e. That the rural outlook from Green Loaning has been destroyed and the character of the land ruined.
19 The cross claim then alleged that because of the 15 December 2004 representations and the 22 May 2005 representations by letter dated 23 August 2005, the cross claimants rescinded the contract for sale by reason of the 15 December 2004 representations and the 22 May 2005 representations.
20 The original pleading alleged that the representations were fraudulent, but this allegation was abandoned prior to the hearing.
21 Having set out the details of the dispute I have to resolve, I must return to the primary facts.
22 It is common ground that the meeting referred to in the cross-claim was held at noon on 15 December 2004 in a room of the Law Institute of Victoria's building in Melbourne. There were present David Arnot, John Arnot, Angus Campbell-Jones and Bruce Hill-Douglas.
23 According to Mr Hill-Douglas, the parties sat around a table, with Angus Campbell-Jones to his left, John Arnot to the left of opposite and David Arnot to his right. The same photographs which had been sent to him previously by Mr Campbell-Jones were produced together with the Arnots' plastic bound ringed type A4 size file which contained photographs of their houses, house plans and perspectives. Mr Hill-Douglas had his own file which included some correspondence and some plans of the land.
24 Early in the meeting, Mr Hill-Douglas claims that he said words to the effect:
" My family has owned the land since 1948 and I have a very strong attachment to it and am mindful of its being probably the last example of unspoilt local rural character, thus I am concerned to protect this, the amenity of the house, its environs and the locality and have no wish to sell the land for subdivision into two side by side lots, which I could have done myself if I had wanted to. I note that Angus Campbell-Jones has spoken glowingly of you and believe that we have the same concerns, as well as concerns for both the standard of the houses which you intend to build and the quality of their grounds. You know that I do not want my house to be overlooked nor its outlook to be built out so the house to the east of Green Loaning must be of single storey and set back clear of Green Loaming as in the plan Angus Campbell-Jones sent to me."
25 He says that during the course of the meeting, John and David Arnot were passive and agreeable and did not have a great deal to say. He claims that they said nothing to indicate that they disagreed with what he had said and he observed them nod their heads in apparent agreement.
26 He says that he was aware that the Arnots had sold their properties for about $6m and, as he did not want to sell the land for the construction of side by side houses, he entered into discussion with one or other of them about buying the dwelling, Green Loaning, itself. He says that he had earlier been told by Angus Campbell-Jones that the reason the Arnots had sold their houses was the subdivision and building out of what had formerly been a rural outlook.
27 He claims he said:
"I understand that you have lost your rural outlook and that this is why you sold your houses. This has happened to us twice in Melbourne with our privacy being lost by being overlooked so I sympathise. In the case of Green Loaning, I can stand on the front porch and look around and the only difference from 1948 is that trees have grown, which, in the case of the Gib, has resulted in its losing its identifying outline. I know of no reason why this will change."
28 He says that the response from one of the Arnots was:
"That is very reassuring for us for we do not want to have to move again for this reason".
29 He says that that statement and the agreeable demeanour of the Arnots during the course of his statement as to his wishes, led him to believe that they were as concerned as he was to preserve the existing environment and rural Burradoo character of the land they might purchase as well as its flora and fauna.
30 He says that the parties then also discussed the possibility of sale of the land at the rear of the house because both the Arnot brothers appeared more interested in each building a new house rather than for one to purchase the existing dwelling. Mr Hill-Douglas then says he said words to the effect: "I might be prepared to consider selling this land, for, to me, this could also avoid the building of the two houses side by side."
31 Mr Hill-Douglas had only booked the conference room for an hour and, when this time had expired he claims to have said:
"Well, it seems to me that we are all in agreement on those matters which are important to me and I believe that the price is reasonable, but I am not in any hurry to do anything. Why don't you have a look at the house and think about the land at the back and let me know what you want to do. As I have indicated, based upon what you have told me, I would be prepared to sell the whole property to you and then you would have one house ready for immediate occupation. Anyway, let me know."
32 The parties then all went for lunch to Campari Bistro in nearby Hardware Lane and thereafter dispersed.
33 Mr Hill-Douglas says that he relied upon the matters discussed at the meeting in making his decision to sell 35 Links Road to them.
34 Angus Campbell-Jones filed an affidavit giving his account of the Melbourne meeting. He says that he remembers Mr Hill-Douglas speaking of how the land had been in his family for a long period and that he wished to preserve the amenity of the area. He recalls that one of the Arnot brothers said that each of the brothers intended to build a house on the eastern block and that David Arnot said that his house would be two storey with an attached granny flat for his mother and father "along the lines of Patchway". He produced photographs of Patchway.
35 "Patchway" was a well known, almost historic, building in the Bowral area.
