of public registers', the Valentino parties did not adduce any evidence of any particular register that, if searched, would have revealed the TEC on the Property.
2. There was evidence that, prior to the settlement date, there was no information available from Landgate regarding the existence of a TEC in relation to properties. The certificate of title for the Property did not indicate the existence of the TEC.[464]
3. There was evidence that the Department did not include the exact locations of occurrences of TECs on any public database.[465]
4. Accordingly, I reject the Valentino parties' submission that Mr Ardizzone was responsible for his loss because he did not search public registers. There is no evidence whatsoever that a search of public registers would have revealed the TEC.
5. In any event, as discussed later,[466] Mr Ardizzone, by his settlement agent, asked all the questions that would be asked by a reasonable purchaser.

1. Prior to the trial commencing, the defendants' pleading asserted that the classification of the vegetation on the Property as a TEC was a matter of public record prior to the settlement date.[467] The pleading was based on information on the websites of the Department and the City, including a version of the Tauss and Weston Report on the City's website.
2. This gave rise to Issue 12.
3. In Mr Cobby's opening address, he went through the version of the Tauss and Weston Report that was on the City's website. Tauss and Weston had provided two reports to the City; one full version and an edited version that could be made public. The public version had been edited to remove the precise locations of declared rare flora and TECs that Tauss and Weston had identified. It was the public version that was on the City's website.
4. Mr Cobby painstakingly demonstrated that it would have been extremely difficult for a person reading that report to discover that there was a TEC on the Property. The person would need to read approximately 150 pages into the report to locate Figure 11, which depicted the TEC areas on blocks that were not identified by lot or street number. Then the person would need to be able to identify that one of the blocks showing the existence of FCT 20a was the Property. Then the person would need to search through the report to identify what meaning was to be attributed to 'FCT 20a' and its possible consequences. Accordingly, even if a prospective purchaser thought to access the City's website, and thought to read the version of the Tauss and Weston Report that was on that site, it is highly unlikely they would have been able to find out that there was a TEC on the Property.
5. The evidence also showed that the precise locations of TECs were not published on the Department's website at any time.[468]
6. It was effectively conceded by the defendants that the classification of the vegetation on the Property as a TEC was not a matter of public record.[469] Issue 12 was struck out in the final list of issues.

1. The Valentino parties pleaded the 'blatant disregard' in par 15.3 of their defence. They pleaded that they relied upon the matters pleaded in pars 6, 8.5, 10 and 14 and said further that Mr Ardizzone's intention was to clear the vegetation irrespective of any relevant approvals that may be required by any authority.
2. Paragraph 6 asserted that Mr La Rocca had expressly told Mr Ardizzone of potential restrictions and the need for him to undertake his own enquiries as to the accuracy of the information in the fact sheet.
3. The particulars to par 6 referred to various statements Mr La Rocca claimed to have made to Mr Ardizzone in relation to clearing restrictions and approvals. I have found Mr La Rocca did not say anything like this.
4. The particulars also referred to the disclaimers in the fact sheet. The disclaimers in the fact sheet were in standard terms and small font, and do not support the pleaded assertion.
5. In addition, the particulars referred to an extract of a document said to have been provided by Mr La Rocca.[470] As far as I can tell, the extract was not the subject of any evidence, was not tendered and was not referred to in submissions. I have therefore disregarded it.
6. Paragraph 8.5, which alleged a waiver of cl 9.1(a)(1), was withdrawn during the trial.[471]
7. Paragraph 10 alleged that Mr Ardizzone was aware that approval was required before vegetation could be cleared 'but proceeded on the erroneous assumption that he could succeed in removing the vegetation with impunity irrespective of any relevant restrictions and forewent any reliance on the alleged Warranty'. In support of this pleading, the Valentino parties relied on Mr La Rocca's claim to have told Mr Ardizzone about needing approval and Mr Ardizzone's alleged response. The Valentino parties also relied on the fact that Mr Ardizzone cleared some vegetation without approval prior to the City Notice.
8. I have found that the conversations Mr La Rocca claimed to have had did not occur. The clearing Mr Ardizzone did prior to receiving the City Notice does not prove he knew anything prior to receiving it or that he was intending to clear vegetation unlawfully and deal with any consequences after he had done so. Further, as set out earlier,[472] I found that Mr Ardizzone did not intend to clear the vegetation irrespective of any relevant approvals that may be required by any authority.
9. Each of the substantive assertions raised in par 14 of Valentino's Defence were withdrawn.[473] Shortly before the hearing, Mr Coyle foreshadowed that he would seek to amend par 14.3(b) to allege Mr Ardizzone failed to mitigate his loss by failing to ask the Department to remap the TEC area 'in light of further clearing and degradation ... in response to which the Department would have reduced the mapped size of the TEC area'. However, after a significant amount of time had been spent on this issue, he did not press the amendment.[474]
10. Therefore, the Valentino parties' allegation that Mr Ardizzone was responsible for his loss because he blatantly disregarded his own interests is not supported by the matters pleaded.
11. In any event, there is nothing in the evidence to suggest that Mr Ardizzone, or a reasonable person in his position, would have had any reason to make enquiries of the Department at the time or make specific enquiry of the City on this topic.
12. Prior to settlement, Mr Ardizzone, by his settlement agent, asked the City various questions and then asked whether there was anything else about the Property which he should know. The City answered this last question at some length, including by saying that the Property was in a poultry farm buffer zone and within a particular pipeline buffer, there was an intention that the area would accommodate industrial development, and there was potential transport noise.[475] The answer made no mention of the TEC, nor did it give any indication that the City had limited the scope of its answer.
13. There was no evidence to suggest that it was standard practice, whether of settlement agents or solicitors, to make enquiries of the Department either prior to contract or settlement.
14. There was no suggestion that Mr Ardizzone's settlement agent had been negligent.

1. The final matter pleaded by the Valentino parties was Mr Ardizzone's 'disregard of, or failure to take legal advice as to, the relevant written law of the State of Western Australia', in light of the fact that there was a 'prohibition' on clearing native vegetation. As this was not addressed in submissions, it is not entirely clear what was being asserted. It appears to be an allegation that, because Mr Ardizzone did not know that there were restrictions on clearing native vegetation, regardless of whether it is in a TEC area, he caused his own loss.
2. Even if Mr Ardizzone should have known or found out about the restrictions on clearing native vegetation that is not within a TEC area, his ignorance of these restrictions did not cause any loss.

1. Although Issues 28 and 29 were raised only by the Valentino parties' pleading, the Agent parties made brief submissions on Issue 28.[476]
2. The Agent parties submitted that Mr Ardizzone formed his own false belief about clearing, and that he bought the land in haste without making any enquiries to find out if there were restrictions on any of his planned activities and without having the Property valued. The Agent parties submitted that none of the defendants' conduct was conduct of valuing the Property for the plaintiff. They submitted that Mr Ardizzone's decision to pay $1,800,000 was a consequence of his own beliefs and decision making.
3. Even if Mr Ardizzone acted more slowly, the evidence is that he would not have found out about the TEC. The information was not publicly available and was not disclosed by the City, despite the enquiries made by his settlement agent. There was no suggestion that his settlement agent had been negligent. There was no evidence that a valuer would have discovered the TEC. The valuation that was obtained by Mr Ardizzone's bank did not refer to the TEC.[477] A reasonable purchaser, acting without haste, would not have found out about the TEC.
4. I also note that the bank valued the Property at $1,800,000. Mr Hughes valued the Property, if it did not have a TEC, at the same amount.
5. Further, as set out earlier, if Mr Ardizzone had been told about the TEC, he would not have bought the Property.

1. Mr Ardizzone's loss was caused because he was not told about the TEC. He would not have bought the Property if he had been told about it.
2. In my view, Mr Ardizzone is not responsible, to any degree, for failing to find out that there was a TEC on the Property. A reasonable purchaser would not have found out.
3. Further, even assuming a reasonable purchaser must be taken to know the law (as to which no submissions were made) and would have known that there were restrictions on clearing native vegetation, I am not satisfied that a reasonable purchaser would have been able to identify that the vegetation in the TEC area on the Property was native vegetation within the definition of that phrase.[478] In any event, even if a reasonable purchaser should have been able to identify the vegetation as native vegetation, the presence of such vegetation would not have caused any loss, if it had not been in a TEC area. If it was in a TEC area, the loss was caused by the more stringent restrictions that apply to TECs. As noted earlier, in evaluating the restrictions that apply to the TEC area, the restrictions that apply to native vegetation are not relevant.[479]
4. Mr Ardizzone did not cause or contribute to his loss.

1. It was common ground that if I find that one or more of the Valentino parties are liable under s 18 and that one or more of the Agent parties are liable under s 18, the liability of the defendants would be apportionable.
2. Mr Ardizzone's claims under s 30 of the ACL would not be apportionable.[480] The claims under s 30 do not involve a contravention of s 18, as required by s 87CB of the Consumer Act.[481]

1. The liability of each concurrent wrongdoer is limited to an amount reflecting that proportion of the loss claimed that the court considers just, having regard to the extent of the defendant's responsibility for the loss.[482]
2. The principles to be applied were helpfully summarised by Allanson J in Orchard Holdings Pty Ltd v Paxhill Pty Ltd (as trustee for Paxhill Trust t/as Property People)[483] (citations omitted):

The task is similar to that undertaken in assessing contributory negligence. In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, Gibbs CJ, Mason, Wilson, Brennan and Deane JJ said:

'A finding on a question of apportionment is a finding upon a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds.'

The court will have regard to the degree of culpability, not moral blameworthiness, but the degree of departure from the relevant legal standard; and to the relative importance of the acts of each concurrent wrongdoer.

1. The only question of principle in issue is whether I am entitled to have regard to the fact that the Valentino parties received more for the Property than it was worth. Mr Hancy, for the Agent parties, submitted that I could. Mr Coyle, for the Valentino parties, did not contend otherwise.[484] However, Mr Cobby, representing Mr Ardizzone, said this would be inconsistent with the nature of proportionate liability, being a defence to a plaintiff's claim.
2. As pointed out in Orchard Holdings,[485] the proportionate liability legislation was designed to alleviate the perceived injustice in the growing number of actions against parties whose culpability was low, but who were singled out for action because of their capacity to pay large damages awards. The provisions were not designed to do more than that.
3. Mr Cobby submitted that, as proportionate liability is a defence to a plaintiff's claim, and because of the aim of the legislation, the proper approach was limited to the degree of culpability in the sense of the degree of departure from the relevant legal standard and to the relative importance of the acts of each concurrent wrongdoer.[486]
4. Mr Cobby did not suggest that the determination of this issue would affect Mr Ardizzone in any practical way. Given that, and given the Valentino parties' agreement that I could take into account that the Valentino parties received more for the Property than it was worth, I am able to deal with this issue briefly.
5. Mr Hancy relied upon Reinhold v New South Wales Lotteries Corp (No 2),[487] Dubai Aluminium Co Ltd v Salaam[488] and GEJ & MA Geldard Pty Ltd v Mobbs (No 2)[489] in support of his proposition.
6. In Reinhold, Barrett J endorsed what had been said in Dubai to the effect that an apportionment would not properly reflect the parties' relative responsibilities if the proceeds have all ended up in the hands of one party.[490]
7. In addition to the authorities cited by Mr Hancy, numerous other cases have expressly or implicitly endorsed an approach which takes into account any profit received by a wrongdoer from its conduct which caused the loss.[491]
8. While I have some reservations as to whether the fact that the profits ended up in the hands of one defendant is logically connected to the defendants' relative responsibilities, I would not conclude that this is plainly wrong.[492] Further, I have not had the benefit of full argument as to whether the requirement in s 87CD(1)(a) to determine what is just 'having regard to the extent of the defendant's responsibility' means that the court may not have regard to other matters. If the court is not so restricted, it would not be just to disregard the fact that one defendant received all of the benefit of the misleading conduct.
9. The Valentino parties received more than the Property was worth. I will take this into account.
10. The next question is how it should be taken into account.
11. Mr Hancy submitted, in effect, that the benefit received by the Valentino parties should be paid by them towards Mr Ardizzone's loss, and any remaining loss should then be apportioned between the Valentino parties on the one part and the Agent parties on the other. He did not provide any authority for this approach.
12. Mr Coyle submitted that I should instead simply take it into account as part of the 'balancing exercise'.
13. Section 87CD of the Consumer Act requires me to determine the amount reflecting that proportion of the loss claimed that I consider just, having regard to the extent of each defendant's responsibility for the loss. In my view, this is to be achieved by having regard to relevant considerations in a broad sense. A mathematical deduction of the benefit from the loss before any apportionment is made would not sit well with the statutory requirement.
14. The cases cited by the Agent parties did not address this issue. In those cases that I was able to find in which one wrongdoer received a benefit, or a greater benefit than another wrongdoer, the approach appeared to be to simply take any benefit into account in a broad sense as one of the relevant considerations.[493]
15. This was another matter I raised with the parties after reserving my decision. During the further hearing, Mr Hancy accepted that the proper approach was to take it into account in a broad sense, rather than as he had submitted initially.
16. However, he submitted that it was a 'very powerful factor'. Mr Hancy pointed out that, if it was not treated as a 'predominating factor', the wrongdoer who received a benefit may retain part of that benefit after they had paid what they were required to pay after liability had been apportioned.[494]
17. There is a great deal of force in this argument. However, I am required to assess what is just, having regard to the extent of each defendant's responsibility for the loss. Even though the purpose is to compensate the plaintiff for his loss, it may be said to be unjust if the more culpable wrongdoer was required to pay only a nominal amount. Similarly, it may be unjust if the wrongdoer whose actions were the main cause of the loss was required to pay only a nominal amount.
18. I accept it is a factor, and accept that, depending on the circumstances, it may be a powerful factor. However, it cannot override the need to determine what is just, having regard to the extent of each defendant's responsibility for the loss. Each case will turn on its own facts.

1. In a previous section, I set out my findings in relation to the defendants' failure to disclose the Letter to Mr Ardizzone.[495] For convenience, I will repeat, in abbreviated form, the relevant findings.
2. Mr Colby read the Letter around 2 January 2013. He did not disclose the Letter to Mr Ardizzone, or arrange for it to be disclosed, prior to the 16 January conversation because he understood that the Letter might impact upon the sale of the Property, and he did not want to disclose the letter to Mr Ardizzone before he had spoken to Mr La Rocca and knew what the impact might be. This was a deliberate decision not to disclose the Letter at that point. He only decided to disclose the Letter once he had been reassured by Mr La Rocca that it was nothing to worry about.
3. Mr La Rocca did not disclose the Letter after being asked to do so by Mr Colby. Neither of the Colbys made any effort to confirm that Mr La Rocca had disclosed the Letter.
4. Mr La Rocca's failure to disclose the Letter was deliberate. He knew Mr Ardizzone wanted a large area of land, and knew it was likely that Mr Ardizzone would seek to avoid the Contract if he knew about the TEC.
5. Mr Hancy accepted that Mr La Rocca and CRI should be dealt with identically. Mr Coyle did not suggest I should deal with the Valentino parties differently to one another.

1. I remind myself that moral blameworthiness is not a relevant factor in the assessment. Rather, it is the degree of culpability in the sense of the degree of departure from the relevant legal standard and the relative importance of the acts of each concurrent wrongdoer.
2. I consider that Mr La Rocca's conduct was a greater departure and of greater importance in all of the circumstances. In particular, if Mr La Rocca had done what Mr Colby asked him to do, the Letter would have been disclosed.
3. As against that, I take into account that the Valentino parties received substantially more than the Property was worth.
4. Weighing up all of the circumstances, I consider that it is just to apportion the liability equally between the Valentino parties on the one part and the Agent parties on the other.

1. The Statement of Claim alleged in the alternative to the s 18 claim that each of the defendants made false or misleading statements concerning the characteristics of the land, or the use to which the land is capable of being put or may lawfully be put, contrary to s 30(1)(e) or (f) of the ACL. Paragraph 26 alleged this against the Valentino parties. Paragraph 29 alleged this against the Agent parties.
2. Mr Ardizzone submitted that the s 30 claims would not succeed unless I found one or both of the alleged representations to be made out (and that any such representation was false or misleading).[496]
3. This submission overlooked the differences in pars 26 and 29 of the Statement of Claim. The basis for alleging that the Agent parties breached s 30 relied upon the alleged representations made by the Marketing Documents. The basis for alleging that the Valentino parties breached s 30 did not. Instead, Mr Ardizzone relied upon, among other things, the warranty in cl 9.1(a)(1) of the General Conditions.
4. In the further hearing on 22 January 2019, Mr Cobby mentioned the difference in the pleading.[497] Mr Coyle did not respond to this, or make any claim of having been surprised. During the trial, Mr Coyle did not address the s 30 allegation, beyond, in effect, repeating his submissions in relation to the s 18 submissions.[498]
5. It is not immediately obvious to me why the promise in cl 9.1(a)(1) would properly be characterised as a representation concerning the characteristics of land or the use to which the land is capable of being put or may lawfully be put. As there were no submissions on this question at all, I am not inclined to characterise it in that way. For this reason, I would dismiss Mr Ardizzone's claim under s 30 against the Valentino parties.
6. I dismiss Mr Ardizzone's claim under s 30 against the Agent parties because I found that the alleged first representation was not made and, to the extent that the alleged second representation was made, it was true.

1. The general principles to be applied were not in dispute, and were helpfully summarised by Mr Hancy in the Agent parties' written closing submissions.
2. In relation to the breach of contract, Mr Ardizzone is entitled to an award of damages that, so far as money can do, will put him in the position he would have been in if the Contract had been performed.[499] Mr Cobby said that, given the proper construction of cl 9.1(a)(1), Mr Ardizzone's position is to be compared against the position he would have been in if the contractual promise was true - that is, as if there was no TEC on the Property.[500] Mr Coyle did not seek to argue otherwise.
3. The amount of damages that may be recovered for misleading conduct should not be limited by analogies from the common law or equity.[501] However, in most cases of misleading conduct, the appropriate measure of damages is the measure in tort.[502] Where, as here, the misleading conduct caused the plaintiff to acquire an asset, a conventional measure of damage is the difference between the price paid and its true value at the time it was acquired.[503]

1. The Valentino parties submitted that, if there is a TEC on the Property,[504] then, until such time as an application for the grant of a clearing permit has been made and is refused due to the presence of a TEC, no actual loss has crystallised or been suffered by Mr Ardizzone. The Valentino parties submitted that this was because there is a discretion to grant a clearing permit and, in the circumstances, a permit may well be granted.[505]
2. I do not accept this submission. Mr Ardizzone suffered a loss, as a matter of historical fact, at settlement. His losses have crystallised. The Property was not worth what he paid for it. If he were to sell the Property tomorrow, it would be at the diminished value which the Property has as a result of the TEC area.

1. Subject to one qualification, the appropriate measure of Mr Ardizzone's loss, under both the contract claim and the misleading conduct claim, is what he lost by buying the Property for more than it was worth. The qualification arises as a result of subsequent events.
2. The general rule is that damages are assessed as at the date of breach or when the cause of action arose.[506] However, Mr Ardizzone claims damages based on a valuation of the Property which takes into account only those areas of the Property presently affected by the TEC and the restrictions imposed by the City.[507]
3. The main component of Mr Ardizzone's loss is the difference between what he paid for the Property and what it would have been worth at the time if the areas affected by the TEC were the same then as they are now. I dealt with this issue in the discussion of the valuation evidence. This loss was $551,120.
4. Mr Ardizzone suffered other losses as a consequence of the defendants' conduct.[508]
5. First, Mr Ardizzone borrowed more than he would have needed to borrow to purchase the Property if he had not overpaid for it. The interest paid on that additional amount is a loss he suffered, since he lost the use of the funds required to pay that additional interest.
6. Second, Mr Ardizzone has incurred costs associated with the protection and maintenance of the TEC.
7. Third, he has also lost the additional financing costs incurred because he overpaid for the Property.
8. None of the defendants challenged any of these claims in their submissions, other than Mr Coyle's bald submission that Mr Ardizzone had not established an entitlement to the damages in the amounts he claimed.[509]
9. I accept the evidence of Mr Ardizzone and Ms Flight[510] (whose evidence on this issue was not challenged) and the contents of the documents that were admitted into evidence by consent. I accept that Mr Ardizzone suffered these losses. The precise quantum of the losses in relation to the additional interest and financing costs will need to be recalculated to reflect my finding as to the extent to which he overpaid for the Property. It is appropriate that the parties have an opportunity to be heard on the quantum of the loss that flows from the recalculations.

1. In their written submissions,[511] the Agent parties asserted that, in the assessment of value, events can be taken into account even though the likelihood that they would have happened is less than 50% or they were no more than possibilities, citing Sellars v Adelaide Petroleum.[512]
2. In oral submissions, Mr Hancy contended that the TEC area had some value because the situation might change in the future.[513] Mr Hancy said that a permit might be granted. He noted, for example, that the TEC on the Property comprised a very small percentage of the overall FCT 20a remaining. He said that, in those circumstances, it would seem 'unfair' if a permit to clear the TEC was refused. Mr Hancy also said it was not possible to rule out the possibility that some compensation would be paid in the future.[514]
3. Mr Hancy said he was not saying that any of these outcomes were likely or even potentially going to happen, but that they could not be ruled out.[515]
4. Mr Cobby submitted that cases like Sellars did not apply to Mr Ardizzone's loss, as it was a matter of historical fact. Mr Cobby submitted that Mr Ardizzone was therefore entitled to damages for the extent of the loss he suffered.[516] Mr Cobby pointed out that the value of any piece of land could change in the future because, for example, the land could be rezoned or be affected by changes to its surrounds.[517] Mr Cobby said that, if the defendants sought to argue that Mr Ardizzone could mitigate his loss by obtaining a permit to clear the TEC land, it was for the defendants to adduce the necessary evidence.[518]
5. In reply, Mr Hancy did not challenge these submissions. He said he was not relying on cases like Sellars

to say that there should be any reduction based on the ordinary rule that would apply in a case like the Potts v Miller[519] type approach of difference in value and price, but what we're saying is ... in any case of valuation, you have to distinguish between is it a balance of probabilities issue or is it a less than a balance of probabilities issue. That's all I refer to those cases for. But - and as to the basic principle of assessment, it's primarily value/price comparison.[520]

1. I assume from this that Mr Hancy was merely submitting that a hypothetical purchaser would have taken into account the possibility that a permit might be granted in the future or that compensation would be paid. If I am right about that, I have allowed for the first possibility in the assessment of value, as indicated earlier.[521] I would not make any allowance for the second. In my view, the hypothetical purchaser would disregard that possibility as entirely speculative.
2. If I am wrong about what Mr Hancy intended his final position to be, and he did intend to assert that the value should be discounted to allow for these future possibilities in the sense discussed in Sellars, I would reject that for the following reasons.
3. First, Mr Ardizzone's loss is a matter of historical fact. At the time that Mr Ardizzone purchased the Property, there was a TEC area that could not lawfully be cleared. As a result of the TEC area, the value of the Property was substantially less than what he paid. His loss crystallised at that time. Mr Ardizzone is therefore entitled to damages for the full extent of the loss he suffered.[522]
4. Second, I have already allowed for the possibility that a permit might be granted in the assessment of value.[523] If the assessment of loss was discounted to allow for the same possibility, there would be 'doublecounting'.
5. Third, I would not make any allowance for the possibility of compensation in the future. This was entirely speculative.
6. For completeness, I mention a submission made by Mr Coyle 'in reply'.[524] Mr Coyle submitted that the loss should be evaluated in the context that the TEC might be degraded in the future.[525] I reject this submission for the same reasons as I gave for rejecting Mr Hancy's submissions. To the extent that Mr Coyle suggested that there had been some degradation in the past,[526] it was not open to him to make this suggestion. The Valentino parties foreshadowed an application to amend their pleading to allege, in effect, that the TEC had been degraded after the remapping in 2014, so as to further reduce the size of the TEC area. However, they ultimately withdrew this application.[527]

1. I have set out my conclusions in most sections of the above reasons. In summary, I found as follows.
2. In relation to the contract claim:

(1) In notifying Valentino of the TEC area on the Property, the Letter communicated a 'Government Requirement', so as to fall within cl 9.1(a) of the General Conditions.

(2) Clause 9.1(a)(1) was a contractual promise by the vendor that there was not, and there would not be as at the settlement date, a Government Requirement in relation to the land, to the vendor's knowledge. It was an intermediate term of the Contract.

(3) Valentino knew of the Letter, and therefore knew of the Government Requirement, prior to settlement. It thereby breached cl 9.1(a)(1).

(4) Valentino's breach caused loss to Mr Ardizzone.

1. In relation to the misleading conduct claim under s 18 of the ACL:

(1) The Marketing Documents provided to Mr Ardizzone did not make the alleged first representation and the alleged second representation was true (although remain relevant to the assessment of whether the defendants' failure to disclose the Letter was objectively misleading).

(2) The defendants' failure to disclose the Letter was objectively misleading or deceptive in the circumstances. The circumstances gave rise to the reasonable expectation that, if there was a potential impediment to the industrial use of part of the land, and that impediment was unusual and not insignificant, it would be disclosed. The TEC was a significant and unusual impediment.

(3) The defendants' conduct was in trade or commerce.

(4) The defendants' conduct caused Mr Ardizzone to suffer loss or damage. Mr Ardizzone did not cause or contribute to his loss.

(5) The loss should be apportioned equally between the Valentino parties on the one part and the Agent parties on the other.

1. In relation to the misleading conduct claim under s 30 of the ACL:

(1) As the Marketing Documents provided to Mr Ardizzone did not make the alleged first representation and the alleged second representation was true, Mr Ardizzone's claim against the Agent parties under s 30 of the ACL fails.

(2) In relation to Mr Ardizzone's claim against the Valentino parties under s 30 of the ACL, I am not satisfied that the promise in cl 9.1(a)(1) is properly to be characterised as a representation concerning the characteristics of land or the use to which the land is capable of being put or may lawfully be put. As a result, Mr Ardizzone's claim against the Valentino parties under s 30 of the ACL fails.

(1) The main component of Mr Ardizzone's loss is the difference between the value of the land and the price paid. However, Mr Ardizzone claims damages based on a valuation of the Property which takes into account only those areas of the Property which are presently affected by the TEC and the restrictions imposed by the City. On that basis, the reduction in value of the Property attributable to the existence of the TEC is $551,120.

(2) Mr Ardizzone suffered other losses as a consequence of the defendants' conduct. Mr Ardizzone has incurred the costs associated with the protection and maintenance of the TEC. Mr Ardizzone borrowed an amount greater than what he would have needed to borrow to purchase the Property if he had not overpaid for it. The interest paid on that additional amount is a loss he suffered. Further, Mr Ardizzone lost the additional financing costs incurred because he overpaid for the Property.

1. The quantum of the last two of those losses is affected by my finding as to the difference between the value of the land and the price paid. Accordingly, I will hear from the parties as to the proper quantum of damages to reflect my findings and the recalculation required.

1. In the counterclaim, the Valentino Parties seek against Mr Ardizzone and the Government Parties:

(1) a declaration that at no relevant time 'has a TEC covered any part of the Property'; and

(2) a declaration that the Letter sent to Valentino did not take effect as a notification that the area referred to in the Letter constituted an ESA within the meaning of s 51B(1) of the EP Act.

1. Valentino's pleading and opening submissions raised a number of issues which were withdrawn during the trial.[528] Three issues remained:

(1) Did the Minister, as a matter of fact and law, 'determine' that Banksia attenuata woodlands over species rich dense shrublands, FCT 20a, is a 'threatened ecological community' within the meaning of that term as defined in cl 3 of the ESA Notice?

(2) Was an area of the Property, as a matter of fact, covered by a TEC as at 3 December 2012?

(3) If the answer to question (1) is yes, did the Letter, as a matter of fact and law, notify Valentino of the area on the Property covered by the TEC within the meaning of cl 4(5)(b) of the ESA Notice?

1. The first declaration was sought on the basis that the answer to Issue 2 was no.
2. The second declaration was sought on the basis that the answer to either Issues 1 or 3 was no. If the answers to both were yes, then the area was declared to be an ESA for the purposes of pt V div 2 of the EP Act by the ESA Notice when Valentino received the Letter.
3. Issues 1 and 3 involve the proper construction of the ESA Notice. It is convenient to set out the general principles that apply before discussing the individual issues.

1. The general principles of statutory construction were not in dispute.
2. As was recently said by the Court of Appeal in Mohammadi v Bethune,[529] '[s]tatutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'.
3. The general principles with respect to the construction of statutes apply to the construction of subsidiary legislation. The relevant context includes the statute under which the legislation has been made.[530]
4. In relation to Issue 3, the Valentino parties submitted that the presumption against interference with vested property rights applied to the construction of the notice that was required to be given by cl 4(5)(b) of the ESA Notice. I will address that submission when dealing with Issue 3.

1. Issue 1 is whether the Minister, as a matter of fact and law, 'determined' that Banksia attenuata woodlands over species rich dense shrublands, FCT 20a, is a 'threatened ecological community' as defined in cl 3 of the ESA Notice.
2. The main thrust of the Valentino parties' submissions was that 'what the Minister was being asked to do, and what the Minister did, falls well short of something that would be a determination within the meaning of the [ESA Notice]'.[531] They submitted, in essence, that what the Minister did in this case was merely approve an informal process.

1. Clause 3 of the ESA Notice defines the term 'threatened ecological community' to mean 'an ecological community that has been determined by the Minister to be a threatened ecological community and is referred to in the list of threatened ecological communities maintained by the [CEO of the Department]'.

1. The ESA Notice does not define what is meant by 'determined' in cl 3. There is an extended definition of 'determination' in cl 4(7),[532] but it is expressly limited to cl 4(5) and (6). There is nothing to suggest that 'determined' in cl 3 was intended to have any extended, limited, special or technical meaning.
2. Nor is it defined in the EP Act, under which the ESA Notice was made.[533] There is also nothing in the EP Act to suggest that it was intended to have any special meaning. On the contrary, it appears from the use of the word in the EP Act that it was intended to have its ordinary meaning.[534]
3. It is therefore appropriate to give the word 'determined', as it appears in the ESA Notice, its ordinary meaning.[535]
4. Both the Valentino parties and the Government parties offered dictionary definitions of the word 'determined'.
5. The Macquarie Dictionary Online relevantly defines 'determined' to mean: 'decided; settled; resolved'. The Government parties submitted that this was the appropriate definition in this context.
6. The Valentino parties submitted that a more appropriate definition was found in the Collins Australian Dictionary 2011 edition, which defined 'determine' to include 'to settle or decide (an argument, question, etc) conclusively as by referring to an authority'.[536] They submitted that, in light of the purpose and effect of the ESA Notice, the word 'determined' must mean something more than the 'general concept of deciding to do something. It must be something with a little bit of precision and formality about it'.[537]
7. As the word 'determined' in the ESA Notice is followed by the words 'by the Minister', the difference between the parties is immaterial. On either definition, the word 'determined' in this context requires something to be decided or settled by a person in authority, the Minister.
8. For the same reason, it would be tautological to define 'determined' in this context to require something to be decided or settled by a person in authority.
9. Accordingly, in my view, the word 'determined' in cl 3 of the ESA Notice means decided or settled.

1. The Government parties pointed out that it is common for ministers to make final decisions on matters on the basis of expert advice and recommendations received from the departments they oversee and to make, or evidence, those decisions by endorsing their signature on a briefing note containing the department's recommendations. The Government parties submitted that that is what the Minister did in this case. The Government parties submitted that, by approving the recommendation to approve the current list of TECs (which had been approved by the Department under the former process), the Minister determined that the ecological communities in the list should be identified and listed as TECs.
2. The Valentino parties did not dispute that this is the way in which ministers commonly make decisions. However, they submitted that what the Minister did in this case was merely approve an informal process and an informal list, and that she was not being asked to make a decision that would have the force of law. The Valentino parties say that, in approving the process and the list, the Minister could not be said to have 'determined' that the ecological communities set out in the list were TECs.[538]
3. To resolve this issue, it is necessary to consider the facts in detail. I gratefully acknowledge that the following section reproduces in part, and otherwise draws from, the helpful summary provided by the Government parties. The Valentino parties did not dispute the Government parties' summary, but referred to some additional matters.[539] I have included those additional matters where relevant, and added other matters that I consider to be relevant.

1. In the discussion of the original action, I set out the history that led to the sending of the Letter.[540] It was there noted that, in 2001, the Department asked the Minister to endorse the list of TECs that had been developed to date.
2. The Department sought endorsement by sending two briefing notes to the Minister.

1. The first briefing note[541] was dated 12 June 2001. It was entitled 'Proposed Process for Ministerial Endorsement of the Western Australian List of Threatened Ecological Communities and Amendments to this List, as well as Related Matters'.
2. The first briefing note:

(1) referred to the Department's legislative responsibility for conserving Western Australia's biological diversity;

(2) advised that a key means for conserving biodiversity involves identifying elements that are under threat of extinction and putting in place special protection and conservation measures to ensure that these elements do not become extinct;

(3) advised that recent advances in biodiversity conservation had recognised the importance of conserving and protecting key ecological communities;

(4) advised that those ecological communities threatened with extinction (TECs) were being progressively identified and specially protected around Australia;

(5) noted that other Australian jurisdictions had introduced statutebased measures to specifically protect identified TECs;

(6) noted that Western Australia currently did not have any legislation specifically providing for the conservation of TECs, and that it was intended that a legal means to cover the special protection and conservation of TECs would be identified in the proposed biodiversity conservation legislation;

(7) said that the conservation needs of TECs could still be recognised through decisions and assessments made by environmental and planning agencies under other legislation;

(8) advised that, since 1994, the Department had implemented a nonstatutory process for identifying, informally listing and conserving TECs in Western Australia, which was overseen by the Department's 'Western Australian Threatened Species and Communities Unit';

(9) advised that, in 1998, the Department had established the Threatened Ecological Communities Scientific Advisory Committee (TECSAC) made up of people with specific expertise in ecological communities to advise on which ecological communities should be considered threatened;

(10) advised that TEC recommendations made by the TECSAC were considered, and endorsed by, the Department's Director of Nature Conservation and then entered onto the Department's TEC database;

(11) advised that the Department's TEC database had become 'the Western Australian list of TECs';

(12) advised that the Executive Director considered it appropriate to change the procedure in place for TEC consideration and approval in Western Australia so as to make the Minister responsible for the final approval of the State list of TECs, and any changes to this list;

(13) said that, while it was highly desirable that the process of TEC identification and special State protection of listed TECs be covered by the proposed biodiversity conservation legislation, it would be inappropriate to await that legislation before updating the TEC consideration and listing process; and

(14) referred to the Minister's proposed role in the approval and maintenance of an official, but nonstatutory, list of TECs.

1. The briefing note recommended that the Minister approve various matters 'on the basis that they are interim arrangements pending the development of the proposed biodiversity conservation legislation and whatever threatened ecological community provisions it may contain'. The matters recommended for approval included:
   1. The proposal for a Ministeriallyapproved nonstatutory Threatened Ecological Community listing and ranking process as detailed in Attachment 1;
   2. The current list of WA TECs approved by [the Department] under the former process and detailed in Attachment 3.
2. Attachment 1 to the first briefing note was headed 'Recommended Procedures for Non Statutory Threatened Ecological Community Listing and Threat Assignment in Western Australia', and set out nine recommended procedures, including that:

The Ministeriallyapproved list of TECs is published on [the Department's] NatureBase Internet website and made freely available. Precise location details of TECs would only be provided as required for specific environmental assessments, investigations and the like. All land owners/managers are formally advised of the location of any listed TEC on the property they manage and also receive some conservation management advice for that TEC by the [Department].

The [Department's Threatened Species and Communities Unit] will maintain the official TEC list and database ...

1. Attachment 3 to the first briefing note was headed 'List of Threatened Ecological Communities on WA TEC Database, 28 March 2001', and listed various FCTs and other ecological communities under various headings. The first item under 'Endangered' was 'SCP 20a: Banksia attenuata woodlands over species rich dense shrublands'.

1. After receiving the first briefing note, the Minister asked the Department to answer a number of questions.[542]
2. The Department provided the Minister with a second briefing note, dated 13 September 2001, addressing those questions.[543] The second briefing note enclosed a copy of the first briefing note.
3. The second briefing note stated that, as there was no formal legislative process in place for protecting TECs in Western Australia, the Commonwealth could list TECs without consultation with Western Australia. It said this was a means by which the Commonwealth could make decisions or take action that may affect the communities. It said that, given the Commonwealth's practice of adopting the State's informal listings under its formal legislation, it was inappropriate to continue with the current informal process.
4. The second briefing note said that there will need to be a State legislative process but that, in the interim, 'Ministerial level consideration and endorsement of State identified TECs (rather than Departmental endorsement alone) is highly desirable'. It said that this would 'help to ensure that all necessary Government consideration is given to TEC listing proposals, prior to these becoming available for Commonwealth adoption' (emphasis added).[544]
5. The second briefing note then addressed the Minister's questions.
6. It identified two issues in relation to the Minister's first question:

(1) Are nonstatutory mechanisms for conserving TECs on private land (such as the informal list) effective?

(2) Do formal powers backed by legislation result in a backlash, so that expected gains in conservation do not occur?

1. In addressing the first issue, the second briefing note stated that landowners may have approached conservation suggestions positively because they were not compelled to accept them. It concluded that, while specific legislation is desirable, it had not prevented positive gains.
2. In addressing the second issue, the second briefing note stated that, although there was no specific State legislation for protecting TECs, levels of formal protection had increasingly been provided within the development assessment processes under, among other things, the EP Act. It said that the 'transition from totally voluntary mechanisms for conservation of identified TECs to the use of existing legislation implemented by other departments has been quite smooth'.
3. The second briefing note concluded with the recommendation:

That the nonstatutory procedures for conserving TECs, strengthened by Ministerial approval for listing and threat category, and using available measures under other State legislation, as proposed to you by this Department on 12 June 2001, be approved.

These approved procedures are to be seen as interim, pending passage of a State Biological Diversity Conservation Act.

1. On 8 November 2001, the Department received back from the Minister the second briefing note and the enclosed copy of the first briefing note. On the second briefing note, the Minister had written 'Approved' and 'See 1st briefing note' before signing the document and recording the date of 6 November 2001.[545] The enclosed copy of the first briefing note had been stamped 'Approved' and was endorsed with the Minister's signature and the date. Above the stamp, each of the Department's recommendations had been ticked by the Minister.[546]

1. The Valentino parties submitted that the Department asked the Minister to approve a proposal for an informal arrangement in the absence of a statutory regime and to approve a list created under a former informal process. They submitted that the Department was not asking the Minister to make a decision that would have the force of law, either under statute or as an exercise of executive power.[547]
2. The Valentino parties referred to statements in the first briefing note to the effect that the Minister was asked to approve a list that had been approved by the Department under the former process, being a process of 'informally listing'. They asserted that the Department was indicating the list had, and would have, no 'force or effect at law'.[548]
3. Further, the Valentino parties referred to the statement in the first briefing note that legislation was expected to be introduced which would provide a 'legal means' to protect TECs. They submitted that this showed that what the Department was asking the Minister to do 'was something falling short of employing "a legal means" '.[549]
4. The Valentino parties submitted that, therefore, the Minister was not being asked to make a determination that would have the force of the law, but to merely approve an informal list of no legal effect. They submitted that the Minister was not asked to, and did not, make a determination that the ecological communities set out in the list were TECs.
5. In relation to the second briefing note, the Valentino parties submitted that it further demonstrated that the Minister was being asked to do something which would not have legal effect.
6. They referred to the statements regarding the nonbinding nature of the informal list process, which noted that landowners may have approached conservation suggestions positively because they were not compelled to accept them. They submitted that it was

being reinforced to the Minister that the endorsement that she is being asked to give to the nonstatutory and cooperative mechanisms employed by the Department does not involve a determination that has the force of law - because that would be inconsistent with the notion that there will remain no compulsion upon landowners to accept arrangements suggested by the Department for conservation of a TEC on their land.[550]

1. The Valentino parties asserted that the third bullet point on page 2 of the second briefing note

again reinforces that the Minister is being told that unless and until specific State legislation is passed, TECs will not have 'legal protection' but that positive gains can nevertheless be achieved, i.e. through the nonstatutory and cooperative mechanisms the Department has referred to.[551]

1. Further, the Valentino parties asserted that comments in a subsequent briefing note, sent the following year, supported their submissions.[552] In the subsequent note, the Department referred to the listing of the TECs as 'informal listing'.[553]
2. In oral submissions, Mr Coyle clarified the position of the Valentino parties. He made it plain that he was not asserting that, because the Minister was not exercising a statutory power, the Minister did not make a 'determination'. He made it plain he accepted that the Minister could, by executive act, make a 'determination' that an ecological community was a TEC. However, he submitted that the Minister was not being asked to determine this, but was merely being asked to approve an interim, informal arrangement, and was being told that her approval would not have any statutory or executive force or effect. He said that, if the briefing note had been worded differently, the Minister's approval may well have constituted a 'determination' for the purpose of the ESA Notice. Mr Coyle submitted, however, that the Minister was merely being asked to give her endorsement, 'being of some comfort in dealings with the Commonwealth about their arrangements under their legislation'.[554]

1. I accept that the Department did represent (accurately) to the Minister that the then current arrangement, of an 'informal list', did not have specific statutory force.
2. I do not accept, however, that the Department was asking the Minister to do something that would be of no legal force, to merely participate in an existing informal nonlegally binding process to give 'some comfort'. Rather, the Department was asking the Minister to, among other things, determine what communities should be placed on the TEC list.
3. First, I do not share the Valentino parties' view of the Department's statement that landowners may have approached conservation suggestions positively because they were not compelled to accept them. Immediately after referring to the noncompulsion, the second briefing note went on to consider whether there had been any backlash from the 'levels of effective formal protection' increasingly provided under the development assessment processes. It said that the 'transition from totally voluntary mechanisms for conservation of identified TECs to the use of existing legislation implemented by other departments has been quite smooth'. In providing this information, the Department was reassuring the Minister that the movement away from voluntary mechanisms (that had already occurred) had not caused a community backlash.
4. Second, in this same section, the briefing note explained why, even though there was no specific legislation protecting TECs, there was effective formal protection provided under assessment processes in the EP Act and by planning authorities.
5. In exercising its discretionary powers under the EP Act to assess and advise the Minister in respect of a proposal, the Environmental Protection Authority (EPA) considers, where relevant, the identification and protection of any TECs which may be affected by the proposal. This is also taken into account by the WAPC and local governments when developing State planning policies and assessing subdivision and development applications.[555]
6. I also reject the Valentino parties' assertion that the third bullet point on page 2 of the second briefing note 'again reinforces that the Minister is being told that unless and until specific State legislation is passed, TECs will not have "legal protection" '.[556] The third bullet point states:[557]

Thus, while it is desirable to have specific State legislation that provides clear standards for conserving, and legal protection to, TECs, the absence of legislation has not prevented positive gains in this field to date.

1. This is not a statement that TECs do not have legal protection. It is a statement that it would be desirable to have specific State legislation that provides legal protection. From the context of the briefing note as a whole, it is clear that the Department considered that TECs had legal protection as a result of, among other things, legislation not specifically aimed at TECs. In particular, immediately following the third bullet point is the heading 'Forms of legally enforceable conservation measures for TECs and their implications'. The first bullet point under that heading begins:[558]

Although no specific legislation for protecting TECs exists in WA, levels of effective formal protection have increasingly been provided under the development assessment processes pursuant to [the EP Act] as well as [by planning authorities].

1. Third, the briefing notes were proposing a new process.
2. The first briefing note specifically recommended that the Minister approve (emphasis added):
   1. The proposal for a Ministeriallyapproved nonstatutory Threatened Ecological Community listing and ranking process;
   2. The current list of WA TECs approved by [the Department] under the former process.
3. In my view, the Department was asking the Minister to approve a new process, which would include a ministerially-approved list of TECs, to replace 'the former process'.
4. Fourth, the Department was asking the Minister to approve, under the new process, what the Department had approved under the former process. In other words, the Department was asking the Minister to approve the identification of the ecological communities in the list as TECs worthy of conservation, following the new process the Department intended to follow to conserve them.
5. Fifth, the context shows that the Department was asking the Minister to be the person who would determine what communities should be on the TEC list.
6. The request was made in a statutory context where the Minister was specifically empowered to direct and control the Department in the performance of its functions.[559]
7. It was also made in the context of the first briefing note stating that the Executive Director considered it appropriate to change the procedure so as to make the Minister responsible for the final approval of the State list of TECs. It described the list that would be maintained as 'the official TEC list'.
8. Further, it was made in the context of the second briefing note, which explained why it was important that the decision as to which ecological communities should be placed on the list should be made by the Minister. The Department said, in effect, that because the Commonwealth would adopt any TEC placed on the list and thereby would have a means to interfere in Western Australian ecological communities, it was appropriate that State government consideration be given to which matters are included on the list. It is plain that the Department was recommending that the determination of which ecological communities should be placed on the TEC list should be made by the Minister.
9. Sixth, in the briefing notes, the Department told the Minister that she should approve the identification of the ecological communities in the list as TECs worthy of conservation, and why.
10. The Department explained that it had established a committee of people with specific expertise to advise on which ecological communities should be considered threatened. The committee's recommendations were then considered by the Department's Director of Nature Conservation and, if endorsed, were then entered onto the Department's TEC database.
11. The Department explained why it considered it appropriate that ministeriallevel consideration and endorsement (rather than Departmental endorsement alone) was highly desirable, due to the Commonwealth practice of adopting any TEC placed on the list.
12. Seventh, I do not accept that comments made in a subsequent briefing note are relevant to evaluating what the Minister did by approving the recommendations in the first two briefing notes. In any event, in my view, the subsequent briefing note used 'informal listing' to mean a listing that was not supported by specific legislation.

1. The Minister accepted the Department's expert advice. By recording her approval of the briefing notes and recommendations, the Minister evidenced her decision to approve the recommendations.
2. The fourth item recommended in the first briefing note was to approve the current list of TECs approved by the Department under the former process. The Minister's decision to approve this recommendation was a decision that the listed ecological communities were TECs and were worthy of conservation under the proposed new process.
3. This is further confirmed by her decision to approve the first item recommended - the proposal for a ministeriallyapproved list of TECs. Her decision to approve this recommendation was a decision that the list would contain those ecological communities that she had decided were TECs.
4. It is further confirmed by her decision to approve the fifth item recommended - the nine proposed new additions to the list of TECs, recommended by the TECSAC and supported by the Department's Acting Director of Nature Conservation. Her decision to approve this recommendation was a decision that those nine ecological communities were TECs.
5. In approving the list of TECs, the Minister 'decided', 'settled' and 'resolved' that the ecological communities in the list were TECs.
6. Accordingly, the ecological communities referred to in the list were 'determined' by the Minister to be TECs, within the meaning of that word in cl 3 of the ESA Notice, by the Minister's endorsement of the briefing notes.
7. The list included 'SCP 20a: Banksia attenuata woodlands over species rich dense shrublands'. Therefore, the Minister determined that this was a 'threatened ecological community' within the meaning of cl 3 of the ESA Notice.
8. This conclusion is reinforced by the fact that, on the Valentino parties' construction, there would be no TECs for the purpose of the ESA Notice and cl 4(1)(e) of the ESA Notice would have no work to do, as there would not be any areas covered by a TEC as defined.

Issue 2 - was an area of the Property covered by a TEC?

1. Issue 2 is whether an area of the Property was, as a matter of fact, covered by a TEC as at 3 December 2012.
2. I earlier set out the history that led to the sending of the Letter to Valentino on 3 December 2012, including the survey conducted by Tauss and Weston. It will be recalled that Tauss and Weston reported that there was a TEC on the Property, and mapped the area.
3. I will later discuss Tauss and Weston's methods in detail. For now, it is sufficient to note that they established a square shape of 10 m by 10 m, being 100 sqm (called a 'quadrat') on the Property which was representative of a larger area of vegetation (Area). That quadrat was identified as 'Site 22' or 'Site 22Q'[560] in their study. Tauss and Weston assigned the vegetation on Site 22 to FCT 20a, and mapped the Area around the quadrat to indicate the total area of FCT 20a on the Property. The Area is identified in Figure 11 of their report as an irregular shape of approximately 7,000 sqm.[561]
4. Subsequently, an expert botanist working in the Department, Ms English, reviewed the Tauss and Weston Report and satisfied herself that it was appropriate to list the Area in the Department's database as an area containing FCT 20a (referred to as 'SCP 20a' in the database).
5. The Valentino parties submitted that Tauss and Weston were wrong to conclude that the vegetation was FCT 20a. They submitted that the Tauss and Weston Report was flawed in numerous respects and that there was no scientifically valid basis upon which it could be concluded that the vegetation was FCT 20a.
6. It was common ground[562] that the Valentino parties bore the burden of proving that:

(1) Tauss and Weston's conclusion that the vegetation in the Area should be assigned to FCT 20a was not justified; and

(2) the Area was not, as at 3 December 2012, covered by the TEC known as SCP 20a and therefore Ms English erred in concluding that it was covered by SCP 20a and sending the Letter.

1. In considering these issues, it is important to keep in mind that the Tauss and Weston Report was written by botanists for a specific purpose and for a specific audience. It was not written as an expert report to be relied upon in a court. An expert report for court may be rendered inadmissible or of little weight if it fails to, among other things, fully disclose the reasoning process and materials relied upon. The Tauss and Weston Report is not to be judged in the same way.
2. For this reason, I will focus my attention on the comments and criticisms of the experts who gave evidence, rather than on submissions made by the Valentino parties which were not supported or commented on by the experts.
3. Three environmental experts gave evidence. Two were called by the Valentino parties - Dr van der Moezel and Dr Mattiske. The Government parties called Mr Keighery.
4. All three were highly qualified, experienced environmental experts. I am satisfied that all three were endeavouring to give me their honestly held opinions.
5. All of the experts had attended the Property and made observations. However, none had conducted a formal survey.
6. Dr van der Moezel said that he attended the Property purely to establish, as he had been asked, whether the vegetation was native vegetation.[563]
7. Dr Mattiske said that her purpose in attending the Property was to walk around and look at the vegetation, not to carry out a formal survey.[564]
8. Mr Keighery was one of the authors of the Gibson and Keighery Report. Mr Coyle for the Valentino parties said 'We don't quibble ... with the point that [Mr Keighery] was peculiarly suited to answer some questions because he had a role in some of the history'.[565]
9. Of the three, Dr Mattiske was the most critical of Tauss and Weston's conclusion. Dr van der Moezel was described by Mr Coyle as 'a fencesitter'.[566] Mr Keighery was supportive of Tauss and Weston's conclusions.

1. As noted earlier, a 'floristic community type' (FCT) is a way of naming a particular collection of plants that occur together in a particular area.
2. The manner in which FCTs are assessed was helpfully summarised in the Government parties' submissions,[567] and not disputed by the Valentino parties. It is sufficient to note the following.
3. In order to assess the FCT of an area of vegetation, the recommended method is to:

(1) establish and survey one or more quadrats of vegetation in the broader area. A 'quadrat' is a square of fixed shape;

(a) to ensure that they capture vegetation that is representative of the vegetation in the broader area that is being assessed and is the best quality vegetation available to be surveyed; and

(b) to avoid the boundary or transition zone between vegetation units;

(4) critically assess the results of the statistical analysis and make assessments, based on field observations and expertise, as to the conclusions that can be drawn based on that analysis regarding the broader area of vegetation.

1. As noted earlier, five botanists, Gibson, Keighery, Keighery, Burbidge and Lyons (Gibson and Keighery) conducted a study of the FCTs of the Swan Coastal Plain (SCP). In 1994, they published the Gibson and Keighery Report.
2. The Gibson and Keighery Report identified 43 FCTs of the SCP. One of these was named 'Banksia attenuata woodlands over species rich dense shrublands' and given the numerical identifier '20a'.

What was the basis upon which Gibson and Keighery identified the FCTs?

1. Gibson and Keighery identified the FCTs based on a purely floristic method of vegetation classification. This method is based on the composition of the plant species in the site. It does not take into account vegetation structure data (such as the height and foliage cover of each layer) or the quantity or abundance of any particular species.[568]
2. The FCTs were identified by comparing the composition of all of the species in each of the surveyed quadrats with the composition of all of the species in each of the other surveyed quadrats and identifying patterns and statistical similarities in species composition in the quadrats on the different sites.[569]
3. The patterns and similarities were identified using special computer software known as 'PATN'. This software uses complex, but standard, mathematical algorithms to identify 'clusters' of sites that share similar floristic composition.[570]
4. Only presence/absence data of all vascular flora (regardless of height and cover class) are included in the analysis.[571] Each species in an FCT is given equal weighting. Trees are not counted as more important than small herbs.[572]

1. Gibson and Keighery also recorded a structural description of the vegetation at each of the quadrats they surveyed. They considered the extent to which their floristic classification correlated with vegetation structure and with vegetation complexes previously mapped by others.
2. Gibson and Keighery said that the floristic classification showed very poor correlation to vegetation structure and poor correlation to previously mapped vegetation complexes. They noted that their results were consistent with the conclusion of another expert that 'in areas of great species or vegetation richness, floristically based classificatory methods appear the most appropriate to describe the full vegetation variation which is an essential prerequisite to the development of adequate conservation planning'.[573]
3. Although the FCTs identified by Gibson and Keighery were identified solely on the basis of floristic composition, they used references to structural elements when labelling the various FCTs to help distinguish them from one another.
4. For example, Gibson and Keighery named FCT 20a as 'Banksia attenuata woodlands over species rich dense shrublands'. Both 'woodlands' and 'dense shrublands' relate to structural elements. Most of the sites that they identified as containing FCT 20a in their study were woodland formations in the 'overstorey' (the upper layer of the vegetation) and dense shrublands in the 'understorey' (the lower layer of the vegetation).
5. The inclusion of structural elements in the names of the FCTs were not the basis upon which the FCTs were identified. As I have said, Gibson and Keighery identified the FCTs based on a purely floristic method of vegetation classification. Accordingly, the references to the structural elements in FCT 20a does not mean that a site must have, for example, dense shrublands, before it could be categorised as FCT 20a.[574]
6. In any event, as I will shortly explain, the name given to an FCT was intended to be broadly descriptive, not definitional.

1. Gibson and Keighery also considered correlations between the floristics and environmental features of their survey sites such as soil type, the prevalence of species belonging to particular groups, species richness and moisture regime.[575]
2. While Gibson and Keighery did not use such features to define FCTs, they were identified as 'environmental correlates' that may be relevant to the assessment of whether vegetation on a particular site belonged to a particular FCT. They concluded that the major environmental correlates of the FCTs were moisture regime and soil type.[576]

1. The FCTs identified by Gibson and Keighery are described in detail in Appendix 1 of their report. Each FCT in Appendix 1 is described by reference to certain trees, shrubs and herbs that are 'typical species' and trees, shrubs and herbs that are 'other common species'.[577]
2. 'Typical' species were those that occurred with a frequency of more than 75%. 'Common' species were those that occurred with frequencies between 50 and 75%.[578] That is, those species listed as 'typical' for each FCT did not necessarily occur at every site identified by Gibson and Keighery as belonging to that FCT, but should be expected to occur in more than 75% of those sites. Species listed as 'common' should be expected to occur in 50 to 75% of those sites.

1. As I said earlier, Gibson and Keighery named FCT 20a as 'Banksia attenuata woodlands over species rich dense shrublands'.
2. The Valentino parties submitted that the name identified Banksia attenuata as 'the signature plant'.[579] In essence, they contended that the name was definitional rather than merely a label. They submitted, therefore, that whether or not Banksia attenuata was, or had been, present on Site 22 was 'an important piece of ecological data' to which Tauss and Weston should have had regard.[580] They also pleaded that the area would need to be 'dense shrubland'.[581] I do not accept these submissions.
3. As I have noted, Gibson and Keighery set out a detailed description of each FCT by reference to certain trees, shrubs and herbs that were 'typical species' or 'other common species'. From the Gibson and Keighery Report as a whole, it appears that the authors chose to give each FCT a shorthand label which would refer to some features of the FCT, but which was not intended to be definitional.
4. This was confirmed by Mr Keighery in his evidence.[582]
5. I asked Mr Coyle why I would not give the most weight to Mr Keighery's evidence on this point, given that he was one of the people involved in determining the name that was given. Mr Coyle replied 'Well, I suppose, there's some substance in that'.[583]
6. Mr Keighery's evidence confirms what I would have inferred from the report as a whole.
7. The label given to FCT 20a by Gibson and Keighery does not mean that an area must contain, or must have previously contained, Banksia attenuata before it can be categorised as FCT 20a. On the contrary, it is simply that Banksia attenuata would be expected to be present in at least 75% of FCT 20a sites. I will say more about this later.[584]

1. Gibson and Keighery identified FCT 20a at seven of their survey sites.
2. Subsequent studies have identified additional occurrences of FCT 20a.[585]
3. Mr Keighery also noted that information gathered as a result of subsequent studies has helped to identify environmental correlates of certain floristic community types. He explained that science is an iterative process. Some of the environmental correlates of a community will change over time because, among other reasons, more data is obtained.[586]

1. As noted earlier, the City engaged Tauss and Weston to carry out a survey of the flora, vegetation and wetlands of the MKSEA. Tauss and Weston were engaged to carry out an assessment in the form of a 'Level 2 Detailed Flora and Vegetation Survey, as per EPA Guidance Statement No. 51'.[587]
2. Ms English's unchallenged evidence was that Tauss and Weston had a reputation for being 'good, experienced and thorough botanists'.[588] There was no suggestion by any of the experts that Tauss and Weston were not competent, experienced and thorough.
3. The work carried out by Tauss and Weston was helpfully summarised in the Government parties' submissions,[589] and was not in dispute. It is unnecessary to reproduce or summarise all of that material. However, it is useful to note the following points from the Government parties' submissions (citations omitted):

Before carrying out their survey, Tauss and Weston carried out a literature review and search of the Department's TEC database and sought information and advice regarding the known conservation values of the survey area from relevant experts and stakeholders. They also interpreted vegetation patterns in the survey area from colour aerial photographs and topographic maps.

In early spring 2007, Tauss and Weston carried out a reconnaissance field survey to verify the accuracy of the background information they had obtained and to obtain an overview of the range of flora, vegetation and wetlands in the area.

As part of the reconnaissance survey, Tauss and Weston walked transects (defined straight lines along which data are recorded) through areas that were identified from aerial photographs as retaining native vegetation. Transects are commonly used to measure vegetation cover, species composition within a vegetation unit and vegetation changes across vegetation unit boundaries. Walking transects allowed Tauss and Weston to carry out opportunistic sampling and recording of the flora and vegetation in more degraded areas and to select suitable sites to install quadrats for detailed sampling.

The quadrat sites chosen by Tauss and Weston were chosen to be representative of the vegetation units they had identified based on their presurvey review of vegetation patterns in the survey area.

Tauss and Weston subsequently conducted a quadrat-based flora and vegetation field survey between September 2007 and July 2009. As part of the survey, they:

(a) surveyed 14 quadrats of 10m x 10m (marked by steel fence droppers) across various sites in the MKSEA and 18 relevés (ie unmarked areas of no fixed dimension) across sites in the area; and

(b) recorded all vascular plant taxa within the quadrats and relevés and took voucher specimens, where necessary, to identify them with reference to the Western Australian Herbarium collection.

When carrying out their survey, Tauss and Weston also recorded the following information in respect of each quadrat:

(a) location;

(b) landform;

(c) vegetation structure of the site's dominant vascular flora taxa (in terms of the lifeform, height and canopy cover class);

(d) presence and cover class of all vascular flora taxa in the quadrat;

(e) vegetation condition; and

(f) estimated time since last fire.

1. As part of their survey, Tauss and Weston established a quadrat on the Property, which they called 'Site 22'.
2. Tauss and Weston surveyed the quadrat on the Property twice: on 23 October 2007 and 10 November 2007.
3. They recorded that Cyathochaeta equitans (synonymous with Cyathochaeta clandestina in the Gibson and Keighery Report) was a dominant species in the vegetation layer comprising rushes, sedges and perennial monocots on the Property.[590]
4. Tauss and Weston observed that the Property is on an undulating sandplain of Bassendean Sands overlying the Pinjarra Plain, near where it borders the Ridge Hill Shelf. The Property had soils and landform consistent with FCT 20a.[591]
5. The Tauss and Weston Report also referred to the vegetation on the Property being very species rich.[592] Gibson and Keighery identified species richness as a characteristic of FCT 20a.

1. Tauss and Weston engaged a Mr Griffin to conduct a statistical analysis of their vegetation survey data.[593]
2. The statistical analysis involved using the computer software 'PATN', referred to earlier. The analysis compared the floristic data that Tauss and Weston collected in their survey with the floristic data collected by Gibson and Keighery in their original survey of the SCP. The comparison was based on the composition of all of the species identified in all of the surveyed sites that were being compared. The software used a mathematical algorithm to identify where there were statistical similarities between floristic composition on the sites.[594] This type of analysis is referred to a 'multivariate analysis'.
3. The experts agreed that the application of this computer analysis to the Tauss and Weston dataset was appropriate to assess FCTs.[595]
4. Griffin used two methods to analyse the data. The first was the 'classification' method. The second was the 'nearest neighbour' method.
5. The experts agreed that Griffin's analysis was appropriate for the level of data collected.[596]
6. The classification method compared the survey data from the sites surveyed by Tauss and Weston with the survey data from Gibson and Keighery. This method shows the similarities through a dendrogram, a type of tree diagram.[597]
7. Griffin applied the classification method to two different sets of survey data. The sets differed by the extent to which Griffin included 'relevés' as distinct from using only 'quadrats'. As I have noted elsewhere, a 'quadrat' is a square of fixed shape. Tauss and Weston used quadrats of 10 m by 10 m, being 100 sqm. A relevé can be any shape and size, and is sometimes used when it is not possible or practicable to survey an area of 10 m by 10 m.
8. All of the experts agreed that relevés will generally be less reliable than quadrats in this context. This is because the size of the survey area is not a set size and also because the survey effort is often less in a relevé than in a quadrat.[598] A relevé can, however, be as precise as a quadrat. It may be the same size as a quadrat, but be a different shape. One of Tauss and Weston's relevé sites was 1 m by 100 m.[599] If the field experts put the same unit effort into scoring a relevé as they do the quadrats, it may be equally precise.[600]

1. Griffin first used the classification method to compare the survey data from the quadrats and the relevés surveyed by Tauss and Weston with the quadrats surveyed by Gibson and Keighery.
2. The result (first classification result) was that Site 22 was most similar to FCT 6. FCT 6 is identified in the Gibson and Keighery Report as a weed dominated wetlands on heavy soils. All of the experts agreed that Site 22 was definitely not a wetland, but was upland vegetation and some form of Banksia woodland.[601] Accordingly, FCT 6 could not be the correct categorisation of the vegetation in Site 22.[602]

Comparison of quadrats and three particular relevés

1. Griffin also used the classification method to compare the survey data from Tauss and Weston's quadrats and only three of Tauss and Weston's relevés to the quadrats from Gibson and Keighery.[603]
2. The outcome (second classification result) was that Site 22 was statistically similar to FCT 20a. The results showed that Site 22 was most closely related to an FCT 20a quadrat from Gibson and Keighery, followed by site 24R (Site 24), which was a relevé site from Tauss and Weston's survey, followed by six other FCT 20a sites from Gibson and Keighery. The experts agreed that the result would have been the same even if the relevé, Site 24, had been excluded from this analysis.[604]

1. The other method used by Griffin, the nearest neighbour method, looks at a smaller number of comparators; those closest to the subject area.
2. Griffin identified the nearest neighbours to Site 22 as 'site 23R' (Site 23) and 'site 25R' (without assigning an FCT to either in this analysis), 'BULL3' (assigned to FCT 23a), 'M53' (assigned to FCT 20a), 'WIRR2' (assigned to FCT 23a), 'talb11' (assigned to FCT 20c), 'hurst03' (assigned to FCT 23a), 'KING2' (assigned to FCT 28), 'talb7' (assigned to FCT 20c) and 'WHITE1' (assigned to FCT 23a).[605]
3. The result (nearest neighbour result) for Site 22 was FCT '23A/20'.[606] FCT 23a is not a TEC.

1. In his report, Griffin indicated that he attempted to reconcile the results from the three different analyses.[607] He described it as a 'summary' by 'an intuitive synthesis, largely drawn from the [nearest neighbour results]'.[608]
2. For Site 22, his summary result was '20a/23a'.

1. It was common ground that Griffin's work was only part of the material upon which the determination of whether a site is a particular FCT should be made.[609]
2. Dr Mattiske, the expert most critical of Tauss and Weston's conclusion, was asked about the use to which Griffin's work could be put. She said this:[610]

Any of these [statistical] analyses, as I understand it, are really just to assist an ecologist in making a decision about what it might be. At the end of the day there's an ecological decision made based on experience level and general knowledge of the area what it should be and it may or may not be a particular thing. So all these analyses are only assisting in a process where you make a decision. They're not actually making the decision for you and I think that's the key point in terms of understanding that you can use different algorithms if you have quantitative data as well to come - and then at the end of the day as an ecologist you have to still make a decision, is it this or that, depending on what - and defining why you made that decision.

1. Dr Mattiske said that the decision should be made by the person in the field. In this case, that was Tauss and Weston, not Griffin. However, she said that, if she had been in their position and had had the option to go back to Site 22, she would have.[611] Dr Mattiske said, in effect, that if Griffin's report caused Tauss and Weston to have any uncertainty about whether or not the results or potential results fitted with what they (Tauss and Weston) had seen in the field, she would expect them to go back and do further work.[612]
2. Mr Keighery did not agree. In his view, that would not be what would happen in the real world.[613]
3. Mr Keighery also pointed out that Griffin was not saying he did not know. Rather, he was giving Tauss and Weston the results from each analysis. Mr Keighery said that Griffin 'doesn't want to influence their decision. He's not actually saying I just don't know. He's saying this is where they come out to. These are nearest neighbours. You make the decision'.[614] Dr Mattiske agreed this was what Griffin was doing.[615]
4. Both Dr Mattiske and Dr van der Moezel agreed that Griffin was saying it could be either FCT 20a or FCT 23a, and that he was not suggesting the degree of likelihood of either.[616]
5. Later, Dr Mattiske reiterated that the decision was to be made by the expert in the field. She said:[617]

[T]hese different classifications and the nearest neighbour analyses are still only part of the process of considering what it might be and it's not necessarily definitive and you don't just rely on the analysis results. You have to then put a judgment over the top of it in terms of ecological sense.

1. Dr van der Moezel said that, once the statistical analysis has been done[618]

[t]here are some decisions to be made by the people who collected the data, those who have been on the site and that can be based on a range of - based on their experience and a range of factors. As we've mentioned, the soil type, whether it's dry land, wetlands and their knowledge of what species they saw recorded on the site.

1. The experts agreed that those in the field may form a view about what community type is in a particular site or what the possibilities are, or they may form a view as to what types can be excluded.[619] Dr van der Moezel agreed that it is not just a statistical exercise. He agreed the process works in this way:[620]

You're looking at the interaction between what you're observing and based on your experience and expertise, you can form a view then which you then are assisted by - I mean, not necessarily form a view, but you could, or a tentative view, and then you get this numbercrunching information that provides - either tells you [you are] wrong or supports your view or confirms a tentative view.

1. The Valentino parties submitted that Tauss and Weston ignored various conclusions of Griffin and misrepresented the outcome of his analysis in a number of respects.
2. However, it was Tauss and Weston who ultimately decided whether or not FCTs could or should be assigned to the sample sites in the MKSEA, not Griffin.[621] Griffin had not visited the sites or even seen photographs of them.[622] The persons best placed to make the assessment were those who had been in the field - Tauss and Weston.
3. Griffin's statistical analysis was simply part of the material upon which the field experts would base their decision.[623] Griffin himself noted that decisions about the affiliation or otherwise of sites with FCTs 'should be made cautiously with the consideration of any additional data available from the sites in question (such as landforms, soils, hydrology and disturbances) that may be significant with regard to the presence or absence of individual floristic components'.[624]

1. The Valentino parties submitted that Tauss and Weston should have given more weight to Griffin's nearest neighbour result.
2. In his report, Griffin described the different methods he had used, being the classification method and the nearest neighbour method. Griffin stated that 'Experience demonstrates that the results [of each method] are likely to vary, but [the results] from the nearest neighbours is likely to make more sense'.[625]
3. Dr van der Moezel said he did not have the expertise to comment on this.[626]
4. Dr Mattiske said that one would expect the nearest neighbours to be more similar than an area that is a lot further away. She explained that the soil layering and moisture differed over distance causing natural local variations in the vegetation.[627]
5. None of the experts suggested that the nearest neighbour result was likely to be more accurate. Both Dr van der Moezel and Dr Mattiske simply queried why Tauss and Weston had, in their view, preferred the second classification result given the nearest neighbour result.
6. I have already noted that the experts agreed that the decision was not simply a matter of looking at the results of the statistical analysis. Given this, the queries of Dr van der Moezel and Dr Mattiske are to be answered by looking at Tauss and Weston's reasons as a whole.
7. In any event, it emerged that, in the nearest neighbour analysis, Griffin had not taken account of the FCT of the nearest neighbour to Site 22, being Site 23.[628] Site 23 shared a common boundary with Site 22.[629] Dr van der Moezel surmised that this was because Griffin had not yet decided what the FCT was on Site 23 at the time he ran the nearest neighbour analysis.[630] Dr van der Moezel noted that Griffin's summary recorded Site 23 as '6?/28'.[631] He said that, subsequent to the Griffin report, Tauss and Weston's analysis of other factors led them to conclude that Site 23 was FCT 20a.[632] If they were correct to do so, then, had it been taken into account in the nearest neighbour analysis, the result may have been FCT 20a.[633]
8. I note that Mr Keighery provided a detailed explanation as to why he considered that the second classification method was more reliable than the nearest neighbour.[634] In short, the presence of numerous poor condition wetland sites appeared to be greatly influencing nearest neighbour results. Site 22 was itself not a wetland site.
9. Later,[635] I analyse why Tauss and Weston concluded Site 22 was FCT 20a and the various comments Tauss and Weston made in relation to Griffin's analysis. I will explain why, in my view, Tauss and Weston reached that conclusion, despite the equivocal nearest neighbour result.

1. The experts were asked to express opinions as to the reasoning process of Tauss and Weston. I accept that their answers may be of some weight, at least when the questions were sufficiently clear. However, nothing said by the experts caused me to conclude that the report should be read in any unusual way.

1. In section 2 of their report, Tauss and Weston set out their research into climate, landforms, superficial sediments (soils), hydrology and wetlands, drainage issues, and biogeography.[636]
2. Dr Mattiske and Dr van der Moezel agreed that it was fair to say Tauss and Weston had done quite a bit of background research into these matters.[637]
3. Dr Mattiske and Dr van der Moezel agreed that Tauss and Weston were looking at various matters in their assessment, beyond just the results of Griffin's analysis.[638]

1. In section 3 of their report, Tauss and Weston set out their methods. This included the guiding principles they had adopted, the selection of representative quadrats, the selection of relevés, the survey methods and the limitations of the survey.[639]
2. They referred to the multivariate analysis conducted by Griffin. They said that this analysis provided an indication of the similarity of the community types within the MKSEA with previously defined FCTs in the context of the SCP Bioregion. They said that Griffin's analysis assisted in the objective evaluation of the conservation significance of the vegetation assemblages and was also useful in verifying the patterns derived intuitively in the field.[640]

1. In section 5.1 of their report, Tauss and Weston set out the results of their vegetation desktop study. In section 5.1.2, they set out some characteristic features of various FCTs, including FCT 20a.[641]
2. In section 5.2 of their report, Tauss and Weston set out the results of their vegetation field survey.
3. They explained that they analysed their survey data in a hierarchical manner, as follows:[642]

(1) First, they classified and mapped the data 'using a simple vegetation structure approach' to provide 'a preliminary (and purely descriptive) overview of the range of finescale vegetation units that were recorded in the MKSEA without attempting to relate the vegetation to any previous classification' (being FCTs as described in the Gibson and Keighery Report). The vegetation units were mapped on Figure 10.

(2) Then, they compared the vegetation units from the first step with units that had been described and/or mapped previously within certain nearby high conservation areas.

(3) Third, they engaged Griffin to statistically analyse their vegetation survey data as against the survey data from the Gibson and Keighery Report. They then 'critically reviewed (by considering the limitations of the above approach, the total evidence of floristics, vegetation structure and habitat available from the MKSEA and from other studies of the SCP)' Griffin's results to assess and map any FCTs. The FCTs were mapped on Figure 11.

1. Tauss and Weston identified Site 22 as belonging to the vegetation unit 'T10', described as 'Allocasuarina fraseriana - Eucalyptus todtiana - Banksia menziesii low open woodland over a speciesrich low shrubs'.
2. In his report, Dr van der Moezel described the vegetation that he saw when he attended the Property as 'Allocasuarina fraseriana/Banksia menziesii Low Open Woodland over a diverse Closed Low Heath'.[643]
3. The Valentino parties pleaded that, if Site 22 was properly described in either way, it would therefore not be FCT 20a.[644] This pleading was based on a misapprehension of the different systems by which botanists describe or classify vegetation.
4. In his oral evidence, Dr van der Moezel agreed his description was a 'high level' description which combined structural elements and floristic key species. He agreed it was a different descriptive system to a purely floristic system. Dr van der Moezel agreed that the same patch of vegetation could be described in different ways using the different systems.[645] Therefore, Dr van der Moezel's description did not mean that the vegetation could not also be described as FCT 20a.
5. Dr van der Moezel agreed that Tauss and Weston's description of vegetation unit T10 was similar to his. The other two experts concurred. Dr van der Moezel further agreed that Tauss and Weston's description was not an FCT.[646]
6. Dr Mattiske also described the vegetation that she saw on the Property, but again, only in a structural sense.[647]
7. Tauss and Weston's classification of the vegetation unit on Site 22 was simply the first step in their analysis. Both their description and Dr van der Moezel's description say nothing about whether Site 22 was properly assigned to FCT 20a.
8. As it happened, all of the sites classified as T10 in the first step of their analysis were also identified as FCT 20a in the third step of their analysis.[648]

Step 3 - the Griffin analysis and critical review

1. In section 5.2.3 of their report, Tauss and Weston discussed the results of Griffin's work.
2. They said (emphasis added):[649]

The multivariate analysis performed on the MKSEA data against the SCP dataset of Gibson et al. (1994) ('the SCP dataset') by Griffin (Appendix D), and assessed against ecological data collected in the current survey suggest some relationships between the MKSEA and FCTs of the SCP (Table 5.5). The Floristic Community Types in the MKSEA suggested by this process are mapped in Figure 11.

1. They said that there was 'some objective evidence of the occurrence of the three threatened FCTs 3a, 8 and 20a in the MKSEA'.[650]
2. They noted that the results of the second classification method (which they called 'DEN quads') provided more unequivocal results than the nearest neighbour analysis (which they called 'NNB').
3. They wrote (emphasis added):[651]

The habitat data collected in the current survey provided additional resources for dealing with some of the shortfalls in the purely floristic approach to vegetation classification that is often used to determine the conversation value of vegetation on the [Swan Coastal Plain].

1. They explained the limitations that were associated with those relevés that came from more degraded or weedy areas. They explained why the first classification analysis was unhelpful. They said that, for that reason, their discussion would mainly be limited to the second classification and nearest neighbour analyses.
2. They wrote (emphasis added):[652]

Quadrats 4, 6, 8, 10, 11, 12, 15, 16, 17, 19, 20, 22 and 28 of the MKSEA were sampled in the most species-rich and undisturbed vegetation of the survey area, and Relevés 14, 24 and 26 were analysed with them, as quadrats. All of these quadrats (except 15, 16 and 27, the only three sites with affinities to FCT 11) clustered in the classification of the quadrat data 'DEN quads' with three FCTs of the SCP that are Threatened Ecological Communities (3a, 8 and 20a) (Table 5.5, Column 3). The nearest neighbours for the quadrats of the MKSEA in the NNB analysis were (as expected) other quadrats and relevés from the MKSEA, followed by sites of the SCP dataset from FCTs 3a, 8, 20a and other FCTs. Any ambiguities that were added to the relatively simple 'DEN quads' pattern by the NNB results provided further insights about the MKSEA quadrat sites.

1. After discussing the significance of Muchea Limestone in some sites (not including Site 22), Tauss and Weston wrote (emphasis added):[653]

Consideration of the multivariate analysis summary (Table 5.5, Column 5) with the ecological evidence from the MKSEA survey leads to the inference that six groups (A, B, C, D, E and F) of sites (FCT 3a, FCT 20a, FCTs 7/8/10a, ML, Degraded Sites and Unassigned Sites) are in the MKSEA.

1. Tauss and Weston then set out the results for the specific groups of FCTs they had identified.[654] They did not assign every site they surveyed to an FCT.
2. In relation to FCT 20a, they wrote:[655]

Results

Sites 22 and 24 of the MKSEA clustered with FCT 20a sites (such as KOON1, KOON2, and M53) of the SCP dataset (Speciesrich Banksia woodland TEC) in 'DEN quads' (Appendix D). The nearest neighbours of these sites in the 'NNB' (Appendix D) were MKSEA relevés 23, 25 and 29, and SCP dataset sites from FCTs 20a, 23a and 20c. MKSEA Sites 22, 23 and 24 were in close proximity to each other and all included Cyathochaeta equitans (syn. Cyathochaeta clandestina in the SCP survey of Gibson et al., 1994) a species that is strongly indicative of FCT 20a on the SCP (B.J. Keighery ,pers. comm.). Sites 22 and 24 were also extremely species-rich, although complete data of the speciesrichness of Site 24 were not available due to site access problems.

Site 23 was adjacent to Site 22 and was somewhat degraded whilst still retaining sufficient floristic elements (including Cyathochaeta equitans) that enabled its recognition as FCT 20a.

Assignation of FCTs (Table 5.5, Column 6a)

Sites 22, 23 and 24 were assigned to FCT 20a on the basis of the floristic analysis.

Sites 25 and 29 were degraded and there was insufficient evidence to assign them to FCT 20a. It appears, from the floristic analysis, that they are more likely to be related to FCT 23a.

1. Table 5.5 in the Tauss and Weston Report is headed 'Floristic Community Types (FCTs) determined in the MKSEA study sites'.[656]
2. Columns 3 and 4 of Table 5 set out, for each of the sites surveyed by Tauss and Weston, the results of Griffin's analysis using the second classification method and the nearest neighbour method. Column 5 sets out his 'summary'.
3. Column 6a of Table 5 set out Tauss and Weston's conclusion for each site of the 'FCT(s) suggested by total evidence'. Column 6b indicated, when shaded blue, that the site was a 'WA DEClisted TEC'. That column was shaded blue for Site 22.[657]
4. In summarising their findings at the start of the report, Tauss and Weston noted 'The current flora vegetation and wetlands survey found numerous conservation values of national, state and regional significance within the MKSEA (Table A)'.[658] Table A listed under the 'Values' column 'State Significance Threatened Ecological Communities (listed by the WA Department of Environment and Conservation)'. In the adjacent column headed 'Description of Values', four different TECs were listed, including 'Eastern Banksia Woodlands (FCT 20a)'.[659]
5. In section 7 of their report, titled 'Conclusions', Tauss and Weston included a table titled 'Summary of conservation values and management recommendations for MKSEA sites'. The entry for the Property includes 'Vegetation: Guildford Vegetation Complex, very high conservation significance' and 'Threatened Ecological Community: WA DEC TEC (EN B ii) (Banksia attenuata woodlands over speciesrich dense shrublands, FCT 20a)'.[660]

Open to Tauss and Weston to reach valid conclusions

1. Dr van der Moezel considered that Tauss and Weston had used a thorough methodology.[661]
2. Dr Mattiske's evidence was to the effect that she would have done more than was done by Tauss and Weston.[662] However, Dr Mattiske accepted that Tauss and Weston may have been subject to resourcing constraints. She said:[663]

[I]n terms of the base methodology they at least did the - undertook - I would have done more myself. But you know, at the end of the day, they obviously had constraints in terms of how they collected the data and how they collected the data and how they merged the data. The actual application of the analyses I don't think we're in disagreement about. It's probably the minimum of what you would do in terms of how then they jump from the queries that Griffin had with his limitations to the final conclusions was the issue.

1. Mr Coyle summarised Dr Mattiske's position in this way:[664]

As I understand it what you're saying is that you've got no reservations about that part of the process that went to the point of generating the FCTs and I think what you're saying - and tell me if it's slightly wrong - whilst you're happy with that you say that you've got reservations about the stage beyond that where they came to conclusions and assigned sites to FCTs.

1. As will be discussed later,[665] Mr Keighery considered Tauss and Weston's conclusion to be justified and scientifically valid based on the data available.
2. Tauss and Weston noted the limitations that affected their work within their report.[666] There is no evidence to suggest that any of those limitations affected the reliability or propriety of their conclusions. Tauss and Weston said that '[a]n appropriate level of survey was used for the high conservation value flora and vegetation of the area in accordance with EPA recommendations'.[667]
3. None of the experts suggested that Tauss and Weston could not have come to a reliable or valid conclusion following the methodology they adopted.

1. As indicated, Tauss and Weston said that Site 22 was assigned to FCT 20a on the basis of the floristic analysis. However, both Dr van der Moezel and Dr Mattiske accepted that Tauss and Weston may have had regard to all of the information they set out in their report in reaching the conclusion that Site 22 was FCT 20a. While they would have preferred those other matters to be included in the results section, they accepted that the results section may have simply set out their conclusion without repeating that information.[668]
2. Both Dr Mattiske and Mr Keighery agreed that the fair way to approach the report was to read the report as a whole and consider what was set out in the different sections and how it relates to their ultimate conclusions.[669] Mr Keighery said it was normal to present results in a fairly abbreviated format.[670]
3. In my view, the report was intended to be read as a whole. In concluding that Site 22 was FCT 20a, Tauss and Weston took into account the other information they had referred to in earlier sections of their report.
4. Most obviously, they had regard to the habitat data they had collected, and their own observations of the conditions of the various relevés. These were set out in the discussion of the results in section 5.2.3.
5. I also conclude that they had regard to the vegetation structure, including soil types, referred to in their description of vegetation unit T10. As was noted earlier,[671] Tauss and Weston explained that they analysed their survey data in a hierarchical manner. The first step was the vegetation structure. The third step was to critically review Griffin's results by, as they said, considering the limitations, the total evidence of floristics, vegetation structure and habitat available from the MKSEA and from other studies of the SCP, to assess and map any FCTs.
6. For the same reason, I conclude that they had regard to all of the matters they set out in their report relating to floristics and habitat.
7. In addition, I consider that they had regard to their preliminary views of possible classifications, formed during their field work. As was noted earlier, Tauss and Weston said that Griffin's analysis was useful in 'verifying the patterns derived intuitively in the field'.
8. There is evidence that Tauss and Weston had expressed the view to Ms English that Site 22 was FCT 20a on the basis of their field observations, prior to Griffin's analysis being done.[672] This did not prove that that was what Tauss and Weston thought at the time, as it is hearsay. However, it is consistent with the implicit assertion in their report that they had intuitively derived patterns in the field.
9. In my view, the matters Tauss and Weston set out in the results section were their primary reasons for assigning Site 22 to FCT 20a, but not the only reasons.

Reasons for finding FCT 20a despite the nearest neighbour

1. The above explains why I consider that Tauss and Weston took into account many matters in reaching their conclusion. I will now address why, in my view, Tauss and Weston reached their conclusion despite the equivocal nearest neighbour result.
2. I have already set out Tauss and Weston's comments on the Griffin analysis. The following matters are of particular note.
3. Tauss and Weston said Griffin's analysis, among other things, assisted in the objective evaluation of the conservation significance of the vegetation assemblages and was also useful in verifying the patterns derived intuitively in the field.
4. They noted the limitations associated with the relevés that came from more degraded areas or more weedy areas.
5. They noted that the second classification method provided more unequivocal results than the nearest neighbour analysis. Nevertheless, they said that any ambiguities that were added to the relatively simple second classification pattern by the nearest neighbour results provided further insights about the MKSEA quadrat sites. This statement of itself suggests that Tauss and Weston did not disregard Griffin's nearest neighbour results where they were equivocal.
6. They said that they critically reviewed Griffin's results by considering limitations, the total evidence of floristics, vegetation structure and habitat available from the MKSEA and from other studies of the SCP. They said, for example, that the habitat data they had collected in their survey provided additional resources for dealing with some of the shortfalls in the purely floristic approach to vegetation classification.
7. Further, they noted that the nearest neighbours to Site 22 and Site 24 were the relevés called Sites 23, 25 and 29. The nearest neighbour to Site 22 was Site 23. Site 23 shared a common boundary with Site 22. In conducting the nearest neighbour analysis, Griffin had not taken account of the FCT of Site 23. However, Tauss and Weston concluded that Site 23 was FCT 20a.
8. I infer, from their report as a whole, that Tauss and Weston used their expert knowledge, derived from their extensive research and field studies, to conclude that the results of the second classification method was consistent with, and confirmed, their observations and research. I infer that, having considered what insights were offered by the nearest neighbour results obtained by Griffin and their own conclusions as to Site 23 (to which Griffin did not assign an FCT in that analysis), they concluded that the more reliable analysis was the second classification analysis. This is why they said that they assigned Site 22 to FCT 20a 'on the basis of the floristic analysis'.

Did Tauss and Weston assume they had to assign each site?

1. Although not contained in the Valentino parties' summary of the alleged deficiencies,[673] the Valentino parties appeared to assert that Tauss and Weston assumed that each of the sites in the MKSEA had to be assigned to an FCT.[674] The Valentino parties' closing submissions did not directly address this issue.[675] This was perhaps because the experts ultimately agreed that they would not have interpreted the instructions given to Tauss and Weston as requiring that.[676]
2. Further, it would be improper for a scientist to assign an area to an FCT without a sufficient scientific basis, and there was no evidence of impropriety.
3. In any event, it is clear from Tauss and Weston's report that they did not make that assumption. As noted by the Government parties, the sites numbered 2 and 27 were not assigned to any FCT. Further, the sites numbered 1, 3, 25, 29 and 32 were 'not reliably assigned to FCTs by the floristic analysis and there was insufficient other evidence to further inform the analysis results'. The sites numbered 7, 8, 9, 10, 11 and 18 and 31 were only 'tentatively assigned' to FCTs.[677] As Tauss and Weston did not assign each site to an FCT, they could not have been acting on the assumption that each of the sites in the MKSEA had to be assigned to an FCT.

1. In the above sections, I dealt with a number of the expert issues that arose in relation to the Gibson and Keighery Report, Griffin's analysis and the Tauss and Weston Report. In this section, I will deal with the remaining expert issues.

1. As discussed earlier, the Valentino parties submitted, in essence, that the name of FCT 20a was definitional rather than merely a broadly descriptive label. They contended, therefore, that whether or not Banksia attenuata was, or had been, present on Site 22 was 'an important piece of ecological data' to which Tauss and Weston should have had regard. I have already explained why I do not accept that the name of the FCT was definitional.
2. Dr Mattiske's evidence was based on the assumption that the name of the FCT was a definition. On that basis, her evidence was that one would assume that Banksia attenuata would be present, at least at the time it was originally 'defined'.[678] Later, Dr Mattiske said she would be looking for Banksia attenuata as one of the indicators of FCT 20a. However, she acknowledged that the FCTs are defined on the combination of species and it is not necessary to rely on any single one.[679]
3. In Dr van der Moezel's third report, he said:[680]

On this basis it would appear that the presence of Banksia attenuata is necessary in vegetation described as FCT 20a. However, the computer analysis of FCTs is based on the composition of all the species in a quadrat. Each species is given equal weighting regardless of whether it is a tree or a small herb. It would therefore be possible that an area of vegetation could be FCT 20a if it did not contain any Banksia attenuata trees but did contain other species characteristic of this community type. In my opinion it would be unusual for that to occur, but it would not be impossible. The absence of Banksia attenuata in such an instance could be due to fire, disease or logging having removed the species from the site or it could be explained by the variable spatial distribution of species in nature where not every 100m2 contains exactly the same species as the next 100m2 in a patch of vegetation.

... While the fact that Banksia attenuata was not observed to be present on the site does not of itself mean that the vegetation cannot fall within the Listed FCT 20a, it is a factor that suggests that the vegetation may possibly fall within a different Listed FCT and may not fall within any of the Listed FCTs if it the vegetation type present on the site was not one that was sampled in the SCP survey.

1. In his oral evidence, Dr van der Moezel said it 'would be a surprise to me that Banksia attenuata wasn't in a site that the computer assigned to community type 20a, but it's not essential and it is possible for - so it's not essential'.[681] Consistently with this, he said that Banksia attenuata may never have been in Site 22 or may have been there in the past but was no longer there.[682]
2. Mr Keighery's report set out the basis upon which species were identified as 'typical' or 'other common species', and the significance of the absence of particular species.[683] In relation to the latter, he noted:[684]

In communities with fewer species, the absence of particular species is highly significant and meaningful. In highly species rich communities [such as FCT 20a], the absence of particular species is less significant and meaningful.

1. Mr Keighery also pointed out that all plant communities vary in time and space; therefore, no individual site will contain every species of a particular FCT.[685] This echoed Dr van der Moezel's statement that 'The absence of Banksia attenuata ... could be explained by the variable spatial distribution of species in nature where not every 100m2 contains exactly the same species as the next 100m2 in a patch of vegetation'.[686]
2. Mr Keighery's report explained why Banksia attenuata did not need to be present before a site could be assigned to FCT 20a.[687] In particular, he said that the name of FCT 20a was not definitional. He said:[688]

FCTs are not defined by the structure of the vegetation within them or by a description of the major components of the vegetation within them, ie Banksia trees over low shrublands. A floristic community is a collection/group of different species of flora occurring together in a particular area. The FCTs that we identified in Gibson et al., 1994 were identified by comparing the composition of all of the species in each of the quadrats we surveyed with the composition of all of the species in each of the other quadrats we surveyed. It is the totality of all of the species present in an area (and how that totality of species compares to the totality of the species identified in each of the sites surveyed as part of Gibson et al., 1994) that primarily determines the FCT of the vegetation in the area.

1. In his oral evidence, Mr Keighery further explained that Banksia attenuata was one of the 'typical species' of FCT 20a. Accordingly, one would expect it to be present in 75% of the areas of FCT 20a. He said:[689]

Banksia woodlands have got about 10 trees in them and about 700 understorey species. So the floristics is driven much more by the understorey than by the trees and shrubs on top. And that's a feature of our plant communities ... They are shrub and herb rich.

1. Mr Keighery later said it was not crucial that a site contain Banksia attenuata to be FCT 20a. He said:[690]

What I'm trying to say is that to be site 20a is a speciesrich understorey community with an overstorey which tends to be a Banksia or a series of other trees. Banksia woodlands have very diverse understories and very low diversity in the tree overstorey. So you can readily lose one component, which is the tree overstorey, and still have 99 per cent of the community remaining. That would be my view of it. It's a descriptor, not a diagnoses.

... you are mistaking allocating something that has to be there compared to something which you generally find there, and they are not the same thing ...

It's a descriptor, not a diagnoses. It would be useful if attenuata had been there, but it is not crucial in any way, and [Griffin's] analysis - running it would not have had [Banksia attenuata] as any more important than any one of the other several hundred species that he looked at in the analysis.

Studies undertaken after the Gibson and Keighery Report

1. After the Gibson and Keighery Report, subsequent studies identified additional occurrences of FCT 20a.[691]
2. In crossexamination, Mr Keighery was asked whether, if he had gone to the site, and not seen any Banksia attenuata, but had seen Banksia menziesii, that would have 'had any bearing at all on the question of whether it might best be placed into FCT 23a and not FCT 20a'. Mr Keighery replied:[692]

Speaking for myself personally, because I've had a lot to do with floristic community type 20a, no, it wouldn't have because I know a number of sites that don't have Banksia attenuata that are definitely - or apparently definitely that community. If I had gone back to it, I probably would have tried to have seen if there was any evidence that Banksia attenuata occurred there prior, in terms of stumps or material that might indicate it, because, as I've said previously, Banksia attenuata is reasonably prone to loss through frequent fires and the site, from my reading of the description, has had quite a lot of fires. So I would have tried to have seen if it was there [the witness was then interrupted].

1. Mr Keighery said that, as a result of the further studies, about 55 additional occurrences of FCT 20a had been identified. The Gibson and Keighery Report had identified seven.[693]
2. The other experts appeared to accept that Banksia attenuata has not always been recorded in FCT 20a.[694] Further, Dr Mattiske appeared to defer to Mr Keighery's knowledge of FCT 20a.[695]
3. Ms English also gave evidence about the subsequent studies. She was asked:[696]

If you have two sites that are very similar in terms of the analysis produced by the data and one has got Banksia attenuata and one has got Banksia menziesii, on the face of it, unless there's good reason from the data not to do it, you would be inclined, wouldn't you, to put it into an FCT headed by a Banksia menziesii?

No. No. From our experience, Banksia attenuata is - is not - not necessarily required in the floristic community type at all. In the original seven quadrats that Gibson established in 1994, they did find Banksia attenuata in it, but, subsequently, it's quite obvious that - from very good data, from very good surveys and extremely good data that it's possible to have floristic community type 20a without Banksia attenuata in it.

1. Ms English said that the further studies exactly repeated the methodology of Gibson and Keighery. She said that the quadrats were 'shown to align very nicely with floristic community type 20a'. She said 'We have established a whole series of quadrats in other areas of floristic community type 20a'.[698]
2. Ms English was also involved in preparing the Interim Recovery Plan for FCT 20a developed by the Department.[699] The Plan confirms that the absence of Banksia attenuata does not mean that the vegetation cannot belong to FCT 20a.[700]

1. To the extent that the expert opinions differed, I prefer Mr Keighery's evidence for the following reasons.

(1) First, he was one of the authors of the Gibson and Keighery Report.

(2) Second, his unchallenged evidence was that he had had a lot of experience with FCT 20a, and was aware of a number of FCT 20a sites that do not have Banksia attenuata. Ms English's evidence confirmed the latter.

(3) Third, his reasoning was clear, detailed and consistent.

1. Banksia attenuata is only one of 19 'typical' trees, shrubs and herbs used to describe FCT 20a. Its absence from a site does not mean that the site is not FCT 20a. Its absence from a site that does have Banksia menziesii does not mean that the site should be classified as FCT 23a and not FCT 20a. Its absence from a site has no greater significance than the absence of any of the other typical species of FCT 20a.

1. As noted earlier, the Tauss and Weston Report asserted that Cyathochaeta equitans was 'strongly indicative' of an area being FCT 20a. They cited, as support for that proposition, a personal communication with one of the authors of the Gibson and Keighery Report, 'BJ Keighery'.[701] BJ Keighery is the wife of Mr Keighery.
2. Dr Mattiske and Dr van der Moezel queried Tauss and Weston's reliance on the presence of Cyathochaeta equitans on Site 22. Both were critical of relying on the species on the basis of a discussion with another botanist.
3. Dr Mattiske also referred to Tauss and Weston's statement that this herb was also found in Sites 23 and 24. She said she was not able to check whether this was accurate.[702] This was presumably because she was not provided with a full copy of the Tauss and Weston Report. Their report confirms that Cyathochaeta equitans was found in Sites 23 and 24.[703]
4. In the Gibson and Keighery Report, Cyathochaeta equitans was identified as a 'common species' in FCT 20a. Dr Mattiske was asked if it was now a typical species in FCT 20a and she said she would refer that question to Mr Keighery.[704]
5. In the previous section, I discussed the subsequent studies that had been done after the Gibson and Keighery Report, which identified many more occurrences of FCT 20a than the seven identified by Gibson and Keighery in 1994.
6. In Mr Keighery's report, he said that Cyathochaeta equitans was strongly indicative of FCT 20a on the SCP. He said it only occurs on the eastern side of the SCP, usually on yellow colluvial sands (Forrestfield formation) which are found underlying FCT 20a. He said that, in the Perth area, it has been identified at all currently mapped FCT 20a sites, and, rarely, extends marginally onto the adjacent Pinjarra Plain on colluvial/aeolian mixed sands at Perth Airport.[705]
7. In his oral evidence, Mr Keighery said Cyathochaeta equitans would be found in 50% 75% of FCT 20a sites. He said this was an indicator that an area was FCT 20a, 'not an absolute requirement'.[706]
8. In his third report, Dr van der Moezel had noted that Cyathochaeta clandestina (now referred to as Cyathochaeta equitans) was recorded by Gibson and Keighery in six different FCTs (1a, 1b, 20a, 20b, 20c, 21c). On a percentage of quadrats basis, Cyathochaeta clandestina was recorded most (57%) in FCT 20a. Cyathochaeta clandestina was not recorded in any of the FCT 23a quadrats.[707]
9. In his oral evidence, Dr van der Moezel said that the presence of Cyathochaeta equitans, while not determinative, tended to support that an area was FCT 20a.[708]
10. The evidence establishes that Cyathochaeta equitans is, at the very least, an indicator of FCT 20a. It would be found in 50% 75% of FCT 20a sites. It was open to Tauss and Weston to treat it as a reliable or strong indicator.

1. Dr Mattiske's first report discussed a number of issues I have already dealt with.
2. She said it would be inappropriate to adopt an approach which assumed that an area had to be assigned to an FCT.[709] I have explained why I find that Tauss and Weston did not adopt that approach.
3. She discussed the significance of the absence of Banksia attenuata if the name of the FCT was a definition.[710] I have explained why I find that the name was not a definition.
4. Dr Mattiske commented on the reasons Tauss and Weston gave in the results section. I have explained why I find that their report must be read as a whole and that their reasons were not limited to what was contained in the results section.
5. In her report, Dr Mattiske described Tauss and Weston's assignation of Site 22 to FCT 20a as 'a departure from the reported outcome in Griffin', being his summary of '20a/23a'.[711] She queried 'how Tauss and Weston assigned Site 22Q[712] to FCT 20a when Griffin could not differentiate Site 22Q between FCT 20a and FCT 23a'.[713] As noted earlier, in her oral evidence, Dr Mattiske agreed that Griffin was not saying he did not know. Rather, he was giving Tauss and Weston the results of each test and saying, in effect, 'you make the decision'.

1. Although Dr Mattiske did not do a formal survey of the Property and did not conduct a statistical analysis as Griffin had done, she undertook a numerical comparison of the species recorded on Site 22 by Tauss and Weston against the species recorded by Gibson and Keighery.
2. She concluded from this that Site 22 was unlikely to be FCT 20a and said that the comparison supported Griffin's analysis that it also had affinities with FCT 23a.[714]
3. In her second report, Dr Mattiske wrote:[715]

Only 4 of the 7 (57%) typical shrubs of FCT20a and 5 of the 12 (42%) common shrubs of FCT20a are present on Site 22Q [Site 22Q was another name used for Site 22]. In my opinion the absence of nearly half of the shrub species typical to FCT20a suggests that the vegetation is unlikely to be FCT20a.

2 of the 5 (40%) typical shrubs and 4 of the 8 (50%) other common shrubs for FCT23a are present on Site 22Q. This, coupled with the fact that one of the trees (Banksia menziesii) listed by Gibson et al as typical of FCT23a is present on Site 22Q, is in my opinion a basis for concluding that Site 22Q is at least as likely to be FCT23a as FCT20a. This is consistent with the reported outcome of Griffin ...

The presence of only 5 of the 11 (46%) other species (herbs, grasses, rushes and sedges) typical of FCT20a and only 4 of the 16 (25%) other species (herbs, grasses, rushes and sedges) common to FCT20a again, in my opinion, suggests that it is unlikely to be FCT20a ... On the other hand, there are 6 of the 10 (60%) other species (herbs, grasses, rushes and sedges) typical of FCT23a and 5 of the 15 (33%) other species (herbs, grasses, rushes and sedges) common for FCT23a. Consequently again, in my opinion, the presence/absence of common and typical other species (herbs, grasses, rushes and sedges) does not support a conclusion that the vegetation is FCT20a but does support the conclusion that, if it is a matter of which of the 2 FCT's [sic] 20a and 23a is most applicable, it is FCT23a.

1. The other expert called on behalf of the Valentino parties, Dr van der Moezel, described the type of comparison done by Dr Mattiske as 'relatively simplistic' compared to the mathematical algorithm used in the computer analysis done by Griffin. He said it was[716]

merely a presence or absence. It's a count of how many species did you record on that site that [are] normally found in one community type over another - or over the whole lot. And you look at the one that has the most species might be close to the floristic community type. The algorithm that's used in the PATN analysis is a complicated sum equation, which is ... a far more correct way of doing it.

1. Further, in crossexamination, it emerged that Dr Mattiske had made a number of counting errors.
2. In particular, there were actually seven of the 11 other species (herbs, grasses, rushes and sedges) typical of FCT 20a in Site 22,[717] rather than five of the 11 as reported by Dr Mattiske.
3. With those corrections, her comparison shows that Site 22 contained 11 of 19 'typical' species of FCT 20a (57.89%) and nine of 17 'typical' species of FCT 23a (52.9%).
4. Dr Mattiske initially did not accept that this would alter her view that the evidence provided greater support for the conclusion that it was FCT 23a, rather than FCT 20a. She said that her conclusion, extracted above, was not referring only to the percentages. However, she subsequently said:[718]

But that last sentence, it - it's still to me - maybe I've gone too far saying it is 23a, but it's still a question about whether - which one it is.

... I'm not saying I'm trying to apply something to prove that point, all I'm saying is I just have a whole lot of questions about, 'Should it be this or that' ... and that's where I've got to.

1. The Government parties were highly critical of Dr Mattiske's simplistic species comparison.[719] I accept their criticisms of the value of such a method. I further accept that Dr Mattiske did appear to put forward her comparison as a basis upon which it could be concluded that Site 22 was not FCT 20a. However, I would hesitate before concluding that Dr Mattiske was intending to suggest that the simplistic comparison would be a scientifically valid basis upon which to do so. Dr Mattiske acknowledged that she had not conducted a formal survey and acknowledged the proper processes that an expert should adopt. She acknowledged that the field experts were best placed to reach a conclusion based on, among other things, the knowledge they had gained from their surveys. After the mathematical errors were pointed out to her, she did eventually concede that she was not asserting a particular conclusion, but merely had queries.
2. For these reasons, I would not express a criticism of Dr Mattiske. However, for the same reasons, I find her simplistic comparison to be of little assistance.
3. Ultimately, the effect of Dr Mattiske's evidence was that she had questions about which FCT should be assigned to Site 22.

1. Dr van der Moezel's first two reports dealt with the clearing permit issues and the current viability of the vegetation in the TEC area. Only his third report dealt with the classification of the vegetation.
2. In his third report, Dr van der Moezel discussed the significance of the absence of Banksia attenuata.[720] I dealt with this topic earlier.
3. Dr van der Moezel said, in his third report, that Tauss and Weston appear to have assigned Site 22 to FCT 20a rather than FCT 23a not on the basis of the floristic analysis, but rather on the presence of one species, Cyathochaeta equitans. He asserted this because 'Griffin's summary of the floristic analysis indicates that, if the site must be allocated to a Listed FCT, then there was an equal chance of it being either Listed FCT 20a or Listed FCT 23a'.[721]
4. As noted earlier, Dr van der Moezel agreed in his oral evidence that Griffin was not suggesting the degree of likelihood of either allocation.[722] I have also earlier explained my views on Tauss and Weston's reasoning process. I have explained why I consider that Tauss and Weston preferred the second classification method and that they took into account other matters in concluding Site 22 was FCT 20a.[723]
5. Dr van der Moezel concluded, in his third report, that the Griffin data did not provide a sufficient basis for the conclusion that the vegetation at the site is properly classified as FCT 20a.[724] However, again, Tauss and Weston did not conclude the vegetation was FCT 20a purely on the basis of Griffin's analysis. All of the experts agreed that Griffin's work was just one part of the evidence to be considered, and that the ultimate decision was best made by those in the field.
6. In his oral evidence, Dr van der Moezel was asked by Mr Coyle whether Site 22 should have been assigned to FCT 23a or perhaps not to any of the FCTs. Dr van der Moezel had not been asked to address this question in his reports. Although Mr Coyle acted for the Valentino parties and called Dr van der Moezel on their behalf, no objection was taken to him asking the question. Dr van der Moezel replied:

Firstly, it's not in my evidence, but you're asking me the question now so going to sound like a fence sitter, but it's not really. I think it's probably a transitional site, transitional in space, not in time necessarily, between floristic community type 20A and 23A on the basis of the underlying soil type and land form is transitional and it has elements of - it has species that might be more typically found in 20A and some species might typically be found in 23A. Sorry if it sound like a fence sitter, but it happens in nature. A lot of transitional sites and I think this is where this one sits.

1. Dr van der Moezel was not asked to provide any further explanation of this point. Later, he was asked to comment on the discussion relating to Dr Mattiske's comparison of species. He said:

I was thinking at the time, listening to that evidence and writing down the number of the percentages of typical species that are in 20a and 23a, that it sounds very much like a transitional site to me.

1. Again, Dr van der Moezel was not asked to explain this.
2. As this was not the subject of any of Dr van der Moezel's reports, I am left with the reasoning provided in these two answers. The limited reasoning affects the weight I give to his opinion.

1. In his report, Mr Keighery explained why he considered Tauss and Weston's conclusion to be justified and scientifically valid based on the data available.[725] He explained how the location of Site 22, being on the margins of the SCP and the Pinjarra Plain, could have influenced the species on the site. He said this resulted in local variations and, at the level of a regional analysis, the site fits FCT 20a.
2. Mr Keighery said (citations omitted):[726]

One could allocate the site based on a visual inspection of the species list noting that it contains a majority of 'typical' species of FCT 20a, the site's occurrence on the correct geomorphology for this FCT 24 and the fact that nearby Banksia woodlands on this geomorphology also are allocated to FCT 20a. However, Tauss and Weston undertook to obtain an independent analysis of their data by an observer who had no prior knowledge of the area and used a comparison between the original data from Gibson et al., 1994 and the quadrats, which is the only scientifically valid means to test allocating sites to FCTs. The analysis by Griffin confirmed Site 22 was an Eastern side of the Swan Coastal Plain Banksia Woodland most closely related to FCT 20a. Tauss and Weston then added their extensive local knowledge of the study area to this conclusion to allocate Site 22 to FCT 20a.

After reading the Tauss and Weston report and the analysis by Griffin I conclude that the conclusion of Tauss and Weston is justified and is scientifically valid based on the data available.

1. Mr Keighery had particular expertise with FCT 20a, as was implicitly acknowledged by Dr Mattiske. He was one of the authors of the Gibson and Keighery Report.
2. Mr Keighery fully explained his reasoning. He was not damaged by crossexamination.
3. I accept Mr Keighery's evidence.

1. Although my focus has been on the evidence of the experts, I will deal briefly with some additional criticisms made by the Valentino parties.
2. The written closing submissions of the Valentino parties on this issue, Issue 2 in the Counterclaim, comprised 28 pages. I will not deal with assertions that were not the subject of expert evidence but properly could have been.[727] Nor will I deal with criticisms that were obviously based on misunderstandings or assertions unsupported by the evidence.[728] Further, I will not deal with submissions that are selfevidently unsustainable.[729]

1. The Valentino parties asserted that Tauss and Weston misrepresented the outcome of the multivariate analysis conducted by Griffin.
2. In their report, Tauss and Weston summarised the detailed information they had collected for each of the survey sites in Appendix C. Tauss and Weston said they provided data in 12 fields for most of the sites, the second field being 'Most similar SCP Floristic Community Type(s) from multivariate analysis [and conservation status]'. In respect of those sites for which they included data in this second field, the abbreviated heading was 'Most similar SCP Floristic Community Type(s) from multivariate analysis'.[730]
3. In relation to Sites 22, 23 and 24, Tauss and Weston wrote for this second field 'This vegetation has affinities to Banksia woodlands over Speciesrich Dense Shrublands (FCT 20a). The WA DEC consider FCT 20a to be an (Endangered) Threatened Ecological Community'.[731]
4. The Valentino parties submitted that this misrepresented the outcome of the multivariate analysis, because the summary column in Griffin's table of results did not refer to FCT 20a for Site 23 and did not only refer to FCT 20a for Sites 22 and 24.[732]
5. I accept that the heading did not make it plain that Griffin's analysis had produced multiple results for each site using the two methods, nor did it refer to Tauss and Weston's critical analysis of Griffin's results which led to their conclusions. I do not, however, accept that it was of any consequence having regard to their report as a whole.
6. The Tauss and Weston Report reproduced Griffin's table accurately in the body of their discussion of his analysis, in section 5.2.3. Tauss and Weston added to that table their own views of the FCTs suggested by total evidence. For Sites 22, 23 and 24, they recorded FCT 20a.[733] The Tauss and Weston Report also annexed Griffin's report in its entirety.[734]
7. In Tauss and Weston's discussion of Griffin's analysis, they discussed the limitations and value of his results, and noted their conclusion that consideration of his results with the ecological evidence from their survey led to the inference that six groups of sites (FCT 3a, FCT 20a, FCTs 7/8/10a, ML, Degraded Sites and Unassigned Sites) are in the MKSEA. In doing so, they referred to where his results were to be found.[735] Tauss and Weston then set out the results for the specific groups of FCTs they had identified.[736]

1. Although it was not entirely clear, the Valentino parties appeared to submit that Tauss and Weston had not determined Site 22 was FCT 20a, but had merely said it had 'affinities' to FCT 20a.[737] If indeed the Valentino parties intended to make that submission, I do not accept it. I have already set out Tauss and Weston's reasoning and findings. On an ordinary reading of their report, they clearly determined Site 22 was FCT 20a. The Valentino parties' experts read the Tauss and Weston Report in the same way.[738]

1. The Valentino Counterclaim Submissions contended that Tauss and Weston did not actually map the area of the FCT 20a on the Property, but rather mapped the area of the vegetation unit T10.[739]
2. First, the Valentino parties contended:[740]

[Tauss and Weston] assert that they mapped the TEC on a scale of 1:2,000 but the only map provided with their report is on a scale of 1:13,500, namely Figure 11. It must be concluded that the only mapping that Tauss & Weston did was of the entire vegetation unit on [the Property] as Figure 11 coincides, in the extent of the area mapped, exactly with Figure 10.

... Nowhere in the [Tauss and Weston] report is there any evidence of the mapping of [FCT 20a].

1. The Valentino parties did not identify the page of the voluminous report at which Tauss and Weston asserted that they mapped the TEC on a scale of 1:2,000. I was unable to find it.[741]
2. In any event, Tauss and Weston did not say that they mapped the vegetation unit on a scale of 1:13,500. They said they mapped it on a scale of 1:2,000.[742] Accordingly, even if Tauss and Weston said that they mapped the TEC on a scale of 1:2,000, this would not support the proposition that Figure 11 was a map of the vegetation unit. Both Figure 10 (the vegetation units) and Figure 11 (FCTs and TECs) were on a scale of 1:13,500.
3. In addition, the report expressly states that the FCTs were mapped in Figure 11.[743]
4. Second, while not entirely clear, the closing submissions of the Valentino parties appeared to be alleging that it could not be concluded that the quadrat on Site 22 was representative of the larger Area identified in Figures 10 and 11.[744]
5. In Mr Coyle's opening address, he said:[745]

In one critical aspect of our claim that is quite clear between us and the government parties is the final stage, so to speak, prior to the letter being drafted and sent with the map and that relates to the extrapolation from Site 22Q [Site 22Q was another name used for Site 22] which is 100 square metres to the 7000 square metre area.

Now, we say that when one has close regard to the Tauss and Weston report and some of the earlier material and to the statement of Val English from the department you are left an absence of any explanation about how Site 22Q was subsequently found to be - or the FCT was consistently covering the 7000 square metre area. We say there's a big gap there.

1. The Government parties said that they were surprised by this submission. Ms Shaw pointed out that this contention was not pleaded by the Valentino parties. She advised that, in late May, shortly before the trial, the Valentino parties foreshadowed that they may raise it as an issue. Ms Shaw noted that no attempt had been made to amend the pleadings and said that she would object if Mr Coyle sought to elicit expert evidence on the topic from the experts orally.[746]
2. The following Monday, 25 June 2018, Mr Coyle made an application to amend the pleading to raise this issue.[747] After extensive argument, Mr Coyle advised that he was instructed to withdraw the application to amend.[748]
3. Accordingly, I consider I should treat the contention as having been abandoned.

Tauss and Weston assigned Site 22 for conservation reasons

1. The Valentino parties submitted that Tauss and Weston classified Site 22 as FCT 20a because of their evaluation of its conservation significance, rather than because they considered it was properly to be classified as FCT 20a on the evidence.
2. I do not accept this. I accept that Tauss and Weston did evaluate the conservation significance of the vegetation in the MKSEA. However, they assigned the vegetation in Site 22 to FCT 20a on the basis of the floristic analysis and their critical analysis of that, as I have discussed earlier. Further, as pointed out by Mr Keighery, if they had been seeking to ensure the area would be preserved, they did not need to assign it as FCT 20a to achieve that.[749]

Tauss and Weston failed to use the Gibson and Keighery methodology

1. The Valentino parties said that it 'appears to be common ground' that a determination that Site 22 was FCT 20a would only be scientifically valid if the Gibson and Keighery methodology was used.[750] While this overstated the position, the evidence was that this was the best method.[751]
2. The Valentino parties submitted that Tauss and Weston did not follow the Gibson and Keighery methodology. I do not accept that. The Tauss and Weston Report shows that they did.
3. In any event, as discussed earlier,[752] the experts did not contend that Tauss and Weston's methodology was deficient.

Tauss and Weston relied on Site 24's proximity to Site 22

1. The Valentino parties submitted that Tauss and Weston 'impermissibly used, as a primary reason for assigning Site [22] to FCT 20a, that it was physically proximate to Site [24]'.[753]
2. Tauss and Weston did not use the proximity of Site 24 as a reason, let alone a primary reason, for assigning Site 22 to FCT 20a.
3. Tauss and Weston said that their consideration of the analysis and evidence led to the inference that six groups of sites (FCT 3a, FCT 20a, FCTs 7/8/10a, ML, Degraded Sites and Unassigned Sites) are in the MKSEA.[754]
4. They then set out the results for each of those six groups. Group B was FCT 20a. The discussion of those results was set out earlier. In short, Tauss and Weston concluded that Sites 22, 23 and 24 were FCT 20a. They did not rely on the proximity of Site 24 to Site 22 in reaching their view about Site 22. They began by discussing, in relation to both Site 22 and Site 24, the outcome of the second classification method. They then noted that the nearest neighbours shown by the nearest neighbour analysis, to both of those sites, were Sites 23, 25 and 29.[755]
5. The two nearest neighbours to Site 22 shown by the nearest neighbour analysis were Sites 23 and 25. Site 24 was not one of the 10 nearest neighbours.[756]
6. Tauss and Weston did note that Sites 22, 23 and 24 were in close proximity to each other and that all included Cyathochaeta equitans, as discussed earlier. They also noted that both Site 22 and Site 24 were species rich. However, it is clear that they were discussing all three sites and identifying their conclusions for each. I do not accept that they relied upon the proximity of Site 24 as a reason for assigning Site 22 to FCT 20a, and certainly not as a primary reason.

1. The Valentino parties contended that the FCT on the Area was in fact FCT 23a.[757] FCT 23a is not a TEC.
2. In support of this contention, the Valentino parties relied on three matters.
3. First, the Valentino parties relied on the fact that Banksia attenuata trees were not recorded as present on Site 22. I have already explained that the names given to the FCTs by Gibson and Keighery were not definitions, but were merely labels, and that the absence of these trees did not suggest Site 22 was not FCT 20a. Further, Banksia attenuata trees were found in all of the sites identified by Gibson and Keighery as FCT 23a.[758]
4. Second, the Valentino parties relied on Dr Mattiske's species comparison. I have already explained why that comparison was of little value. I have also already noted Dr Mattiske's concession that 'maybe I've gone too far saying it is 23a'. Further, if the comparison did have any value, it would suggest, after the numerical corrections are made, that Site 22 was unlikely to be FCT 23a.
5. Third, the Valentino parties relied on the fact that Banksia menziesii trees were recorded as present on Site 22 by the Tauss and Weston survey. As I will explain, this is a neutral factor.
6. Banksia menziesii is listed as a 'typical' tree of FCT 23a in the Gibson and Keighery Report,[759] but is not listed as a 'typical' or 'other common' tree of FCT 20a in the Gibson and Keighery Report. Nevertheless, Banksia menziesii was found at 43% of the sites identified by Gibson and Keighery as belonging to FCT 20a.[760]
7. Mr Keighery explained that:[761]

The Swan Coastal Plain Survey was a regional study and our sites rarely had Banksia menziesii present in our quadrats, meaning that we did not rank this as a 'typical' in more than 75% of sites or an 'other common species' in 50% of sites. Normally, on the Swan Coastal Plain north of Serpentine, the two species (Banksia menziesii and Banksia attenuata) occur together or in some localities one species predominates. So sampling more sites could lift the recording of either species.

1. Additionally, Mr Keighery said that Banksia attenuata and Banksia menziesii are codominant species and several sites that have been subsequently identified as belonging to FCT 20a (that is, after the Gibson and Keighery Report) have been 'mainly to entirely Banksia menziesii'.[762]
2. I have already explained that the names given to the FCTs by Gibson and Keighery were not definitions, but were merely labels. The positive presence of Banksia menziesii on the Property does not indicate that the vegetation in Site 22 was not properly assigned to FCT 20a and should instead have been assigned to FCT 23a.[763]
3. I am not satisfied that Site 22, and the Area, should have been assigned to FCT 23a.

1. I am also not satisfied that the Valentino parties have proved, on the balance of probabilities, that Tauss and Weston's conclusion that the vegetation in the Area should be assigned to FCT 20a was not justified.
2. I have explained why I do not accept the various criticisms of Tauss and Weston's reasoning by Dr Mattiske and Dr van der Moezel, and why I do not accept other submissions made by the Valentino parties.
3. In terms of the experts' opinions, Dr Mattiske's final position was that she did not know. Dr van der Moezel's oral evidence was that he thought it was a transitional site. Mr Keighery had no reservations that Site 22 was properly assigned to FCT 20a. I have set out my evaluation of the points made by each of the experts above, and commented on issues of weight. I have explained why I accept Mr Keighery's evidence.
4. All of the experts agreed that determining whether an area is a particular FCT is a matter of expert judgment on which reasonable minds may differ.[764] All agreed that the persons best placed to make that judgment were those who conducted the formal surveys of the Property.[765] Those people were Tauss and Weston. Neither Dr van der Moezel nor Dr Mattiske conducted a formal survey.
5. The Valentino parties accepted that they bore the burden of proving that Tauss and Weston's conclusion, that the vegetation in the Area should be assigned to FCT 20a, was not justified. They have failed to discharge that burden.
6. If I am wrong about this, the next question is whether the Valentino parties have proved the second matter that they are obliged to prove - that the Area was not in fact covered by FCT 20a and that Ms English was wrong to conclude it was.

1. For the same reasons as for my previous finding, I find that the Valentino parties have not proved that the Area was not covered by FCT 20a or that Ms English was wrong to conclude it was.
2. Further support for this conclusion comes from the evidence of Ms English, and, perhaps, from a submission made by the Valentino parties. I will deal with the submission first.

1. In his oral closing address, Mr Coyle said this:[766]

Mr van der Moezel, you will recall, said he was a fencesitter, and what he means by that is he's a firm fencesitter. And I think your Honour asked him a question and he said, quite clearly, that his opinion was that he could not see any proper basis for travelling beyond and transcending that, that equivocation.

1. I asked Mr Coyle how that would assist him to prove that the Area was not SCP 20a.
2. He replied (emphasis added):[767]

[W]e don't need your Honour to find for us to succeed anything more than that. The best position, the most scientifically supported position to the exclusion of all others, is that it rests on uncertainty. It's not 20a. It can't be put into 20a or 23a because there's no support for that.

1. I then asked Mr Coyle if I had misunderstood his concession that he bore the onus of proving that the Area was not SCP 20a. He said he did not resile from that.[768]
2. After further discussion on the meaning of his concession, I indicated that, if he had conceded that he had to prove the Area was not SCP 20a, he would have to prove it, unless he sought to withdraw the concession. At Mr Coyle's request, the issue was postponed until the next day.[769]
3. The following day, Mr Coyle indicated that he accepted that the Government parties had correctly identified that the Valentino parties bore the burden of proving that the Area was not SCP 20a, and he did not seek to withdraw his concession. He went on to state that I could 'properly be persuaded' that it was not.[770] He also recast his characterisation of Dr van der Moezel's evidence.[771]
4. In that context, I am left with Mr Coyle's statement that the most scientifically supported position is that 'it rests on uncertainty. It's not 20a. It can't be put into 20a or 23a because there's no support for that'.[772] While this of course does not mean that he was right to say that, it arguably indicates that the expert evidence at its highest for the Valentino parties did not support a conclusion that the Area was not SCP 20a. However, as these submissions were made orally, I have concluded that I should not rely on them adversely to the Valentino parties. Instead, I will disregard them.

1. The decision to list the Area on the Property as a TEC was made by Ms English. This decision was challenged by the Valentino parties. For that reason, she was not an independent expert and did not participate in the 'hottubbing' of the experts. Nevertheless, she is an experienced botanist with extensive expertise in TECs.[773]
2. Ms English has a Bachelor of Science Degree in biology and a Postgraduate Diploma in environmental impact assessment.[774]
3. She is employed as principal ecologist in the Species and Communities Branch of the Department. She has published widely on the subject of TECs. Since 1994, she has worked in the Department on a series of projects, and occupied various positions, relating to TECs.
4. She was project officer on a project to develop the procedures for identifying, listing, and conserving TECs in Western Australia.
5. Ms English has been an official member of the TEC Scientific Committee, which replaced the TECSAC, since 6 November 2001.
6. Ms English is currently the manager of 'the TEC specialist group', which manages the ongoing process of nominating and listing TECs and maintaining the TEC database on behalf of the Department. The TEC specialist group evaluates a potential TEC occurrence to determine its veracity.
7. I am satisfied that Ms English was an experienced botanist, and a credible and reliable witness.

1. Ms English explained the range of actions that the TEC specialist group might take in an evaluation, depending on the nature of the information provided and the reliability of the source. Ms English's duties include, where necessary, undertaking site visits and surveys to clarify the status of potential TEC occurrences, including by verifying or determining their condition and boundaries, and evaluating the veracity of claims that a TEC occurs at the site. This includes consulting with persons with specific expertise as required. On other occasions, the information and reliability of the source means that the evaluation can be done without a site visit or survey. Ms English did not consider there was any need for a site visit or survey in order to evaluate the Tauss and Weston Report.[775]

1. On 24 October 2007, Ms English and a colleague visited some sites within the MKSEA with Dr Weston, including the one on the Property, Site 22. This was the day after Tauss and Weston did their first formal survey of Site 22.
2. Understandably, Ms English now has little memory of the visits and does not specifically recall Site 22. However, she did make notes when she was in the field.[776]
3. Her notes indicate that Dr Weston showed her the location of a series of potential occurrences of TECs, that she numbered 1 11.[777]
4. The site she numbered as '1' in her notes was on the Property. She recorded her view that the vegetation was in 'good, excellent condition' and noted down a number of species. She also wrote 'poss 20A'.[778] She said it was 'an awfully long time ago but I can remember them [Tauss and Weston] saying that there were a few floristic community types that they would like us to look at. And one of them was, possibly, 20a'.[779] She said she would interpret her notes to mean that this was said in relation to the site on the Property, Site 22.[780]
5. Ms English said that, when she visited the lot in 2007, she was quite satisfied with Tauss and Weston's suppositions (at the time of her visit, the Tauss and Weston Report had obviously not been completed). She said their suppositions were quite logical.[781] She agreed that she did not conduct a detailed survey and neither, at that time, had Tauss and Weston done so.[782]

1. When Ms English received the Tauss and Weston Report, she reviewed it to see whether it was logical, consistent and scientifically valid.[783]
2. Ms English was satisfied 'with the level of scientific rigor applied' to Tauss and Weston's survey, Griffin's analysis and Tauss and Weston's critical review of Griffin's analysis.[784]
3. Ms English formed the view that the methods used by Tauss and Weston, as reported by them, to identify TECs were appropriate and supported and that their conclusions were explained in detail.[785]
4. Ms English said that the best way to determine FCTs on the southern SCP is to replicate the survey methods used in the Gibson and Keighery Report. She referred to guidelines of the appropriate survey methodology for determining TECs, provided by the Department to consultants. She said that she could see that Tauss and Weston had done everything the Department asked consultants to do in identifying TECs on the SCP. She said they had used the appropriate methodology, and explained why she said that.[786]
5. Having been satisfied with Tauss and Weston's methodology and conclusions on reviewing their report, and having visited the Property with Dr Weston, Ms English was satisfied that it was unnecessary that an additional formal survey be conducted.[787]

Ms English's conclusion that it should be listed

In this case, having reviewed the Tauss and Weston Report, and being satisfied with the methodology and conclusions set out in it, and having visited [the Property] with Dr Weston and Ms Downes on 24 October 2007, I was satisfied that [the Property] could be listed as an occurrence of TEC SCP20a [the label used by the Department for FCT 20a] in the Department's database.

1. In her oral evidence, Ms English explained that she was satisfied that the Property should be listed as an occurrence of TEC SCP 20a from the 'full weight of all the information, including a site visit which indicated to me that it was compatible with 20a'. By 'compatible', she meant that what she saw of the plants and habitat when she was there was compatible with 20a. She said that, if it had not been compatible, she would have written that in her note. She said she remembered thinking at the time that it was likely to be the TEC that Tauss and Weston thought it was (FCT 20a).[789]
2. Following Ms English's decision that the Property should be listed in the database as an occurrence of SCP 20a, the full boundary location of the Area of the TEC was entered into the database, based on Tauss and Weston's mapping.[790]
3. Subsequently, Ms English sent the Letter to Valentino.
4. I am not satisfied on the balance of probabilities that the Area was not covered by FCT 20a and that Ms English was wrong to conclude it was.

Issue 3 - did the Letter notify of the area on the Property covered by the TEC?

1. Issue 3 is whether, as a matter of fact and law, the Letter notified Valentino of the area on the Property covered by the TEC within the meaning of cl 4(5)(b) of the ESA Notice.
2. The relevant provisions of the ESA Notice are set out earlier in these reasons. Under cl 4(5)(b) of the ESA Notice, an area that would otherwise be an ESA because of cl 4 is (relevantly) not an ESA unless the owner of the land has been notified of 'the area covered by' the TEC.
3. The Valentino parties argued that the Letter did not notify Valentino of 'the area on the Property covered by the TEC' as required by cl 4(5)(b) because the identification of the area in the Letter was not sufficiently precise.[791]

Presumption against interference with vested property rights?

1. The Valentino parties argued that, '[c]onsistent with the relevant principles of statutory construction, the notice requirement under cl 4(5)(b) of the Gazettal Notice should be strictly construed. This means that a notice must clearly identify "the area covered by the TEC" '.[792]
2. The reference to 'the relevant principles of statutory construction' appears to be a reference to the presumption that legislation does not interfere with vested property rights. This was raised by the Valentino parties in their written opening submissions.[793] The Government parties' opening submissions, repeated in their closing submissions, set out the relevant principles, including the circumstances in which the presumption will not apply.[794]
3. The Government parties submitted that the ESA Notice did not affect any vested property rights. Further, they submitted that, to the extent it affected property rights, it did so clearly. Finally, they submitted that the Valentino parties had not identified any constructional choice.[795]
4. The Valentino parties did not respond to these submissions in their oral or written closing submissions.
5. I accept, with one qualification, the Government parties' submissions. The qualification is that the Valentino parties did identify a constructional choice in their opening submissions.[796]
6. The Government parties had initially submitted that cl 4(5)(a) had been satisfied by the publication of the TECs and that this was sufficient to make the area an ESA, without the need for cl 4(5)(b) to be satisfied. The Valentino parties submitted that, regardless of publication, cl 4(5)(b) had to be satisfied. This was the constructional choice they identified, and it was Issue 7 in Valentino's first list of counterclaim issues. However, during the trial, the Government parties indicated that they did not press the proposition that there had been publication. Issue 7 was struck out of the final list. Accordingly, from this point on, there was no apparent constructional choice.
7. The Valentino parties' closing submissions, set out earlier, sought to apply the statutory construction principle to the construction of the notice requirement under cl 4(5)(b) of the Gazettal Notice. It was submitted that, strictly construing that requirement meant that a notice must clearly identify 'the area covered by the TEC'. To the extent that this could be described as a constructional choice, I discuss later whether the Letter did meet the requirement of identifying the area covered.
8. In any event, it is my view that the ESA Notice does not attract the presumption. Given that the Valentino parties did not respond to the Government parties' submissions at all, despite those submissions having first been made in the Government parties' opening submissions,[797] I consider that I can deal with the issue very briefly.
9. While I accept the Government parties' submissions on this issue, the most obvious obstacle to the application of the presumption is that the ESA Notice does not, in fact, affect any vested property rights.
10. The effect of an area being declared to be an ESA is only that the NonESA exemptions do not apply. The effect is not to prohibit clearing of native vegetation in the area.
11. In 2003, prior to the ESA Notice, the Clearing Provisions removed the right of any person to clear native vegetation without a clearing permit unless a relevant exemption applied.
12. In 2004, interim regulations in the Clearing Regulations declared any area covered by a TEC to be an ESA in certain circumstances.[798]
13. The ESA Notice simply replaced the interim regulations.

1. The Letter stated that it enclosed a map showing the approximate location of the TEC on the Property and that the boundaries shown on the map were an approximation.
2. The map enclosed with the Letter reproduced an aerial photograph of the Property and parts of adjacent properties. The map was headed 'Occurrence of the threatened ecological community "Banksia attenuata woodland over species rich dense shrublands" [on the Property]'. The legend indicated that the area enclosed by the crimson line was the approximate location of the TEC. The map included a disclaimer at the bottom stating that 'The Dept of Environment and Conservation does not guarantee that this map is without flaw of any kind and disclaims all liability for any errors, loss or other consequence which may arise from relying on any information depicted'.
3. The boundary of the TEC shown on the map was based on the area of the TEC mapped by Tauss and Weston (as shown in Figure 11 of their report, and to which I have referred as 'the Area'), using Tauss and Weston's original data files, called 'shapefiles'. Minor adjustments were made to exclude small portions along the firebreaks where vegetation had been cleared. A shapefile is a digital file that contains locational information for a digital mapping system which can be used to generate a map of an area.[799]
4. The Letter invited Valentino to contact the Department if, among other things, Valentino needed help in identifying the TEC, and provided the number of the contact officer.

1. The Valentino parties accepted that the requirement to give notice of 'the area covered by the TEC' did not mean that the notice had to advise of the area by reference to precise GPS coordinates, or that the area had to be marked out with survey pegs. It was accepted that some level of imprecision could still satisfy the requirement.[800] This concession was properly made.
2. The extent of precision required by cl 4(5)(b) must be evaluated in light of the context of the subclause and the ESA Notice as a whole, as well as the purpose of the ESA Notice. In my view, the objective intention was that the notice must provide the approximate location of the area covered by the TEC. While I accept that it would have been possible to send out officers to accurately map the boundaries with GPS, this would involve additional cost and time. In my view, it was not intended that that level of precision be required.
3. The purpose of the ESA Notice was to provide a mechanism whereby ESAs could be protected, subject to the owners first being notified of their approximate location. This would ensure that an owner who wished to undertake any clearing in that area would be aware of the existence of the TEC.
4. If the owner wished to know the precise boundaries of the TEC, the owner could make enquiries. As I have noted, the Letter invited the owner to contact the Department if they needed help in identifying the TEC. It is apparent from the evidence that departmental and local government officers were willing to attend an individual property and give advice.

1. I accept that the Letter did not use the word 'cover'. I accept that the Letter did not identify, or purport to identify, the precise location of the area covered by the TEC. However, it did identify the approximate location. In my view, this notified Valentino of the area on the Property 'covered by' the TEC as required by cl 4(5)(b).

1. I have set out my conclusions in most sections of the above reasons. In summary, I found as follows.
2. The Minister determined that Banksia attenuata woodlands over species rich dense shrublands, FCT 20a, is a 'threatened ecological community' within the meaning of that term as defined in cl 3 of the ESA Notice.
3. I am not satisfied that the Area was not covered by FCT 20a or that Ms English was wrong to conclude it was.
4. The Letter notified Valentino of the area on the Property covered by the TEC within the meaning of cl 4(5)(b) of the ESA Notice.
5. The counterclaim should be dismissed.

1. In short, I find for Mr Ardizzone in relation to his breach of contract claim against Valentino and his claim under s 18 of the ACL against all of the defendants. I find against him in relation to his claims under s 30 of the ACL.
2. I find against the Valentino parties in relation to their counterclaim.
3. I will hear from the parties as to the appropriate orders and costs. In particular, I will hear from the parties in the original action as to the appropriate quantum of damages to reflect my findings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate/Orderly to the Honourable Justice Archer

[2] Schedule 2 to the Competition and Consumer Act 2010 (Cth).

[3] ReAmended Statement of Claim filed 12 June 2018 (Statement of Claim) [19], [24] [29].

[5] These provisions are contained in div 2 of pt V of the EP Act.

[6] The term 'clearing' is defined in s 51A of the EP Act, and includes removing native vegetation and acts that cause substantial damage to native vegetation.

[7] Schedule 6 to the EP Act relates to, among other things, assessed schemes and subdivision approvals.

[11] The amendment to the definition in the EP Act was made by the Biodiversity Conservation Act 2016, which became operative on 1 January 2019.

[14] Sections 51B(2) and (3) of the EP Act.

[15] Interpretation Act 1984 (WA), s 41(1)(a).

[17] Declaration under s 178, s 181, and s 183 of the Environment Protection and Biodiversity Conservation Act 1999 - List of threatened species, List of threatened ecological communities and List of threatening processes.

[19] The Gibson and Keighery Report is exhibit 1.3.

[27] See under the heading 'Valentino parties receive the Letter and communicate with Mr La Rocca'.

[29] The ReAmended Substituted Defence and Amended Counterclaim filed 10 June 2018 (Valentino's Defence).

[30] During the hearing, Mr Coyle confirmed that pars 8.6(a)(i), 8.6(f), 8.6(g)(ii) and (iii) (and 8.6(g)(i) merely repeated pleading elsewhere) were withdrawn. See ts 227 228, 240, 1255, 1262 - 1263, 1270 and the final list of issues which struck out various issues raised in this pleading.

[31] During the hearing, Mr Coyle confirmed that each of pars 8.6(a)(ii), (iii) and (iv) of Valentino's Defence raised the same point (Issue 1 in the counterclaim). See ts 1254 1255.

[33] Under the heading 'The ESA notice in issue in this case' in the section headed 'Legislative and regulatory framework'.

[35] ts 1129. See also exhibit 6.79 page 2090.

[37] See the unpaginated and unlabelled attachment titled 'Report Amendment No 126' and 'Town Planning Scheme Amendment No 126 Report' section 6.1 in exhibit 15.3.

[38] Statement of Agreed Facts filed 1 July 2018.

[40] This was not in the Statement of Agreed Facts, but was common ground.

[41] Exhibit 6.79. Full details of the documents are set out later under the heading 'The Marketing Documents'.

[42] It was unclear whether the first inspection occurred before or after Mr Ardizzone signed the offer. However, Mr Ardizzone and Mr La Rocca met on 1 December 2012, at which time Mr Ardizzone signed the offer.

[44] ts 270 and exhibit 13.11.1 [34].

[45] Exhibit 13.11.1 [34]. To the extent that this evidence is against Mr La Rocca's interest, I accept it. I explain my findings on his credibility under the heading 'Assessment of the witnesses'.

[49] See under the heading 'Assessment of the witnesses'.

[59] Later, under the heading 'What were the alleged representations', I explain why the pleaded allegation that the Marketing Documents represented that there was 'no restriction' on use was not to be read literally.

[60] See the discussion under the heading 'Defendants' position'.

[61] Initially, the parties had identified as Issue 13 when the Valentino parties knew about the Letter and/or the existence of a TEC on the Property. Issue 13 was struck out in the final list of issues.

[62] Issue 14 was when the Agent parties knew about the Letter or the existence of a TEC on the Property.

[68] The differences between his first witness statement and his second witness statement on this issue are discussed in the section headed 'Assessment of the witnesses'.

[75] The Agent parties filed a Reamended Defence (Agents' PostTrial Defence) after the hearing, with leave, admitting in par 15 that Mr Colby sent the email attaching the Letter (although saying that Mr La Rocca had not read it) and admitting in par 19 that they did not disclose the Letter to Mr Ardizzone.

[76] Amended Defence of the Third and Fourth Defendant filed 10 July 2015 (Agents' PreTrial Defence).

[77] See the section headed 'Assessment of the witnesses'.

[78] See the section headed 'Assessment of the witnesses'.

[79] Exhibit 13.11.1 [21] [23], [72] [76].

[94] See under the heading 'Mr La Rocca fails to disclose the Letter'.

[95] This is explained in a subsequent section headed 'Assessment of the witnesses'.

[96] This had been Issue 15, but was struck out in the final list of issues.

[101] Exhibit 13.9.1 [16]. See also ts 572 574.

[103] This is set out in the previous section. See also the section headed 'Assessment of the witnesses'.

[107] This is discussed further under the heading 'Assessment of the witnesses'.

[111] See under the heading 'Events leading up to the signing of the Contract'.

[118] There was evidence that at least some of the trees cleared had been planted by a previous owner of the Property. The term 'native vegetation' in the EP Act is defined to exclude vegetation that was intentionally sown, planted or propagated.

[119] Issue 11A was whether Mr Ardizzone unlawfully cleared the land. It was common ground that he did.

[121] ts 444 445, 460 and exhibit 13.7.1 [38] [39].

[122] Exhibit 13.1.1 [172] [188], exhibit 9.200.

[123] Exhibit 13.2.2 [101] [102], [114] [115]. See also exhibits 9.172, 9.206, 10.227, 10.228, 10.234, 11.252, 11.254, ts 455.

[124] See under the heading 'Valentino parties receive the Letter and communicate with Mr La Rocca'.

[129] See the section headed 'Assessment of the witnesses'.

[130] See the section headed 'Assessment of the witnesses'.

[133] See under the heading 'Assessment of the witnesses'.

[135] This is explained further under the heading 'Assessment of the witnesses', where I deal with Mr Ardizzone's credibility generally and Ms Colby's evidence in relation to this conversation.

[136] Exhibit 13.12.1 [151], [157].

[139] Exhibit 13.12.1 [163] [164].

[141] The fence was installed in accordance with the second proposed fence line shown in exhibit 9.200 page 3242, leaving part of the TEC area on the houseside on the outside of the fence, in the shape of a right angle. That area, on the outside of the fence, can be seen to have been cleared in exhibit 17.

[142] ts 311. See also ts 302 and 315.

[153] First and Second Defendants' Submissions filed 12 November 2018 [6], [11] [15].

[154] See the section headed 'Assessment of the witnesses'.

[155] See the evidence referred to in the Valentino parties' written closing submissions (Valentino Submissions) [27] and in Mr Ardizzone's written closing submissions (Ardizzone Submissions) [92].

[156] See under the heading 'Assessment of the witnesses'.

[162] Exhibit 10.218 page 3321, exhibit 10.228 page 3484.

[163] Various witness statements were tendered by consent, without the witnesses being called, and a number of survey documents and maps were also tendered by consent. The most useful document is the map 'NEP4' attached to the witness statement of Ms Patterson, exhibit 13.6.

[168] ts 755. See also the Ardizzone Submissions [21.12].

[169] See, for example, Ardizzone Submissions [21.3], [21.9], [21.10], [21.11], [21.13].

[172] Ardizzone Submissions [21.2] and [21.8].

[173] See under the heading 'Sand deposit in 2015'.

[174] See, for example, ts 359, 400 406.

[175] As noted earlier, 'clearing' is defined in section 51A of the EP Act, and includes acts that cause substantial damage to native vegetation.

[176] To the extent it is possible or meaningful to do so, compare exhibit 10.223 and exhibit 17.

[177] In relation to events that occurred when he discovered the existence of the TEC, his evidence was consistent with documents he had written around that time - see his letters of complaint to the City, the Ombudsman, Mr La Rocca and Valentino, exhibits 9.176, 9.184, 9.185 and 9.186.

[178] For example, the phone records in exhibits 25 and 32, produced on subpoena during the trial. See also his notes of his conversation with Ms Colby, exhibit 9.163.

[182] Exhibit 13.1.1 [116] and ts 356.

[184] See under the headings 'Settlement' and 'Mr Ardizzone asked the defendants if they knew about the TEC'.

[185] See also under the heading 'Did Mr Ardizzone cause or contribute to any loss?'

[186] Valentino Submissions [33] [36]. See also ts 1247.

[187] See under the heading 'Mr Ardizzone wrote letters of complaint'.

[191] ts 594 595. It became exhibit 24.

[194] Ardizzone Submissions [11] [18].

[200] The relevance, or lack of relevance, of Mr Vucinic is discussed under the heading 'Was Mr Ardizzone told by Mr Vucinic about clearing problems?'

[208] See the section headed 'Assessment of the witnesses'.

[209] See the section headed 'Assessment of the witnesses'.

[211] ts 669 672, 778. The documents were provisionally given the exhibit number 36.

[213] Valentino Submissions [16] [20] and ts 1243 (Mr Coyle) and ts 670 672, 1307 1308 (Mr Hancy).

[214] Mr Ardizzone agreed it was two or three blocks away - ts 355.

[215] Exhibit 13.1.1 [116] and ts 356.

[218] The first of the aerial photos cited by the Valentino parties was exhibit 9.197 which appeared to be taken on 1 August 2014. However, a photo taken on 9 January 2013, before Mr Ardizzone took possession of the Property, showed that the clearing on Mr Vucinic's land had already occurred - see exhibit 7.101. Further, the documents sought to be tendered by the Agent parties in relation to Mr Vucinic's clearing, the Vucinic documents, were all dated 2012.

[219] Mr Ardizzone was asked if Mr La Rocca had said he could include a due diligence clause - ts 344. Elsewhere Mr Ardizzone denied Mr Vucinic had told him anything about issues that might arise in relation to clearing.

[220] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[221] Fazio v Fazio [2012] WASCA 72 [135].

[223] See Fazio v Fazio [140] as to the relevance of the pleadings. The Valentino Submissions [48] referred to pars 9 and 14 of the Agents' PreTrial Defence and pars 8.5 and 10 of their own defence. None of these paragraphs refer to anything said by Mr Vucinic.

[226] Fazio v Fazio [136]. See also [134] [135], [138] [141].

[227] Agents' Pre-Trial Defence [33.3].

[228] Agents' PreTrial Defence [20.3.6].

[230] Agents' PreTrial Defence [33.4].

[231] Agents' PreTrial Defence [20.17].

[234] See the written submissions filed by each defendant in relation to Issues 16 and 17, and ts 1264.

[236] See the conclusion to the discussion of Mr Ardizzone's credibility under the heading 'Assessment of the witnesses'. See also under the heading 'Did Mr Ardizzone cause or contribute to any loss?'

[237] It was not entirely clear what other relevance was being asserted, in view of the fact that Issue 19 was described in the list of issues as arising from what Mr La Rocca is alleged to have said to Mr Ardizzone, and the relevant paragraphs of the pleading were deleted. The defendants' submissions on Issue 19 were brief - see Valentino Submissions [130] and ts 1264 and Agent parties' written closing submissions (Agent Submissions) [53] and ts 1222 1223 (noting that Mr Hancy's oral submissions were based on the numbering in a draft list of issues which did not match the numbering in the list provided to me by the parties. Accordingly, Mr Hancy referred to Issue 19 as Issue 20, and his oral submissions on Issue 19 are a single paragraph commencing at the foot of ts 1222).

[239] See the discussion under the heading 'Would Mr Ardizzone have been able to clear the vegetation if it was not a TEC?'

[240] See under the heading 'Did a reasonable expectation arise?'

[241] See under the heading 'Value of the unrestricted area of the Property'.

[242] Agents' PostTrial Defence [33.3].

[243] Issue 11A was whether Mr Ardizzone unlawfully cleared the land. Mr Hancy indicated at ts 1214 that this only went to Issue 20.

[244] Agent Submissions [54] [56].

[248] See under the heading 'Events following the settlement'.

[250] See the discussion of the sand deposit in the section dealing with Mr Ardizzone's credibility.

[251] Exhibit 13.9.3 [2], exhibit 13.10.3 [2].

[252] Valentino's Defence [3.1] [3.4] (including the particulars), [9.1(b)], [9.2(a)] and [15.5].

[253] Valentino's Defence [9]. This was not admitted by the Agent parties.

[254] This is the section headed 'Is the TEC area available for use?'

[256] Exhibit 14.1 pages 5 9, in particular page 7.

[257] See under the heading 'Clearing Provisions' in the section headed 'Legislative and regulatory framework'.

[259] The NonESA exemptions are set out in the Clearing Regulations 2004, and are referred to in the departmental guides. The maximum area was one hectare but is now five hectares. Some of the exemptions do not apply if the vegetation is 'riparian' vegetation. This is defined in reg 3 as 'the distinctive vegetation associated with a wetland or watercourse', so is not relevant to the vegetation on the Property.

[262] As noted earlier, the power to grant or refuse a clearing permit has been vested in various departments over time. It is currently conferred on the CEO of the DWER. In these reasons, I use 'DWER' to mean the name of the department which had, or whose CEO had, the power to grant or refuse a clearing permit at the relevant time.

[264] Exhibit 14.1 page 8. The December 2014 Guide is Attachment 11 to exhibit 14.1.

[269] Exhibit 14.5 [4] [8] - which the experts agreed was a moot point.

[276] Agent Submissions [34] [35] and ts 1211 1212.

[279] See the discussion of Mr Coyle's submissions about degradation, under the heading 'Possible future events'.

[281] Agent Submissions [37] [41] and ts 1212.

[284] With the exception of the buffer zone, of which Mr Ardizzone can make limited use, as discussed later.

[285] See under the heading 'Clearing Provisions' in the section headed 'Legislative and regulatory framework'.

[286] See under the heading 'Expert evidence on the ability to clear'.

[287] Exhibit 10.234 page 3509 [17].

[289] Exhibit 10.218 page 3321 and exhibit 10.228 page 3484.

[290] This department was later amalgamated with other departments to form DWER.

[292] Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413 [49], cited with approval in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 [51].

[293] Spencer v The Commonwealth (1907) 5 CLR 418.

[295] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [163], [165] and [173]. Although this decision was overturned on appeal, the reason for that was unrelated to these principles - see McKay v Commissioner of Main Roads [2013] WASCA 135 [21], [137] [138].

[297] McKay (Court of Appeal decision) [21], [137] [138].

[298] as their Honours were at that time.

[299] McKay (Court of Appeal decision) [144].

[300] Royal Sydney Golf Club v Federal Commissioner of Taxation [1957] HCA 31; (1957) 97 CLR 379.

[302] See under the heading 'Assessment of loss'.

[304] Exhibit 15.3 pages 23 25. He assessed the value of the improvements in two of the properties he considered that were outside precinct 1.

[305] ts 1098 - 1100, exhibit 15.3 pages 21 - 26 (in particular page 24).

[317] ts 1106. I have already referred to the evidence about Bush Forever sites.

[321] See also the evidence of Mr Hughes at ts 1157, reiterating that the discussion related to the commercial usability of properties that had been identified by potential purchasers as being future industrial land or business development.

[322] Exhibit 15.3 page 23.5 and ts 1112 1113.

[326] ts 1237 1238 and 1306 and Agent Submissions [87] [92].

[328] See under the heading 'Was Mr Ardizzone told by Mr Vucinic about clearing problems?'

[329] Exhibit 15.3 page 22 and exhibit 15.1.1 [13.0(iv)] and [13.1.2].

[331] Exhibit 15.1.1 [13.0(iv)] and [13.1.2].

[338] See the heading 'Subsequent events affecting the areas able to be used' and 'Basis of valuation'.

[340] Exhibit 15.1.3 page 8 and exhibit 15.1.2 [3.2.4].

[344] Exhibit 10.218 page 3321, exhibit 10.228 page 3484.

[347] Exhibit 15.1.1 pages 35 36 [14.2].

[354] Issue 40 was 'what is the loss in value attributable to the Letter and/or the TEC?'

[356] Exhibit 15.1.1 pages 35 36. Mr Hughes rounded this figure to $1,800,000.

[358] See under the heading 'Effect of the Letter'.

[359] Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 [42].

[360] Issue 8 is expressed in a way that does not entirely reflect Mr Ardizzone's case. Accordingly, I have treated the real issue as being 'what is the proper characterisation of cl 9.1(a)(1)?'

[363] First and Second Defendants' Submissions in Response to the Plaintiff's Submissions filed 6 June 2018 [13] [14] (Valentino Opening Submissions) and Valentino Submissions [102], [107] [114].

[366] ts 1389. See also ts 110, 11 June 2018.

[367] See, for example, Valentino Submissions [103] and ts 1259 (cf Valentino Submissions [88] and [100] and ts 1316).

[369] Plaintiff's Outline of Submissions for Trial filed 28 May 2018 [42].

[370] See, in the General Conditions, cl 16.

[371] See in particular ts 1351 1352. See also the transcript of the hearing the day before the trial commenced at ts 104.

[374] Unless the purchaser became entitled to possession, or was given possession, prior to that time. See cl 8.1 of the General Conditions.

[378] See L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2; [1974] AC 235, 250 251, cited in Mealey v Mountains Development Group Pty Ltd [2003] NSWSC 830Mealey v Mountains Development Group Pty Ltd [2003] NSWSC 830 [7].

[379] General Conditions cl 9.1(a)(6) and (f).

[380] General Conditions cl 9.1(a)(5).

[381] See Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 [49] [56].

[382] As will be seen, I find that the clause was breached - see under the heading 'Did Valentino breach cl 9.1(a)(1)?'

[383] See under the heading 'Effect of the Letter'. See also ts 1386 1388.

[384] This was effectively conceded by Mr Coyle at ts 1388.

[385] These included pars 8.1, 8.3, 8.4, 8.5, 8.6(a)(i), 8.6(f), 8.6(g)(ii) and (iii) (and par 8.6(g)(i) merely repeated the pleading elsewhere) and par 8.9. See ts 226 228, 240, 1255, 1262 1263, 1270 and the final list of issues which struck out various issues raised in this pleading.

[386] Mr Coyle conceded at ts 1254 1255 that par 8.6(a)(ii), (iii) and (iv) each raised the same point (Issue 1 in the counterclaim) and par 8.6(j) subsumed par 8.6(a)(v).

[388] See under the heading 'Effect of the Letter' and 'Did the Letter communicate a Government Requirement?'

[389] The allegation was pleaded in par 9.1(a) of Valentino's Defence, which was based on pars 4.2, 4.3 and 8.9. Paragraph 4.2 was Issue 8 (construction of cl 9.1(a)(1)). Both of pars 4.3 and 8.9 were withdrawn - ts 1270.

[390] See under the heading 'What is the proper characterisation of cl 9.1(a)(1)?' and the heading 'Effect of the Letter'.

[392] See under the heading 'What would have happened if Mr Ardizzone had been told about the Letter?'

[393] This is discussed under the heading 'Assessment of loss', to be read with the section headed 'Valuation of the Property'.

[394] Valentino's Defence [6] denied the alleged implicit representations and addressed this issue in their Submissions [61] [63], [160] [164], [167]. The Agent parties expressly acknowledged that the Contract was part of the case against them (ts 1228.4) and dealt with it at ts 1228 1229 and ts 1395. See also the Agent Submissions [75].

[397] See the Statement of Claim [7] [10].

[398] Agent Submissions [27], [31] and ts 1203 1204.

[399] Valentino Submissions [61] [63].

[400] ts 1205 1207. Mr Coyle said he agreed with Mr Hancy's submissions on Issue 1 at ts 1252. See also ts 1265.

[401] Ardizzone Submissions [51] [54].

[402] See Ardizzone Submissions [56] and [169] (and see also [163] [164], [170], [178]) and ts 1331 (and also ts 1356 and 1396).

[403] Under the heading 'Section 30 claims', I discuss the distinction drawn by the Statement of Claim between the Valentino parties on the one hand and the Agent parties on the other.

[405] Under the heading 'Section 30 claims', I discuss the distinction drawn by the Statement of Claim between the Valentino parties on the one hand and the Agent parties on the other.

[406] See, for example, Plaintiff's Outline of Submissions for Trial filed 28 May 2018 [75] and Valentino Submissions [151] [155].

[407] Shone v Davies [2012] WASCA 83 [110] [112].

[411] ts 553, 556. Two of the three apartments that were built were sold.

[413] Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553 [35].

[415] Caffey v LeattHayter [No 3] [2013] WASC 348 [228] [240].

[416] Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 [37], [40], Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 [26] [27].

[418] See Valentino Submissions [136] and Agent Submissions [57].

[419] Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 [14].

[421] Miller [14] [22]. Miller discussed the predecessor to s 18 of the ACL.

[422] Ardizzone Submissions [163] (which incorporated the submissions in relation to Issue 1) - [171], [178] [179].

[424] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165.

[425] See under the heading 'Did the misleading conduct cause loss?'

[428] This was not disputed by Mr Hancy - see ts 1232.

[429] As noted earlier, by 'unusual', I mean an impediment that would not routinely apply, such as the need to get development approvals in accordance with state and local government requirements.

[430] This is Issue 11 and was dealt with under the heading 'The ability to clear the land'.

[431] Although each case turns on its own facts, in Pryor v Given [1980] FCA 68; (1980) 30 ALR 189, the Full Court of the Federal Court found that it was misleading to convey the impression that a house could be built on each of the blocks of land when houses could not be built without the special approval of the relevant authority and by satisfying onerous conditions.

[432] See the discussion under the heading 'Did Mr Ardizzone cause or contribute to any loss?'

[433] See under the heading 'The Letter is not disclosed'.

[434] See under the heading 'The Letter is not disclosed'.

[435] Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd [2011] WASCA 76; (2011) 248 FLR 193 [227].

[436] Agent Submissions [76] and ts 1234 1235 and 1306.

[439] Valentino Submissions [134] [135].

[440] Valentino Submissions [149] [173].

[441] See, in particular, the Valentino Submissions [51] [60], [134] [136], [159] [173].

[442] Valentino's Defence [6] denied the alleged implicit representations and addressed this issue in their Submissions [61] [63], [160] [164], [167].

[443] Under the heading 'The Letter is not disclosed'.

[444] CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd [2004] VSCA 232; [2005] ATPR 42042 [34] in which Nettle JA (Batt & Vincent JJA agreeing) said it was not necessary that silence be intentional in order to constitute misleading conduct. This was cited with approval by Murphy JA in Owston [228] (McLure P considered that deliberateness will need to be proved in some cases, but not where the circumstances were such as to give rise to an implied representation that an undisclosed fact did not exist. In this way, the satisfaction of the reasonable expectation test can result in the defendant doing 'an act' - [65] [66], [89]. Pullin JA found it unnecessary to examine this issue - [173]). See also Lockhart C, The Law of Misleading or Deceptive Conduct (5th ed, 2019) [5.2] [5.3], [5.27].

[447] Italform Pty Ltd v Sangain Pty Ltd [2009] NSWCA 427 [42]. See also Campbell [102], [143].

[448] Smith v Noss [2006] NSWCA 37 [25] [26]. See also Townsend v Roussety & Co (WA) Pty Ltd [2007] WASCA 40; (2007) 33 WAR 321 [103] [105].

[450] See, for example, ts 266 227. Ultimately, the Valentino parties did not press pars 4.3, 8.1, 8.3, 8.4, 8.5, 8.6(a)(i), 8.6(f), 8.6(g)(ii) and (iii) (and par 8.6(g)(i) merely repeated the pleading elsewhere) and par 8.9. See ts 226 228, 240, 1255, 1262 1263, 1270 and the final list of issues which struck out various issues raised in this pleading.

[452] ts 668 669, 1202 1203, 1301 1302.

[453] See under the heading 'What was the alleged misleading conduct?'

[454] Ardizzone Submissions [174] (see also [163] [171] and ts 1396).