36 Mr Campbell-Jones then remembers that John Arnot said that he proposed to build a single level home on the western side of the eastern block and produced a photograph to illustrate its style.
37 He also remembers John Arnot saying:
"I plan to set my house back so that it is further away from Links Road than the living room of Green Loaning so we can both have some privacy. David's house will be stepped back again to ensure that the character of the area is maintained. I'd like you to think about moving the western boundary of the land closer to the existing house by way of a boundary adjustment to give a greater street frontage to the eastern block and therefore give David and I more flexibility within the building site."
38 When this case was being prepared for hearing by the plaintiffs' solicitors, they asked Mr Campbell-Jones for a statement which he provided by letter of 12 October 2005. This letter set out an abbreviated version of the meeting.
39 During cross-examination, Mr Campbell-Jones was asked (T83) about why there was no mention of the conversation which I have set out in [37] above in his letter. He admitted that he had made no notes of the meeting. He also admitted that at the time of the Melbourne meeting, neither of the Arnots had inspected Green Loaning.
40 Mr Campbell-Jones did not come out of this fiery piece of cross-examination very well and, even though Mr David Arnot said in cross-examination that he agreed with Mr Campbell-Jones' affidavit version of the meeting, I am not satisfied that the words I have set out in [37] were said. It is, however, common ground that Mr Hill-Douglas mentioned his family connection with the land.
41 Turning to the plaintiffs' evidence, both male plaintiffs swore that they were conducting a landscape gardening business in the Bowral/Burradoo area and became aware that there was vacant land in Links Road, Burradoo. They made enquiries and ascertained that it was owned by the defendants.
42 David Arnot says that the meeting lasted approximately one hour and was quite informal. Both he and his brother said to Mr Hill-Douglas words to the effect, "We wish to buy land for the purposes of building our new homes as we expect that the option to purchase our own land will be exercised. We are not developers nor do we propose to further subdivide the land and sell it, other than to create two blocks identical in size for each of us."
43 Later in the meeting, David Arnot says that he said to Mr Hill-Douglas words to the effect, "Angus suggested we show you the type of house which each of us proposes to build. We have brought photographs of our own houses and also photographs of other houses in Burradoo which we are interested in. We have not made any final decision except that the house which Kellie and I propose to build would be a 2-storey house which would incorporate a granny flat for my parents."
44 In supplementary oral evidence, David Arnot said that he had with him a folder containing a number of photographs of houses of various styles with which he would be comfortable and that Mr Hill-Douglas appeared to peruse these with interest.
45 David Arnot says that his brother, John, then said, "The house which Anneliese and I propose building is generally in the style of the house in the brochure of Claron Projects Pty Limited", and then showed Mr Hill-Douglas the brochure.
46 David Arnot says that during the course of the meeting, there was never any discussion about the exact nature of the house proposed and, at that point in time, no final decision had been made by his wife and himself as to the type of house they wanted to build. At no time was there any discussion about the size, location of house or any other condition attaching to the building of a house on the land. Had conditions been insisted upon which now the defendants insist upon, they say they would never have considered purchasing the land.
47 David Arnot says that at no time during the Melbourne meeting was any agreement reached regarding the purchase of the land, nor did Mr Hill-Douglas say that he would sell the land to the Arnots, nor was there any mention of price.
48 John Arnot gave very similar evidence.
49 The Arnots say that, apart from a brief meeting with Mr Hill-Douglas on 18 February 2005, all communications with him were through Mr Campbell-Jones or through solicitors.
50 On 18 February 2005, the Arnots were working on a job when they received an unexpected telephone call from Mr Campbell-Jones that Mr Hill-Douglas was in Bowral and would like to see them. The Arnots went to a coffee shop in Bowral where there was a 15 minute meeting, but no discussion about the land. I assume that the coffee shop was "Palate Pleasure".
51 The Arnots said that they understood that Mr Hill-Douglas was in Bowral to see a valuer about the price he should be asking for the land. Mr Hill-Douglas denied this and there is insufficient material for me to draw any firm conclusion.
52 On the morning of 28 February 2005, John Arnot received a telephone call from Mr Campbell-Jones to the effect that Mr Hill-Douglas was prepared to sell the Arnots the land for $1,500,000 which he considered to be reasonable.
53 The parties agreed on the price and draft contracts then commenced flowing between the solicitors. There was a delay because the Arnots wanted two interdependent contracts, one in the name of each set of husband and wife. Contracts were finally exchanged on 31 May 2005.
54 I believe that I have now recounted all the necessary evidence as to the major facts save for: (1) the defendants' version of what happened on 18 February 2005; (2) what occurred on 22 May 2005; and (3) the land clearing episode.
55 Mr Hill-Douglas says that he was visiting Bowral on 18 February 2005 and that Mr Campbell-Jones had arranged a meeting with the Arnots. He was peeved because the Arnots ran late for the meeting and, while they were waiting, he and Mr Campbell-Jones had coffee at a table outside the "Palate Pleasure".
56 When the Arnots arrived, they indicated that they would like to buy the land as two separate lots. Mr Hill-Douglas said he had no wish to do this as it would require him to spend more money on surveyors, but told the Arnots that they could make their own arrangements.
57 The Arnots deny this alleged conversation and say that as they had not yet even been offered the land, it is unreal to speak in terms of "fine tuning".
58 Mr Hill-Douglas says that he regarded the discussion as covering matters of fine tuning and that he felt it important that the Arnots had not in any way contradicted the matters of personal concern to him which had been discussed in Melbourne.
59 On 22 May 2005, Mr Hill-Douglas says that Mr Campbell-Jones called at the defendants' Melbourne home in order to have them sign the final version of the contracts. He says that the agent brought with him a Master Plan which showed house sitings, tree retentions and landscaping including new planting. He saw that the Master Plan was in accordance with previous discussions and signed the contracts and authorised their exchange.
60 The Arnots say that there never was any Master Plan, but they assume that what is being referred to is the then current Landscape Plan. They say that they did not provide this to the defendants, though they had given a copy to the agent.
61 The Arnots further say that as the form of contract had only been agreed by the respective solicitors on 20 May 2005, any form of contract that Mr Campbell-Jones took to Melbourne did not come from them. I assume the contract was the final version and provided by the defendants' solicitors.
62 It is quite clear that the form of contract and plan which Mr Hill-Douglas saw in May 2005 were provided to him by Mr Campbell-Jones, then a representative of Carpenters Real Estate.
63 The defendants' pleadings endeavoured to say that Mr Campbell-Jones was the plaintiffs' agent to make representations. This would be very difficult to establish. Although it may be said that the plaintiffs retained him for some limited purposes, he was principally the defendants' agent.
64 In cross-examination a different tack was taken. Mr Fox, for the defendants, put to David Arnot that there was no reason for giving Mr Campbell-Jones the May '05 plan except for it to be shown to Mr Hill-Douglas. There is a lot of sense in that suggestion, though David Arnot denied it. However, it does not amount to sufficient evidence for me to find that the plaintiffs authorised Mr Campbell-Jones to make representations with respect to the plan.
65 The particulars to the cross claim which I have set out earlier identify the plans of which the cross claimants are speaking. The plan on page 11 of his exhibit is a small plan on which someone has sketched two oblongs each marked "house" on lots #1 and #2. (Another copy of this plan was marked MI 15: MI 15 also has a sketch of the defendants' house).
66 The plan which Mr Hill-Douglas says he saw in May 2005, Exhibit 101 to his principal affidavit is entitled "Master Plan" and is drawing 0504A/1 of Michael Bligh & Associates Pty Ltd.
67 There is no doubt that the plan was changed after that date and that a later plan called for the removal of eucalypts which the Arnots say they were advised to do by their architect to provide more suitable plantings.
68 I now come to the problem caused by clearing the land. The allegation is that, after contracts were exchanged, sometime in early June 2005, the Arnots entered the land and removed 67 trees without the defendants' permission.
69 The Arnots say that they obtained permission from Mr Campbell-Jones. David Arnot said at T35, "I specifically asked Angus Campbell-Jones could we remove the trees and he said yes. To quote his exact words, 'You have paid your deposit, exchanged contracts. The block is virtually yours. Go ahead.' "
70 Mr Fox put to John Arnot that Mr Campbell-Jones had said that the Arnots could remove trees because Mr Hill-Douglas was so impressed with the plan of the property that if the Arnots stuck to the plan he would be happy. John Arnot denied that he had been told anything like "if you stuck to the plan". However, he said that the permission was given to his brother over the telephone and he did not hear the exact words.
71 I thought it was significant: (1) that the question was put at all; and (2) that the question was not put to Mr David Arnot.
72 Mr Campbell-Jones cannot remember giving any such permission. He gave evidence that he had had a conversation with Mr Hill-Douglas earlier in 2005 in which the latter wished him to ask the Arnots to attend to some clearing of the land required by the Council. He believes that he then may have said that the Arnots could remove dead trees, blackberries and the like.
73 In any event, the Arnots say that it is nonsense to say that their activities ruined the outlook. They say that before their action the land was overgrown with weeds and blackberries.
74 The proceedings came on for hearing before me on 13 and 14 February 2006. Mr BA Coles QC and Mr N Bilinsky appeared for the plaintiffs and Mr P Fox and Ms L Young appeared for the defendants.
75 The issues for me to decide were those raised by the cross claim as, if those issues were not decided in favour of the defendants, the plaintiffs were clearly entitled to the orders which they seek.
76 The issues are best considered under the following headings: