Century Legend Pty Ltd v Ripani

Federal Court of Australia (Full Court)|2022-11-30|Before: McEvoy JJ

Counsel for the Appellant: Ms G Costello QC with Ms E Levine

Solicitor for the Appellant: Patrick & Associates

Counsel for the Respondents: Mr S Stuckey QC with Mr B Barr

order made by: MARKOVIC, MCELWAINE AND MCEVOY JJ DATE OF ORDER: 30 November 2022

Leave is granted to the appellant to amend the notice of appeal in the form of the document provided to the Court on 8 August 2022.
The appeal is allowed.
The orders made in proceeding VID 266 of 2020 on 18 March and 13 April 2022 are set aside.
Pursuant to ss 28(1)(f) and 30 of the Federal Court of Australia Act 1976 (Cth) there be a new trial of the proceeding: (a) limited to the issue of whether the respondents continued to rely on the misleading or deceptive conduct of the appellant within the period April 2017 to the date the contract of sale became unconditional in August 2017, and if resolved in favour of the respondents, the relief that should be granted; and (b) on the basis that: (i) the parties are bound by each other finding of fact and determination made by the primary judge, save for the findings and determinations relevant to (a); (ii) the parties may adduce such evidence and may make such submissions in accordance with such case management orders as the judge who hears the new trial thinks fit; and (iii) all questions of costs of the trial before the primary judge are to be determined by the judge who hears the new trial.
The orders made by Beach J on 28 March 2022 are dissolved.
Within 7 days the parties are to provide written submissions of no more than 5 pages on the question of the costs of the appeal.
Subject to any further order of the Court, the costs of the appeal will be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC AND MCEVOY JJ: 1 We have had the advantage of reading the reasons in draft prepared by McElwaine J. We are grateful to his Honour for the clear outline of the relevant facts, and his comprehensive consideration of the issues raised by the appeal. We agree with the conclusion his Honour has reached that the appellant should have leave to amend the appeal grounds, that the primary judge erred in the conclusion expressed at paragraph [215] of the primary judgment that the evidence of Ms Kate Hart should be rejected as reconstructed and unreliable, and that the primary judge's conclusion in this respect cannot stand. We also agree with McElwaine J that as this conclusion was a fundamental part of the liability finding it follows that ground one of the appeal must succeed, the appeal must be allowed, and the orders made by the primary judge on 18 March and 13 April 2022 must be set aside. 2 We also agree with his Honour that appeal grounds two, three and four do not succeed. 3 Notwithstanding the complexities which will undoubtedly attend a new trial of the proceeding limited to the issue upon which ground one succeeds, we agree with McElwaine J that there is no practicable alternative and, accordingly, with the orders his Honour would make for the conduct of that trial. We agree also with the orders his Honour would make dissolving the orders made by Beach J on 28 March 2022, and in relation to the costs of the appeal. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Markovic and McEvoy.

MCELWAINE J: 4 This case illustrates the inherent risk for a vendor in the marketing of an "off-the-plan" apartment development where the ability to construct a building does not ultimately match the pre-development promotional material, despite the inclusion of disclaimer and exclusion clauses in the formal contract of sale. 5 On 1 April 2017, Mr Walter and Mrs Nina Ripani (the respondents) signed a conditional contract to purchase apartment 1401 at a price of $9.58 million in an apartment complex to be developed at 20-22 Queens Road, Melbourne to be known as the Victoriana (the contract and the development respectively). Century Legend Pty Ltd (Century or the appellant) was the developer and is the vendor. It traded as the JD Group. The contract became unconditional upon provision of a bank guarantee and approval of a floor plan on 29 August 2017. Completion of the development was achieved in August 2021. The respondents did not complete the contracted purchase for the reason that on 22 April 2020 they commenced proceedings in this Court and sought relief to the effect that the contract be declared void ab initio pursuant to s 243 of the Australian Consumer Law being schedule 2 to the Competition and Consumer Act 2010 (the ACL) in consequence of misleading and deceptive conduct by the vendor and its agents contrary to s 18 of the ACL. They also sought rescission of the contract in equity together with consequential damages. 6 The primary judge conducted a trial of the proceeding on various dates between January and April 2021. For reasons published on 18 March 2022, his Honour upheld the claim, ordered that the contract "be rescinded", awarded costs in favour of the respondents and made consequential orders for the assessment of damages: Ripani v Century Legend Pty Ltd [2022] FCA 242 (PJ). Subsequently, on 13 April 2022, his Honour awarded damages to the respondents in the agreed amount of $118,500. 7 On 24 March 2022, Century filed a notice of appeal from the whole of the orders of the primary judge and on 28 March 2022, Beach J made orders staying certain orders pending the hearing and determination of the appeal. Thereafter, the appellant on 11 July 2022 sought leave to rely upon amended grounds of appeal together with leave to adduce new evidence. At the hearing of the appeal, we refused leave to adduce new evidence (and consequentially refused leave to rely on ground five of the proposed amended appeal grounds) for the brief reason that we were not satisfied that the evidence could not have been adduced at the trial; reserved for later publication our more detailed reasons why; heard argument upon the extant and proposed appeal grounds and reserved our decision on the application to amend the appeal grounds. 8 For the detailed reasons that follow, I would grant leave to amend the appeal grounds, uphold ground one and order that there be a new trial limited to the issue upon which ground one succeeds on the basis that the parties remain bound by each other finding of fact and determination of the primary judge.

The conduct complained of 9 In 2016, Century prepared promotional materials to be used in marketing the development, including scale models and a hard-bound brochure containing various images, known as "renders", of the anticipated appearance of the development once constructed. It also engaged a firm of real estate agents, CBRE, to assist in the marketing of the development and to establish a display suite located at the Queens Road site. Mr Kevin Tran was employed by CBRE. 10 Central to the dispute between the parties is the following render, described as the "hero render" in the primary judgment: (the render) 11 What is obvious is that the render depicts the proposed western aspect of apartment 1401, and specifically it is to be noticed that it depicts a large free span opening between an external terrace and the internal living spaces with no variation in height between the outdoor and indoor floor levels. The render was used to market both apartment 1401 specifically and the development more generally and was used prominently in promotional and marketing material. It bears the small notation: Artist Impression. 12 The render is not scaled or dimensioned. It was not provided with a locational map from which one might be able to accurately assess the point within the proposed development from which it was constructed. No detail was provided as to the camera lens or the angle of view. No representation was made to the respondents as to the width of the opening depicted in the render when it was first shown to them. The respondents gave evidence, which the primary judge accepted, that they assumed the width to be in the order of 12m, which was the length subsequently discussed at a meeting with a firm of quantity surveyors. Importantly however, the respondents did not plead a claim to the effect that any particular representation was made about the opening width. They did however plead that when they discussed the render with Mr Tran during a visit to a display suite, he told them that the render was of apartment 1401 and they could expect that the apartment would conform to it when built. 13 In their amended statement of claim, the respondents contended that the render conveyed representations that were misleading or deceptive within the meaning of s 18 of the ACL, and sought orders in the nature of rescission of the contract, either under ss 237 and 243(a) of the ACL or, alternatively, in equity. Specifically, the claim pleaded that the render and the statement of Mr Tran conveyed the following representations about the proposed form of apartment 1401: (a) a large open plan space and a large rooftop terrace both at the same level with a raised concrete and glass swimming pool and a retracted glass three stack window panel system with the resultant defect that the outside and the inside formed a seamless single space (flow-through design); (c) that the inside and outside of the apartment would flow seamlessly into one another; (d) when constructed, the apartment would accord with the render and in particular would include the flow-through design; (e) the flow-through design was in accordance with architectural designs prepared by the commissioned architects; (f) the building design shown in the render accorded with the design for construction of the building prepared by a reasonably skilled and competent architect; and (g) the building design shown in the render was achievable given existing building methods. 14 Ultimately, it was not in dispute before the primary judge that for technical reasons related to wind loadings and compliance with Australian standards, the maximum width of the opening that could be achieved for apartment 1401 was approximately 3.4m. Nor was it in dispute that Century knew that it was not possible to construct apartment 1401 with a large free span opening as depicted in the render: it had been informed of that fact by its appointed architect in October 2016 (then Carr Design) and, indeed, was told that the render was "misleading" to that extent. The subsequently appointed firm of architects, Rothelowman, repeated that warning in June 2017. A Ms Kate Hart, who was employed by Rothelowman, had the primary dealings with the respondents in the development of their bespoke requirements for the apartment. She and the respondents also dealt with Mr Jierong (Peter) Hu, an employee of Century.

How did the primary judge proceed? 15 The primary judge considered that the respondents' claim for relief turned upon three questions as follows (at PJ [9]-[10]): …First, did the render convey the representations as alleged by them, essentially that there would be a free span opening and seamless transition between the internal living areas of the apartment and the terrace? Second, did the Ripanis rely upon any representations conveyed by the render at the time they entered into the contract to purchase the apartment? Third, would the Ripanis have entered into the contract to purchase apartment 14.01 had they not believed at the time that the apartment would be constructed in conformity with the image depicted in the render? Leaving aside the effect of disclaimers and certain contractual exclusion clauses, to which I shall refer below, if the answers to each of the first and second questions is yes, and the answer to the third question is no, in my view the Ripanis are entitled to an order in the nature of rescission of the contract of sale pursuant to ss 237 and 243(a) of the ACL, or, alternatively, to an order in equity that the contract of sale be rescinded. 16 On the first question, his Honour rejected Century's defence that the render did not convey any meaningful representation and found that it in substance conveyed the principal representation alleged by the respondents. He further found that there was no reasonable basis for making the representations, given that Century knew it was impossible to construct apartment 1401 in a way that would resemble the render: PJ [12]. To that extent, although unnecessary to establish the statutory claim, his Honour found that Century deliberately engaged in misleading conduct. 17 Although his Honour accepted that the render did not contain any notation specifying the width or height of the opening between the living areas and the terrace, he found that "does not mean the render was inapt at, and much less incapable of, conveying the representations about which the Ripanis complain", nor was it "by no means meaningless or incapable of being reasonably relied upon by prospective purchasers because it did not specify any dimensions of the free span opening": PJ [30]. 18 His Honour also found that a representation was made to the respondents by Mr Tran who told them, "in effect, that apartment 14.01 would be constructed as depicted in the render, with an expansive opening onto the terrace from the internal living areas" which he referred to as an "artist's impression" but did not otherwise qualify that the impression conveyed was misleading and deceptive: PJ [32]. Mr Tran's statements therefore "effectively reiterated, or corroborated, the representations conveyed by the render": PJ [37]. 19 The primary judge emphasised the "circumstances" in which the render was shown to the respondents at PJ [39]: But the Ripanis did not see the render on a billboard and it was apartment 14.01 in particular which caught their attention, precisely because they were attracted to the seamless transition between the internal living areas and the outside terrace. The Ripanis saw the 'hero render' featured prominently on the wall of the display suite at the Victoriana and were told, in effect, that it depicted what they could expect apartment 14.01 to be like in relation to the free span opening between the living areas and the terrace, though it was an 'artist's impression'. It is in this context that the render was shown to the Ripanis and a copy of the marketing materials given to them. 20 On the question of reliance, which is now central to this appeal, his Honour rejected evidence from Ms Kate Hart, who at the time was employed by Rothelowman as an interior designer and senior associate, that on one or more occasions between May and June 2017, she told the respondents that an opening as depicted in the render was not achievable and that the likely width would be between 3m and 4m. 21 His Honour rejected the specific defence that the contract contained disclaimer and exclusion clauses that, in the particular circumstances, operated to preclude a finding of reliance upon the misleading and deceptive conduct or to erase its effect. He also found that despite the contract being subject to satisfactory approval of a floor plan, which approval was forthcoming, and attachment of the approved floor plan to the contract, from which it was apparent that the opening depicted in the render would not be constructed, the respondents were entitled to and did continue to rely upon the representation conveyed by the render. These findings are important to the appeal grounds and for that reason, I extend my introductory analysis as follows. 22 The contract was signed by the respondents on 1 April 2017, and was subject to satisfaction of a number of special conditions including a handwritten condition numbered 43 which read: Subject to satisfactory of floor plan within 21 days (sic) (special condition 43) 23 There was also attached to the contract a floor plan of apartment 1401 prepared by Rothelowman marked "draft" dated 16 June 2017 and with the title: "Premium Apartment 1401 OPT E" as follows: 24 Although somewhat difficult to read at the scale reproduced in this judgment (on the hearing of the appeal we were provided with A3 versions of all relevant plans), it is clear from a careful perusal of that plan that the glass doors proposed on the western side of the apartment to separate the internal and external living areas are not shown as providing for an unobstructed flow-through design. Rather, a stackable door system is provided with fixed vertical members, known as mullions, which are spaced at intervals between 1m at the narrowest point of opening and extending to approximately 3.6m at the widest point, opposite the fireplace. 25 The primary judge found that the contract did not become binding upon the parties until 29 August 2017, which is the date that the respondents provided a bank guarantee in lieu of the required deposit in the amount of $944,000, which guarantee Century accepted. Further, his Honour found that special condition 43 was not satisfied within the 21 day stipulated period. Rather, between 6 April and 9 June 2017, there were several meetings between the respondents and representatives of Century and Rothelowman. Various iterations of a floor plan with a proposed interior fit out were presented, discussed and developed before special condition 43 was met. The primary judge did not make a precise finding as to when the requested satisfaction was conveyed or by what mechanism: ultimately he inferred that when the respondents provided the bank guarantee, they must be taken to have approved of the Option E floor plan. However, it is to be noted that there was in evidence before the primary judge an email of 20 July 2017, from the respondents' then solicitors to Mr Ripani which attached the email of 28 June 2017, and requested confirmation as to whether the respondents were satisfied with the Option E floor plan. There was no evidence of their response, if any. In any event, it was common ground at the trial that by providing the bank guarantee for the deposit, the respondents signified approval of the Option E floor plan. 26 Considerable time was spent at the trial on the issue whether the respondents, in consequence of that approval, must have then understood that the width of the flow-through design depicted in the render would not be constructed in accordance with the approved floor plan. Century sought to make out a case that the effect that any misleading representation conveyed by the render was expunged by the date that the contract became binding upon the parties or that the respondents did not rely upon the render in deciding to approve the floor plan and with it to proceed with the contract. The primary judge resolved this issue adversely to Century in that his Honour accepted the evidence of the respondents that their focus in approving the floor plan was upon the internal bespoke details of the apartment, that they did not understand the detail conveyed by the Option E plan and that they continued to believe in the truth of the representations conveyed by the render. 27 Century led evidence from Ms Hart as to several meetings and email exchanges with the respondents between April and June 2017. She gave evidence to the effect that she had informed the respondents that the width of the opening between the internal and external areas of the apartment, with the doors open as depicted in the render, could not be achieved. Specifically, she gave evidence that she told them that "we couldn't have just one large expansive opening" and that the maximum width that was achievable was in the order of 3m to 4m. This evidence was the subject of significant challenge in cross-examination. As acknowledged by the primary judge: "If Ms Hart's evidence were accepted, her statements to the Ripanis would have had the effect of curing the misleading representations conveyed by the render": PJ [139]. The respondents disputed that they had been informed of these facts by Ms Hart. Ultimately, the primary judge preferred their evidence and rejected the evidence of Ms Hart as a reconstruction as well as unreliable: PJ [215]. 28 Finally, the primary judge accepted the evidence of the respondents that if they had known the true position about the proposed flow-through design, they would not have entered into the contract. His Honour reasoned that this was, relevantly, detriment in that the respondents were induced to enter into the contract on the basis of a misleading render: PJ [227]. Further, the difference between the 3.4m opening as constructed and the opening depicted in the render was sufficiently material to found the exercise of the discretion to grant the following relief: 1. The contract of sale for the purchase by the Applicants of apartment 14.01 at 20-21 Queens Road, Melbourne, made on or about 29 August 2017, be rescinded. 2. By no later than 4:00pm on 25 March 2022, the Respondent return to the Applicants the bank guarantee provided on behalf of the Applicants by the Bank of Melbourne on 29 August 2017 in lieu of a deposit. 3. The Respondent pay damages and pre- judgment interest to the Applicants in an amount to be determined in accordance with paragraph 4 of these orders. 4. By no later than 4:00pm on 25 March 2022, the parties file: a. an agreed minute of the sums payable for damages and pre-judgment interest in accordance with these reasons for judgment; or b. failing agreement, the parties are to file separate minutes and submissions, limited to four pages, concerning their respective calculations of damages and pre-judgment interest payable in accordance with these reasons. 5. The Respondent pay the Applicants' costs of and incidental to the proceeding, to be agreed and in default of agreement assessed on a standard basis. 29 Subsequently, orders three and four were resolved on 13 April 2022 when the primary judge ordered as follows: 1. Further to paragraph 3 of the orders of Justice Anastassiou dated 18 March 2021, the Respondent pay damages and pre-judgment interest to the Applicants in the agreed amount of $118,500. 2. The Applicants pay the Respondent's costs of and incidental to the case management hearing on 6 April 2022. 30 A further issue agitated at the trial concerned a proposed height differentiation between the indoor and outdoor areas: a step down, not shown in the render. Eventually this issue evaporated when a representative of the builder, Mr De Mooy, gave evidence that a level surface had been constructed.

The appeal by century 31 As finally pressed, the grounds of appeal are: 1. The primary judge erred in rejecting the evidence of Kate Hart to the effect that she informed the Respondents (Ripanis) in around June 2017, prior to the contract of sale with respect to Apartment 1401 (Contract) being entered into, that the opening for Apartment 14.01 could not be constructed in accordance with what was depicted in the render at Annexure I to the reasons for judgment, in circumstances where the corroborating documentary evidence, including in particular the annotated Option C floor plan at Annexure VI to the reasons for judgment, and the Option E floor plan at Annexure VII to the reasons for judgment that the Ripanis were satisfied with, made it glaringly improbable that Ms Hart's evidence was a reconstruction (J [180] - J [221]). 2. The primary judge erred in finding that the exclusion clauses in the Contract were ineffective in negating any misleading or deceptive conduct or misrepresentation on the basis that the exclusion clauses were not sufficiently specific or explicit vis-à-vis the depiction of Apartment 1401 or, alternatively, on the basis that the exclusion clauses were "boilerplate" provisions (J [89]-[90]). 3. The primary judge erred in concluding that the Ripanis were entitled to statutory rescission pursuant to s 243(a) of the Australian Consumer Law in circumstances where: (a) it was not open on the evidence for the primary judge to be satisfied that the Ripanis had suffered economic loss with respect to Apartment 1401 (J [233]); (b) it was not open on the evidence for the primary judge to be satisfied that the Ripanis had suffered any other manifestation of other loss (J [226] - J [227]); (c) the primary judge failed to subject the expert valuation evidence of Mr Anthony Rohan to critical evaluation (J [234]); and (d) the primary judge erred by inferring that the value of Apartment 1401 was less than the Ripanis paid for it merely because Century Legend did not lead any contrary valuation evidence (J [235]) which was a wrong application of the rule in Jones v Dunkel which cannot be used to fill evidentiary gaps or convert conjecture into inference. (e) alternatively, the primary judge erred in the exercise of discretion to grant statutory rescission pursuant to ss 237 and 243(a) of the Australian Consumer Law because it was not practically just in the circumstances to order rescission and the remedy was disproportionate to any loss or detriment. 4. The primary judge erred the exercise of discretion by concluding that the Ripanis were entitled to equitable rescission because it was not practically just in the circumstances to order rescission and the remedy was disproportionate to any loss or detriment.

Leave to adduce further evidence and ground five 32 At the hearing before us, the appellant sought leave to file an alternative version of the proposed amended notice of appeal which contained a proposed ground five as follows: 5. The primary judge erred by finding that the marketing render was misrepresentative when any difference between the artist's impression and what was built was immaterial: J [32], J [98]. 33 This ground may be shortly addressed. As explained in submissions, properly understood it turns upon the separate application that was made to adduce new evidence on the appeal by reference to the appellant's interlocutory application of 11 July 2022 and the affidavit of Timothy Burgess affirmed that day. 34 Mr Burgess is a professional photographer. He was provided with a copy of the render and was engaged to attend the completed development for the purpose of taking photographs which, in his words, "attempt to best replicate that image using traditional photography, and further photographs that give some context to my efforts". He took several photographs on 11 July 2022 (which he erroneously records as 11 June 2022 at paragraph [7] of his affidavit), explaining his methodology: The photographs attached to this affidavit were taken between 1.30 to 2:50 pm on 11 June 2022, which was a bright sunny day with a low winter sun. It was very difficult to take photographs of rooms with windows in these conditions. The contrast is at its most extreme with significant glare. As a result, I could not match the light outside with the inside of the room and recreate the light conditions which are balanced in the render. I have therefore somewhat adjusted the light settings as between the outside and inside to obtain a more consistent lighting effect. This was to ensure that there is consistency of lighting across the whole of the image, and consistency between my images. 35 The attached images commence with the render followed by eight photographs which variously depict images of the completed apartment 1401 viewed internally and externally and with the doors on the western side fully open. Some of those images appear to be taken at a location reasonably approximate to that which is depicted in the render, although there are significant differences; in particular, due to the bespoke form of the internal fit out and a rearrangement of the form of the swimming pool. 36 Leave to adduce this evidence was opposed by senior counsel for the respondents. In argument before us, senior counsel for the appellant accepted that at least by 2 December 2020 (notably before commencement of the trial before the primary judge) the development was sufficiently progressed such that photographic evidence could then have been obtained to depict the actual form of the proposed door configuration on the western side and that it would have been open to the appellant to engage an expert to prepare a montage of the apartment as constructed and one with the door configuration as depicted in the render by way of direct comparison. Senior counsel accepted that "theoretically, that could have been done". It is also a matter of common experience, which senior counsel was unable to comment upon, that in development proposals montages are frequently prepared, with a degree of accuracy, in order to give a realistic impression of that which is proposed to be constructed. Accordingly, senior counsel accepted that steps could have been taken by the appellant to engage an appropriately qualified expert to produce evidence of this type for use at the trial. 37 For the respondents, it was submitted that leave should be refused as the case at trial was not run on the basis that the central representation conveyed by the render was true and the evidence was capable of being produced during the course of the trial (or at any time prior to the delivery of judgment upon an application to reopen). 38 The exchange that I have summarised explains why we refused leave to adduce the putative new evidence upon the hearing of the appeal, with the consequence that ground five fell away. Section 27 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) confers a discretion to receive further evidence upon an appeal and is not couched in the language of fresh evidence. However, ordinarily in order to obtain a favourable exercise of the discretion it must be demonstrated that the applicant was unaware of the evidence at the time of the trial and could not with reasonable diligence have obtained it and, further, that had the evidence been adduced at the trial it is unlikely that other evidence would have been adduced by the opposing party in order to meet it. It should also be reasonably clear that the evidence, if received, would likely affect the result. For these propositions see generally: Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236; [2007] FCAFC 134 at [5]-[7], Gyles, Graham and Tracey JJ. I accept that these are not immutable tests that guide the exercise of the discretion in every case, but what is clear is that they are important considerations in this case. 39 The new evidence sought to be adduced could, with reasonable diligence, have been obtained by engaging an appropriately qualified expert to prepare accurate montages for the purposes of the trial. No satisfactory explanation for the failure by the appellant to do so was offered. The fact that the development was still in the construction stage at the time of the trial does not answer why, with reference to the then form of the architectural drawings approved for construction, comparative montages could not have been prepared. Further, the evidence sought to be introduced from Mr Burgess is, on its face, contestable: he does not provide an analysis which locates the point at which each photograph was taken, nor as to the camera lens angle employed. Inevitably, had we resolved to receive this evidence, it would then have been necessary to adjourn the hearing of the appeal (perhaps for a lengthy period) in order to afford to the respondents a fair opportunity of examining the evidence and, if thought fit, to engage their own expert with the consequence that this Court most likely would have been required to resolve a disputed question of fact which ought to have been (and with reasonable diligence should have been) resolved by the primary judge. Finally, the appellant did not address the consistency of its application with the overarching purpose of civil practice and procedure as provided for at ss 37M and 37N of the FCA Act. 40 It is for these reasons that we refused the application to adduce further evidence and leave to rely on ground five. 41 I address the remaining appeal grounds seriatim.

Ground one: rejection of the evidence of Ms Hart 42 This ground invites this Court to overturn the rejection by the primary judge of the evidence of Ms Hart, which was in part based on his assessment of her demeanour and his acceptance of the evidence of the respondents as credible. At PJ [215]-[216] his Honour summarised his assessment and findings as follows: In relation to Ms Hart's demeanour as a witness, I found her to be vague and evasive in relation to the critical questions concerning the circumstances in which she claims to have orally informed the Ripanis of the inaccuracy of the render. That is not a criticism of Ms Hart in relation to her understandable uncertainty of recollection about particular meetings or discussions relative to others. Rather, it is her uncertainty about the impetus for the critical changes to the floor plans, which I have described at length, that is more significant in reaching the conclusion that Ms Hart's evidence was reconstructed and unreliable, notwithstanding her ostensible positon as a disinterested witness. The Ripanis, on the other hand, gave evidence that revealed a straightforward and plausible course of events. They were attracted to apartment 14.01 because of the appeal of the free span opening. They were told by Mr Tran that the render depicted apartment 14.01 and they had no reason to doubt that statement. They did not believe, or contend in this proceeding, that they expected the apartment to look identical to the render. They understood that there was a degree of interpretation in the render. But equally, they took from the render what it conveyed; specifically, a free span opening effectively the width of the internal living areas. 43 At issue is the evidence of Ms Hart that in June 2017, and perhaps earlier in May 2017, before the contract became unconditional by reason of the approval by the respondents of the Option E floor plan, she explained to the respondents that the doors on the western side of the apartment could not be constructed with an opening as wide as depicted in the render. The precise evidence that she gave, and the circumstances which led to it being adduced, were examined by the primary judge and summarised as follows in his reasons: 160 Century Legend submitted that Ms Hart's was (sic) evidence was, in effect, that during subsequent meetings in May and June 2017, she explained to the Ripanis the position of the doors on the western façade and told the Ripanis there would not be a single opening onto the terrace. In particular, Century Legend submitted that the Court should accept the following aspects of Ms Hart's evidence: (1) that during meetings with the Ripanis prior to them entering into the contract of sale, Ms Hart pointed to, and annotated, various floor plan to show the Ripanis where the openings would be between the internal living area and external terrace; (2) that in a meeting with the Ripanis on a date she could not recall in May 2017, she specifically told the Ripanis that it was not possible to have a single large opening along the western façade because of the wind loading; (3) that in that same meeting in May 2017, she also said there had to be a series of smaller openings, but there would be a large opening centred on the fireplace allowing for access to the external terrace; and (4) that in a meeting on 9 June 2017, she discussed the size of the openings between the interior and exterior with the Ripanis and mentioned, by reference to the glazing mullions, that the opening would be approximately 3 to 4 metres. Ms Hart says these matters are reflected in annotated versions of the Option B floor plan (see Annexure V) and Option C floor plan (see Annexure VI). 161 In substance, Ms Hart's evidence was that she explained to the Ripanis that it was "impossible" to have any wider opening than had been indicated by the floor plans and that the Ripanis were "disappointed" upon being informed of this. … 172 As I have said above, Century Legend's defence, as pleaded and opened, proceeded on the tacit assumption that there was no discussion of the opening in pre-contractual meetings such that it would have disabused the Ripanis of any misapprehension created by the render. It was not opened that Ms Hart told the Ripanis that what was depicted by the render could not be constructed. Rather, until Century Legend's defence developed and altered as a result of Ms Hart's evidence, not previously mentioned, the gravamen of Century Legend's defence was that it was discernible from the various iterations of the floor plans, discussed at meetings between the Ripanis and Ms Hart, that the free span opening depicted in the render would not be built. This original defence as to causation is still pressed, notwithstanding that if Ms Hart's evidence were accepted there would hardly be any need to decide whether scrutiny of the floor plans disabused the Ripanis of any misapprehension about what the render represents. … 174 Ms Hart's evidence is relevant to Century Legend's original defence but only tangentially. The discussions between Ms Hart and the Ripanis about the floor plan and fit out were relevant as occasions when it may be expected the Ripanis considered the floor plans, including the depiction of the internal living areas and the terrace. Thus, as opened, Ms Hart was to give, in effect, only contextual evidence relevant to the question of reliance by the Ripanis. However, as I have said, on the second day of Mrs Ripanis cross-examination, it was suggested to her, for the first time, that Ms Hart had explained by reference to two iterations of the floor plan (Option B and Option C, see Annexure V and Annexure VI, respectively) that the free span opening depicted in the render could not be constructed. Century Legend submits that Ms Hart thereby corrected any misunderstanding the Ripanis may have had concerning the expanse of the free span opening. 44 His Honour then proceeded to undertake an analysis of the evidence of Ms Hart, the contemporaneous circumstances and a number of objective criteria which led to the rejection of her evidence at PJ [180]-[221]. He did not find her to be a dishonest witness. His Honour did not simply make a finding that the evidence of Ms Hart was reconstructed and unreliable by reference to her demeanour. Rather, what is clear from the structure and the analysis at PJ [180]-[214], when read with the specific demeanour finding at PJ [215], is that the ultimate rejection of her evidence at PJ [221] is founded on three sequential steps. The first is inconsistency with identified objective circumstances. The second, the reconstruction, evasive and unreliability finding at PJ [215] which expressly turns on her uncertain evidence about the impetus for "the critical" alterations to the floor plans in iterations marked as Options A and B. And third, acceptance of the contrary evidence of the respondents. 45 The reconstruction and unreliability findings are not exclusively or substantially anchored by the demeanour exhibited by Ms Hart when giving evidence and in this regard I bear in mind the "important distinction between the credit and the demeanour of a witness. A court can determine that a witness lacks credit but may do so on a basis that wholly excludes the witness' demeanour": Prouten v Chapman [2021] NSWCA 207(Prouten) at [10], Meagher and Leeming JJA. 46 Thus, it is important to understand in this case that if the primary judge erred in his fact-finding in a way which affected his demeanour conclusion, or the reconstruction and unreliability findings were not materially informed by his Honour's assessment of the demeanour of Ms Hart, then the duty of this Court in the conduct of the review function pursuant to s 24 of the FCA Act is to make its own findings of fact and to reason accordingly. Although Brereton JA dissented in the result in Prouten, in part I regard his Honour's synthesis of the issue in that case at [107]-[108] as apposite to the present: It does not appear to me that his Honour's findings of credit, at least so far as they concerned the appellant, were significantly informed by demeanour - or, in the words of Lee, by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. Rather, they were based on perceived inconsistencies between her evidence and her prior statements. The judgment was not expressly based on demeanour, and while the judge had the advantage of seeing and hearing the witnesses, he did not expressly refer to any observations derived from it. His conclusion adverse to the plaintiff's credibility was based on the perceived inconsistency of her account with two contemporaneous documents; it was founded on the content of her evidence, rather than on the manner in which it was given. In those circumstances, the strictures in cases such as Masson do not apply, and this Court is in as good a position as his Honour to draw the relevant conclusions. In that context, the question is not whether his Honour's conclusions were glaringly improbable or contrary to incontrovertible evidence, but whether they were incorrect. For the reasons just given, I am satisfied that, notwithstanding that there had to be reservations about the reliability of the appellant, the weight of the contemporaneous evidence was such that it ought to have been concluded, on balance of probabilities, that the accident occurred in the manner described by her. 47 The reference to "Lee", is Lee v Lee (2019) 266 CLR 129 [2019] HCA 28 at [55], Bell, Gageler, Nettle and Edelman JJ. And the reference to "Masson", is Queensland v Masson (2020) 94 ALJR 785; [2020] HCA 28 at [119] per Nettle and Gordon JJ the full text of which is: A good deal has been said by this Court about the propriety of an appellate court setting aside a trial judge's finding of fact based on the credibility of a witness For present purposes, it is enough to repeat the observations of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy that, at least where the trial judge's decision might be affected by his or her impression about the credibility of the witness, whom the trial judge sees and hears but the appellate court does not, the appellate court must respect the attendant advantages of the trial judge. If, making proper allowance for such advantages, the appellate court concludes that an error has been shown, it is authorised and obliged to discharge its appellate duties in accordance with the statute conferring appellate jurisdiction. In particular cases, it may be demonstrated that the trial judge's conclusions are erroneous, despite being based upon or said to be based upon an assessment of credibility. That will be so where the trial judge's findings of fact are contrary to "incontrovertible facts or uncontested testimony", "glaringly improbable", or "contrary to compelling inferences". But where, as here, that is not so, it is no justification for appellate intervention that the appellate court might consider that the trial judge did not give sufficient weight to matters that the appellate court considers assist the plaintiff's case. In this matter, it was not open to the Court of Appeal to reject the primary judge's analysis of Mr Peters' oral evidence. (Footnotes omitted.) 48 As I have explained, the primary judge did not simply reject the evidence of Ms Hart based on his assessment of her demeanour. Accordingly, whilst his Honour enjoyed the advantage of hearing all of the evidence sequentially and of observing how each witness presented in the witness box, including nuances in expression not recorded in the transcript, ground one is not simply answered, as submitted by senior counsel for the respondents, by the general proposition that we must "be persuaded that his Honour has palpably misused the advantage that he obtained in seeing the witness give evidence and be cross-examined". That said, however, I accept that we must give due consideration to that advantage and exercise caution when considering the extent to which the reconstruction and unreliability finding does turn on his Honour's assessment of demeanour. 49 I turn next to the analysis undertaken by the primary judge, adopting the order that I have set out.

The objective circumstances considered by the primary judge

Knowledge 50 The first, and "arguably most significant" is the finding at PJ [181] that Ms Hart knew throughout 2017 that the render was misleading in appearance when she dealt with the respondents. She unambiguously said so in an email to Century dated 23 June 2017: We feel that it is extremely important that JD Group make Purchasers aware of the actual internal/external transition and break-up in glazing that will be achieved, as this is not accurately shown in the JD Group commissioned marketing renders. It needs to be reiterated that the marketing renders are 'artist's impression' only and not actual building images. 51 The primary judge was then critical of Ms Hart for the fact that she did not state in that email that she had informed the respondents of that fact at a meeting on 9 June 2017. He reasoned why at PJ [184]: …She does not say that she has informed the Ripanis of the inaccuracy of the render. Though it is not necessarily the case, I consider that had Ms Hart informed the Ripanis as she claims to have, it is likely she would have said so in her email to Century Legend. And this is where the controversy concerning the render, and Ms Hart believing that Carr Design effectively resigned because of it, again becomes relevant. Given the background I have described above, it is likely on the balance of probabilities that if Ms Hart had said what she claims to have said, she would have recorded having done so in her email to Century Legend. Yet, on the contrary, she informs Century Legend's representatives that it is their responsibility to disabuse purchasers of the incorrect impression created by a render it commissioned. 52 At PJ [185]-[187] his Honour referenced other occasions in 2017, 2018 and 2019 when Ms Hart did not record in writing the advice that she said was given to the respondents in June 2017. It is not contested in this appeal that Ms Hart knew that the render was inaccurate, indeed misleading, from at least early 2017 and that at no point did she state that fact in writing to the respondents.

Contemporaneous notes 53 The second objective circumstance that his Honour relied upon is the absence of any express reference in any contemporaneous document to the advice that Ms Hart said that she conveyed to the respondents. At PJ [188] he reasoned in part that: …Given the context I have described, I would expect that as a matter of common professional practice, if not self-protection, that had Ms Hart said what she claims to have said, she would have been astute to have made some contemporaneous record of what she had said; and thereafter, whenever the context made it appropriate, that she would have reminded Century Legend, and the Ripanis if need be, of what she had said about the render in meetings during May and June 2017. That is all the more so given Ms Hart's evidence that she appreciated the render was a "potential timebomb" and that in due course she might find herself sitting in a witness box giving evidence about her communications with the purchasers of apartments. But Ms Hart did not make any contemporaneous note which recorded, in terms, or even alluded to, what she says she told the Ripanis. I have referred above to her correspondence that does not assert that she had already told the Ripanis apartment 14.01 could not be constructed in accordance with the render. 54 To this the primary judge added at PJ [189] the evidence of Ms Hart (which he considered incorrect) that she discussed the Option B floor plan with the respondents on 26 May 2017, which is after it had been rejected by them on 10 May 2017 and at PJ [190] her failure to produce a sketch in her file note made on 15 September 2017 in order to explain to the respondents in three-dimensional form the opening to the terrace that could be constructed. At PJ [192]-[194], the primary judge rejected a submission that he should accept Ms Hart as a witness of the truth by reason of the fact that she was a disinterested party. That fact did not attract significant weight in his Honour's reasoning in that he remained critical of, and placed more weight upon, her failure to make contemporaneous notes of advice given to the respondents, which in his view was contrary to standard professional practice or common sense. Although his Honour noted the absence of cross-examination of any apparent motive of Ms Hart, nonetheless he concluded at PJ [194] that there is "a relevant and plausible motivation which emerges" from her evidence being intrusion upon the commercial relationship between the appellant and the respondents which he characterised as: …As Ms Hart said in her email of 23 June 2017, it was Century Legend's responsibility to inform purchasers, here the Ripanis, that the render did not accurately reflect what was to be constructed. For Ms Hart to have then taken it upon herself to disabuse the Ripanis of the impression created by the render would, on her own assessment of who was responsible for correcting the impression, have been to intrude on the commercial relationship between her client, Century Legend, and its purchasers, the Ripanis. Ms Hart's email dated 23 June 2017 suggests to the contrary that she was respectful of the commercial relationship between Century Legend and the Ripanis, though she did urge that Century Legend correct the impression created by the render. It therefore seems unlikely to me that Ms Hart would say something to the Ripanis which objectively carried the risk that it may have caused the Ripanis to not proceed with the purchase. This inference is fortified by the fact that Mr Perkins also told Century Legend that it should be transparent with potential purchasers.

A change in Ms Hart's evidence 55 The third factor referenced by his Honour at PJ [195]-[214] focused upon the late and "highly material change" in the evidence that Ms Hart was to give, though, and with respect to his Honour, his reasoning strays beyond that factor. In short, procedural directions were made for the filing and service of witness outlines prior to the commencement of the trial. There were two relevant outlines from Ms Hart: one dated 23 October 2020 and the other 20 November 2020. Those outlines did not foreshadow evidence by Ms Hart to the effect that she explained to the respondents in May and June 2017 that the terrace door opening as depicted in the render could not be achieved and that the maximum opening would be in the order of 3m to 4m. The defence relied upon by the appellant made no mention of these facts. Senior counsel for the appellant did not open the case on that basis. The point did not first emerge until part way through the cross-examination of Mrs Ripani on 8 February 2021, but even then it was not directly put to either of the respondents that Ms Hart told them that the maximum achievable opening was limited to between 3m and 4m. 56 By way of explanation, Ms Hart said in evidence that due to the various lockdowns imposed in Melbourne in response to the COVID-19 pandemic, she had not been able to access hard copy documents at her office and that her first available opportunity to do so was in January 2021, when she managed to locate an original file for the development of apartment 1401 which contained within it original versions of the various floor plans with her handwritten annotations. The discovery of those documents assisted her memory as to what was discussed with the respondents at meetings in May and June 2017. 57 Despite that evidence, the primary judge found it unreliable for several reasons. One, that Ms Hart amended the Option B floor plan in May 2017 without discussing the changes with the respondents and that she was mistaken in her evidence that this version of the floor plan was discussed at a meeting on 3 May 2017 (because it was not created until 8 May 2017) and was also mistaken in her evidence that it was discussed at a meeting on 26 May 2017 (because by 10 May 2017 it was redundant). Another, is that Ms Hart was also mistaken in her evidence as to the provenance of the Option A floor plan which she emailed to Mr Hu on 26 April 2017. In evidence, she said that the alterations depicted on that version were made on the instruction of the respondents. On closer questioning, she accepted that her evidence as to that was speculative and that she could not actually recall whether those changes were discussed with the respondents. Her evidence as to that was also inconsistent with the fact that she accepted that the only meeting prior to the preparation of that plan was one that occurred on 7 April 2017, at which she further accepted there was no discussion about the location or width of the opening to the terrace. 58 His Honour applied similar logic to the Option C floor plan that he accepted was produced and discussed at the meeting between Ms Hart and the respondents on 9 June 2017. At PJ [211]-[212] he reasoned: Returning to the annotated Option C floor plan, and to the markings Ms Hart says she made on that plan during a meeting on 9 June 2017, I observe that Ms Hart had previously effected changes to the door positioning and the opening size without consulting with the Ripanis. As I have said, Ms Hart concedes that she amended the Option a floor plan at her own initiative on 26 April 2017, recalling there was no discussion of the opening at the meeting on 7 April 2017. It seems to me that Ms Hart must have done this before there was any occasion to discuss such changes with the Ripanis. This reveals that, at least on one occasion, it was Ms Hart who initiated the changes to the floor plans in relation to the opening onto the terrace. The changes she made, had they been drawn to the attention of the Ripanis, would have revealed that the opening as marked on Option A and later iterations, including Option C, are at least potentially consistent with what might be constructed. Option C allows for a larger opening centred on the fireplace, rather than having what is depicted more faintly on the Rothelowman concept drawing; namely, two smaller door openings to the south-west and north-west. That, of course, would be entirely inconsistent with the representations conveyed by the render. 59 Finally, his Honour regarded as significant in his assessment of the objective circumstances that which he described as the consistent conduct of Ms Hart which he summarised at PJ [214]: I note, however, that other than the explanation given by Ms Hart to the effect that she had disabused the Ripanis of the impression created by the render, Ms Hart's conduct is entirely consistent. She told Century Legend that it was its responsibility to alert purchasers to the inaccuracy of the render which it had commissioned. She made no contemporaneous note of her advice to the Ripanis. She did not say, at any time during the post-contractual period, that she had previously disabused the Ripanis of the misapprehension caused by the render either in meetings or in correspondence. The evidence was instead raised for the first time in the course of Mrs Ripanis' cross-examination.

Uncertain and unreliable evidence 60 Informed by this analysis, his Honour next proceeded to make the adverse demeanour finding at PJ [215]. He did not criticise Ms Hart's "understandable uncertainty of recollection about particular meetings or discussions relative to others" which is important in that the credit finding does not turn on her evidence as to whether the terrace door width was discussed in a meeting in May 2017 as well as in the critical meeting of 9 June 2017, about which senior counsel for the respondents made much in cross-examination and subsequent submissions. Thus, this "understandable uncertainty" does not found the finding that her evidence "was reconstructed and unreliable". What is decisive in the reasoning is Ms Hart's "uncertainty about the impetus for the critical changes to the floor plans". 61 What did his Honour mean by that? At PJ [189], [198] and [199] findings are made about the Option B floor plans dated 8 May 2017 as annotated by Ms Hart. Self-evidently, that plan was not discussed at the meeting of 3 May 2017 and could not have been annotated in the presence of the respondents to reflect a discussion with them. As to the subsequent meeting held on 26 May 2017, his Honour found it "theoretically possible" that it could have been discussed on that day, but unlikely in that Mr Ripani had emailed Ms Hart on 10 April 2017 expressing a preference for the Option A floor plan. From those findings the primary judge concluded that Ms Hart "made changes to the doorways and openings on the Option B floor plan in the absence of any discussion with the Ripanis about the matter": PJ [198]. 62 At PJ [204]-[208] his Honour made findings about the evolution of the Option A floor plan which was first issued on 21 April 2017. Ms Hart emailed that plan to Mr Hu and Mr Tran on 26 April 2017. It differed from the concept plan that Ms Hart had emailed to the respondents on 10 April 2017 in that the door arrangement on the western façade depicted a wider sliding opening opposite the fireplace than shown on the concept plan. In evidence in chief, Ms Hart first stated that those changes were directed by the respondents in language redolent of reconstruction: "it would have been in our discussion", which was objected to. His Honour then reminded Ms Hart of the need to confine her evidence to her actual recollection to which her response was that she could not recall if a conversation about the openings occurred in the meeting of 7 April 2017 adding (T 506): …The next plan that we sent out, which was Option A revision A, does show the openings as indicated, centred on the fireplace, south of that from the entertaining, and north of that within the dining area. I can't recall whether we had informed the Ripanis or discussed with the Ripanis in the initial meeting, or whether those changes were made on our behalf as a - the development of the plan. 63 His Honour concluded that this evidence was "self-evidently speculative" and affected the reliability of Ms Hart's "recollection of events and to the risk of reconstruction on her part", which his Honour noted was one of a number of instances of apparent reconstruction by her: PJ [207]. His Honour further concluded at PJ [208] that properly understood Ms Hart contradicted herself in her evidence about the provenance of the Option A floor plan.

Acceptance of the evidence of the Respondents 64 The third and least complex step in his Honour's reasoning is that he accepted the evidence of the respondents that they were not disabused of their understanding of the representation conveyed by the render until, at the earliest, October 2018. This finding turns on acceptance of almost all of their evidence commencing with why they were attracted to apartment 1401 in the first place; the expectation that they formed based on their understanding of the render; that they would not have entered into the contract but for the representation conveyed by the render and that they would not have paid the deposit, by procuring the bank guarantee and, by implication, would not have approved of the Option E floor plan had they known the true position. In his Honour's summary as to why he preferred their evidence at PJ [216]-[221], he accepted the evidence of the respondents to the effect that they did not have discussions with Ms Hart as described in her evidence. 65 As I will explain, my analysis of this aspect of his Honour's reasoning requires a detailed understanding of all of the relevant evidence that was given at the trial, which I address in dealing with the submissions relied upon by each party.

The submissions for and against ground one 66 The crux of the submission pressed by senior counsel for the appellant is that his Honour did not find Ms Hart to be a dishonest witness: only that her evidence was reconstructed (at PJ [215]) and that we should conclude upon our review of all of the evidence that this finding is glaringly improbable. Senior counsel developed a number of arguments to specifically address the central point of this ground, which conveniently may be grouped as follows. 67 First, that we should be careful in our deference to the advantage enjoyed by the primary judge by reason of the significant delay between the conclusion of the trial on 8 April 2021 and delivery of judgment on 18 March 2022. The primary judge did not acknowledge the delay or explain its cause. It is a matter of common experience that in a busy court there are many and varied reasons for delay in the delivery of judgments: they may be internal, such as the need to hear and decide more urgent cases or, as here, external in that most of the trial was conducted when Melbourne was subject to lockdowns due to the COVID-19 pandemic. However, as a general proposition, the fact of long delay rather than the cause, may "weaken a trial judge's advantage" with the consequence that "delay must be taken into account when reviewing findings made by a trial judge after a significant delay from the time when the relevant evidence was given": Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 149 at [70], Carr, Emmett and Gyles JJ. Beyond the framing of that submission, counsel did not interrogate how the delay in this case must be taken to have infected the credibility assessment of the primary judge, nor did counsel address the subsequent passages from that case at [71]-[73]: In the normal course, statements made by a trial judge of a general assertive character can be accepted as encompassing a detailed consideration of the evidence. However, where there is significant delay, such statements should be treated with some reserve. After a significant delay, a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision. In cases not affected by delay, an appellate court is entitled to assume that the mere failure to refer to evidence does not mean that it has been overlooked or that other forms of error have occurred. However, where there is significant delay, no favourable assumptions can be made. In such circumstances, it is up to the trial judge to put beyond question any suggestion that he or she has lost an understanding of the issues. Where there is significant delay, it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected. It is necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses (Hadid v Redpath (2001) 35 MVR 152 at [34] and [53]). Of course, where the trial judge, notwithstanding significant delay, demonstrates by his or her reasons that full consideration has been given to all of the evidence, the parties and the public may be satisfied that the delay has not affected the decision. More specifically, if the reasons demonstrate that the delay has not weakened the trial judge's advantage, confidence will be maintained in the decision. For example, it would be open to a trial judge to explain in the course of giving reasons that contemporaneous notes were made of impressions formed as evidence was given by witnesses of importance (see R v Maxwell (unreported, New South Wales Court of Criminal Appeal, Spigelman CJ, Sperling and Hidden JJ, 23 December 1998)). 68 Here, although the primary judge formulated detailed reasons for his rejection of the evidence of Ms Hart, the delay in the publication of reasons, in my view, necessitates a comprehensive review of all of the evidence relevant to the his Honour's assessment of her demeanour. 69 The second submission as developed is that Ms Hart gave clear, credible and compelling evidence that she explained to the respondents on 9 June 2017, by reference to the annotated and dated version of the Option C floor plan, the proposed location of the doors on the western façade that there would be three individual openings and that it was wrong for the primary judge to focus on the provenance and development of Options A and B, which distracted his Honour from focusing on the most important evidence of Ms Hart. 70 Pausing there, the argument is not that the rejection of the evidence of Ms Hart by the primary judge was erroneous as contrary to incontrovertible facts or uncontested testimony as understood by reference to the joint reasons of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox) at [28]. Although the appellant's written case in a single sentence is framed as attacking the reconstruction conclusion at PJ [215] on the basis that "it is glaringly improbable that Ms Hart's evidence was a reconstruction", the balance of the submission asserts specific error in several respects which led the primary judge to that conclusion. And that is how the arguments were developed orally. Accordingly, this appeal is not one within that category of "some, quite rare, cases, [wherein] although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences'": Fox at [29]. 71 Thus, senior counsel for the appellant developed five discrete points, though there is a degree of overlap: (1) Ms Hart's evidence was not speculative; (2) her evidence is corroborated by a contemporaneous record; (3) there is an explanation for her failure to refer to the advice given to the respondents; (4) she explained the reason for the lateness of her evidence; and (5) the evidence of the respondents should not have been preferred. 72 In contrast, and in broad summary, senior counsel for the respondents submits that properly understood, this ground is a challenge to the assessment of the credibility of the evidence given by Ms Hart and that it is not open to this Court to reach a different conclusion "because [it] thinks that the probabilities of the case are against, even strongly against" the relevant finding of fact and the rejection of the evidence of Ms Hart must stand "unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'": Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, Brennan, Gaudron and McHugh JJ. 73 In developing that submission, senior counsel relied upon the following matters: (1) the stark contradiction between the evidence of Ms Hart and that of the respondents; (2) the omission of any reference to the critical evidence in either of the outline witness statements of Ms Hart; (3) the fact that Ms Hart only "remembered" her evidence during the course of the trial, and by reference to documents recently located; (4) Ms Hart's account is not supported by the objective evidence; (5) the Option C floor plan is not a contemporaneous record that corroborates the evidence of Ms Hart; (6) Ms Hart altered the door configuration shown on the floor plans on at least one occasion and without reference to the respondents; (7) Ms Hart's evidence was not corroborated by Mr Hu or Mr De Mooy; and (8) in all of the circumstances the primary judge was correct to conclude that Ms Hart's evidence was the result of a process of reconstruction by reference to certain documents. 74 To understand these arguments it is necessary to essay the evidence of Ms Hart and its context in some detail.

The evidence of Ms Hart and the sequence of meetings 75 I commence with a meeting between Ms Hart, Mr Hu and the respondents on 7 April 2017. Mr Ripani gave evidence in chief that he attended that meeting with the hard copy promotional book that he had earlier received upon his first attendance at the display suite in January 2017. His evidence was not given sequentially. Prior to the meeting, he and Mrs Ripani had prepared a handwritten list of matters to be discussed, which he transmitted by email to Mr Tran on 4 April 2017. His covering email in part reads: As per our phone conversation. This is a rough on the briefs we would like to discuss with the Architect. You have seen our apartment and you can understand what we are looking for with this new one. We are keen to sit in with the Architect to have something discussed and drawn up. Please advise when we will be able to meet. Also as discussed with the comment included on the signed contract, the 21 one (sic) day cooling off period should be effective once we have had the drawings done and all confirmed. 76 The attached handwritten note under the title "Brief" lists as the first item: "inside/outside to blend seamlessly. Same colour finish inside to outside. Timber and stone". This note is evidence that the respondents intended to discuss the façade opening at the meeting. 77 Returning to the meeting, Mr Ripani said in evidence (from T 386): …---Well, I had the hard copy book with me. I had opened it up to the page of the render, and I expressed how much we loved the open space, the door opening, and the whole flow-through from the living to the outdoor area. We really like that, but we weren't really keen on the interior design, and we would like to do something that was more us. And did you give any sort of description about what might be necessary to make the interior of the apartment more you?--- Well, we just said we weren't overly thrilled with what was put forward, and Kate had said that Rothelowman had some of their own interior designs, which she had actually brought out to have a look at. Before I take you to that, was anything said to you when you raise the fact that you really love the open design, to suggest that might be---?--- Nothing was ever raised. --- not part of the design of the apartment? Sorry?--- Nothing was ever raised. 78 The witness was then taken to the draft Rothelowman plan, confirmed that he recognised it and stated that it was presented by Ms Hart at the meeting. His evidence was that she said this was a plan that he and the respondents could look at, and they did. They expressed the view that they liked that plan more than the earlier concept plan. His evidence continued (from T 387): Do you recall anything further about what was discussed amongst the people that were at that first meeting before it came to an end on the first occasion?--- Not really. We had made a number of comments about the floor plan and Kate was going to have a look at it and come back with a revised drawing. … From memory, it was simply whether you could recall whether anything else was discussed before that meeting came to an end apart from the one - matters that you've referred - you've told His Honour about?…Nothing else was discussed. By the end of the first meeting, what was your belief as to what the apartment that you are purchasing, what its appearance would be where the interior meets the exterior along the terrace by the pool?--- Well, our understanding was that we were going to have--- Ms Costello: Objection. Mr Stuckey: no, not we, what was your---?--- Sorry. Sorry. --- Personal understanding, Mr Ripani?--- My - my understanding was that we were now focusing on the interior, because everything else was a given. All right. And when you say it was given look, what did you think that was?--- The large, open door…. Was anything said in the course of that meeting when Ms Hart produced that Rothelowman plan to describe what sort of wall or barrier was drawn in that plan? Was that the subject of discussion, about what was shown in the plan between the terrace and the interior of the apartment?--- Absolutely not. 79 The meeting of 7 April 2017 occurred on a Friday. The following Monday, 10 April 2017, Mr Ripani emailed Ms Hart and said: Good morning Kate. It was really nice to meet you last Friday, Nina and I were quite excited about your floorplans that you had drawn up as an option to the ones we had seen. We look forward to seeing some revisions based on our discussions to your floor plans. For now are you able to forward us your initial drawings you had done as Nina and I would love to look at them thoroughly. Also when you have a chance could you please call as I would like to discuss the curved wall in the main living area. Please advise, Thanks again for your time on Friday it was really good, 80 Ms Hart replied to the respondents by email later on 10 April 2017. She attached a draft floor plan for apartment 1401, which is undated and is not designated by an alphabetical option letter: 81 Her email contains no relevant observations, apart from the fact that the attachments were floor plans for apartments 1401 and 1417. The plan for 1401 (when viewed in A3 format) clearly depicts two sliding doors with fixed mullions on the western façade between the pool and outdoor living area and the internal living and entertainment areas. This plan includes the relatively prominent note that: "Window size and location may vary. Refer to level plans for window locations". Just what was meant by level plans was not explored in the evidence and no finding of meaning was made by the primary judge. 82 Mr Ripani responded by email on 11 April 2017, commencing with the sentence: "Thanks for the floor plans" and continued: However, what we really wanted was not just the floor plan for Apartment 1401 but a copy of all the coloured images that you had drawn up for 1401. It was the coloured images of the Bar area, the walk in Cellar and so on. I'm assuming its a big file but are you able to send it as a zip file or can you down load (sic) it onto a USB that I could collect if this is not a problem… Nina and I want to go over all the drawing (sic) you had for level 1401. Also with regards to 1401 we want to talk to you about this wall that divides the two areas in the living room. 83 Ms Hart responded on 12 April 2017 and attached the Design Development Presentation for apartment 1401 as "presented to you last Friday". That document is in concept form. It briefly describes the design approach, the location, the derivation of the building form and includes concept floor plans. She added that: "please note that the images and design are all work (sic) in progress and not final, resolved images". The attachments included four versions of the concept plan for apartment 1401, each of which clearly depicts the intended door openings with mullions on the western façade together with sliding doors which are pellucid in illustrating that with the doors open, the maximum width was much less than as depicted in the render and that only two sliding doors were proposed. As an example there is this plan: 84 Mr Ripani replied to Ms Hart later that day by email as follows: Hi Kate, Exactly what I was asking for… Got it and downloaded it… Awesome… Thank you… We are looking forward to seeing your revised drawings based on our discussions… We will look at the small study in relation to the pool as well. Also can we discuss the curved wall early next week as this Thursday might be a little difficult for me. I'm pretty much free any time next week. We have to get you to Prima at some stage as well. Thanks again and talk soon, Cheers, 85 To this Ms Hart replied by email: "Yes we are looking into the variations to the planning as discussed last Friday. We will aim to have something back to you by Tuesday, Wednesday of next week". That timeframe was not achieved by Ms Hart. Rather, on 26 April 2017 she emailed Mr Hu a revised floor plan Option A for apartment 1401 "for further client comment". Mr Tran forwarded that email to Mr Ripani later that day. Of the Option A plan, Mr Ripani said in evidence (T 391): Now, did you personally look at that plan when it was received from Kevin Tran in April 2017?--- Yes, I did. And did you - what about it, did you note, if anything?--- Items that we had discussed at the time to be actioned were done, so - in particular the chevron flooring that runs outside. 86 This evidence indicates that the respondents gave studied consideration to the Design Development Presentation. Mr Ripani confirmed as much when questioned about the differences between the plans in the Design Development Presentation and the draft Rothelowman plan (from T 390): Did you notice whether there were any changes about that plan from the earlier one you had been shown?--- Yes. The chevron flooring we - Kate had suggested that we take the chevron flooring pattern to the outside, so that when all the doors are open you had that seamless flow-through effect. So that was one of the main… Let me ask you firstly, when was - when did Kate Hart say that?--- At the meeting. That's the first meeting?--- Yes. And did she use those words, that you're - to the best of your recollection, did she use those words?--- To the best of my recollection. His Honour: So chevron, describing what might also be described as herringbone pattern, is that it?--- Yes. 87 On 26 April 2017, Mr Tran emailed the respondents and attached the Option A, revision A floor plan for the apartment dated 26 April 2017. That plan clearly depicts an alteration to the proposed glass door arrangement with fixed mullions on the western façade with an opening opposite the fireplace formed by sliding doors at significantly less width than the render: 88 The alteration to the proposed doors is that on this plan three sliding doors are depicted, with the widest opposite the fireplace. That plan is drawn to a scale of 1:100 at A3 size which allows one to accurately determine that opening width at 3.6m. 89 On 3 May 2017, Ms Hart met with the respondents. The evidence from Ms Hart of what was discussed at the meeting is somewhat unsatisfactory in that she could not precisely recall the date, which she wrongly assumed was 8 May 2017, which is the date marked on a revision of the Option B floor plan, on which she made handwritten annotations. As the primary judge correctly found, that plan could not have been discussed at a meeting that occurred before it was revised and annotated. 90 The plans were further revised. On 8 May 2017, Mr Tran emailed the Option A, revision B and Option B floor plans to the respondents. I reproduce each. 91 Option A, revision B is: 92 Option B is: 93 Each of those plans clearly depict the proposed arrangement of the doors on the western façade as comprising several openings with fixed mullions and an opening formed by sliding doors which, consistently with Option A revision A, records the position of the sliding doors opposite the fireplace. The width of the opening is ascertainable by scaling. On each plan three sliding doors are depicted, with the widest opposite the fireplace. Once again, it is clear on objective analysis, and without resort to scaling, that the proposed opening is manifestly smaller than depicted in the render. 94 On 10 May 2017, Mr Ripani emailed Mr Tran and Ms Hart and said in part: The revised Drawings look really good. Attached is Option A and this is the floor Plan We like. Three small issues that we need to discuss but nothing too major. 95 The three points then listed related to the size of the powder room and the ability to increase the number of fridges in the larder, the arrangement of the kitchen area and the placement of the television on a shelving system. Objectively assessed from the Option A plan, the visual appearance and arrangement of the windows and opening on the western façade is no less prominent than the detail of the three matters specifically mentioned by Mr Ripani. 96 On 26 May 2017, the respondents met with Ms Hart and Mr Tran. Other than recording the broad submission of the appellant that during "meetings" in May and June 2017, at which time Ms Hart explained to the respondent the intended position of the doors on the western façade at PJ [160], the only finding of fact that the primary judge made about this meeting is at PJ [199]: The only meetings which occurred between the Ripanis and Ms Hart in May 2017 were those held on 3 May 2017 and 26 May 2017. At the first meeting in May 2017, Option B did not yet exist because it was not created until 8 May 2017 and thus it could not have been annotated in the presence of the Ripanis on 3 May 2017. It is theoretically possible that Ms Hart's evidence about annotations to the Option B floor plan occurred at the second meeting in May 2017. However, if that was the meeting she had in mind, again it is inconsistent with Mr Ripani's email of 10 May 2017, in which he explained that the Ripanis had already reached the view that: "Option A...is the floor Plan We like." In any event, the annotations made by Ms Hart on the Option B floor plan are merely pen strokes (see Annexure V). 97 Ms Hart's evidence was that at the meeting on 26 May 2017, she produced and discussed with the respondent Options A and B, despite the fact that Mr Ripani had advised by email of 10 May 2017 that Option A was the floor plan "[w]e like". She said that at the meeting she made handwritten notes on the Option A and B plans which recorded certain of the matters discussed with the respondents. 98 Option A as annotated is: 99 Option B as annotated is: 100 There was considerable cross-examination of Ms Hart as to how it could have been the case that Option B was discussed at the meeting of 26 May 2017, when it had earlier been made clear by Mr Ripani in his email of 10 May 2017 that Option A was preferred. It is fair to observe that Ms Hart did not give clear or satisfactory evidence in answer to those questions. 101 In consequence, and as might be expected, this topic was returned to in the re-examination of Ms Hart where she explained the notations which she made on each of these plans as follows (from T 687): … The-the-looking at the - the notes or comments that I've written on the plans, indicates to me that this has been a - a conversation rather than - and a directive from someone to me in relation to my noting down particular brand names for appliances, a teppanyaki, a wok, and a gas and induction. That's obviously somebody's wish. So that has been a direction to me. The relocation of the fireplace proposed within the master bedroom to be placed against the wall, the idea of a large pivot door; those things have been - those notes - also just the arrow between the dining room and the barbecue area shows a location for a crossover between internal and external. Those all look like - those are directives. They're not something that I have instigated myself. And who are they directives from?--- I would say there - they would be a directive from the Ripanis, as this is their apartment. … Okay. And why - why - well, can you tell His Honour now, looking at both 1919 [Option A] and 1918 [Option B], can you say anything about what meeting 1918 was at?--- I believe that was at the same meeting. Because looking… Why?--- Because there is the same - there's the location of the fireplaces, there's comments on the fireplaces. Unless it's something that hasn't been picked up prior to. Also the - the - I mean, in the 1918, well, there's the comments about making the laundry larger and making the - the storage room smaller. And also the fact that Option A/B was the Option that was the one - the - it was the Option that the Ripanis were more in favour of, so I'm thinking that on the 26th, when they came in to discuss the plan that this is the plan that, really, we should have been discussing, because that was the Option they wanted, as opposed to the Option B. And so can you tell His Honour why there are two plans with your red handwriting on it?--- I would say that in discussions we've realised that we're looking at the wrong plan of Option B and that Option A/B is the plan that the Ripanis were really wanting to refer to. So we've brought that plan in and continued our conversations. Looking at the western façade on 1919 we see a red arrow and---?--- Yes. --- red markings. What can you tell His Honour about when you made those marks?--- It would be in the same meeting--- When you say "would"?--- It was in the same meeting, because it's all part of the same conversation. And those markings are basically pinpointing and explaining the mullion breakup of the window openings, the idea of having fixed glazing panels, open - open areas between glazing panels, fixed open - fixed. Then the idea of looking at where the location of those panels are in the location of an - an entry or a access door between the dining area and the barbecue/terrace area. His Honour: Ms Hart, which plan---?--- Sorry, Option--- --- are you looking at when giving that evidence? Just give me the court book number?---Certainly. Sorry, my apologies. 1919, Option - plan Option B. And so that is the plan that you say was before the meeting with Mr and Mrs Ripani? In front of you at the meeting I mean?--- Yes, yes, yes. And are you able to say whether that meeting occurred some time around 8 May, or do you think - or is it your recollection that the meeting was on 26 May, or you can't say?--- I - I can't say for certain. Yes, all right. Now, if you look at the plan at 1125 [Option A, revision B], which is the plan that has been identified by you is the plan attached to the email---?--- Yes. --- from Mr Ripani at 1122, in which Mr Ripani says: Attached is Option A and this is the floor plan we like. Do you recall that email?--- Yes. If you then - so if you go to 1125 and compare that plan with the two plans at 1918 and 1919, which of those two plans does the plan at 1125 correspond to?--- Closer to 1918. Yes. But it's your evidence that the plan before the meeting, whether it was in early May or later in May, is found at 1919, which is Option B; correct?--- Both plans were at the meeting. Both plans were before the meeting?--- Correct, yes. I see. So the - why were both plans, can you recall, before the meeting when the email from Mr Ripani opted for or specified that they, the Ripanis, preferred Option A, which is strictly Option A/B that one finds that 1918?--- They - I'm getting confused. The - I'm not 100 percent sure the - I would say that plan 1918 would have been in the meeting of the 26th because it corresponds to Mr Ripani's email. The plan 1919 and was at a meeting, but I can't - I can't give an exact date of when that meeting was. Whether it was in the same meeting of the 26th or in a meeting around - around early May. 102 His Honour posed a further series of questions to Ms Hart, doubtless in an effort to obtain clarity as to what was discussed at the meeting on 26 May 2017. His Honour made it clear that he was troubled by her evidence that Option B was discussed on 26 May, when by that date it had been superseded. Ms Hart failed to give clear evidence in answer to his Honour's questions, and counsel for the appellant resumed her re-examination. Certain questions were objected to, Ms Hart withdrew from the witness box and upon her return the evidence continued as follows (from T 693): Without speculating, can you tell His Honour what you can remember about the meeting on 26 May and what A3 plans were present at that meeting?--- On 26 May. 26 May - well, I can't recall for certain. I would say it would be 1918. All right. So I'm going to move to a different topic now. His Honour: Before you do, when you say you would say it would be 1918, that's the Option A---?--- B. --- A/B, which was the Option about which Mr Ripani expressed a preference for?--- Yes. And so you think that that plan was before a meeting on 26 May?--- In line with the - with the email that I sent out on 8 May where that option is being provided to Mr Ripani that that plan existed prior to 26 May meeting. Yes. And, to the best of your recollection, there was no meeting between 26 May and 10 May, which was the date of Mr Ripanis email to you?--- Yes. To the best of my recollection there wasn't another meeting between those two times. Yes. And so on 26 May can you recall whether the plan at 1919, which was the Option B plan, marked by you and your hand, was before that meeting. That is, available at the meeting?--- Yes. I can't say for certain, but I would say based on the series of events I would say yes, but I can't be certain. But the only meeting post 10 May occurred on the 26th?--- Yes. And I think, I'm right, that you've given evidence that the markings on both of the plans 1918 and 1919 were markings made by you at a meeting?--- Yes. With the Ripanis?--- Yes. So it follows, doesn't it, that both of the plans were likely to have been before the meeting on the 26th. That is to say, in front of the meeting. When I say before the meeting, tabled, if you like?--- Yes. Yes. All right. But you can't recall specifically?--- I can't recall specifically. 103 His Honour then invited counsel for the appellant to state whether she had any further questions arising from that, to which she responded that she did not. There is further evidence as to the content of the discussion on 26 May 2017 as summarised in a subsequent email sent by Ms Hart to Mr Hu and Mr Tran, amongst others, on 5 June 2017 and which attached the Option C floor plan, marked as a draft and dated the same day. In turn, Mr Tran forwarded that plan to the respondents. Ms Hart's covering email reads: As mentioned earlier, please find attached amended plan for Apt 1401. Following on our last meeting with Nina and Walter, the plan involves: • opening up the kitchen into a centrepiece of the dining area. • a long bench come dining table allows for more intimate gatherings as well • a buffet for catered parties or simply a preparation bench. • review of the powder room, laundry, comms and storage areas have also been reviewed. • review of George's ensuite and WIR. Please note that the robe between ensuite and WIR area would be proposed as a double sided bench draw unit, allowing George to access items from within the bathroom or WIR. We look forward to any additional comments Nina and Walter might have. Happy to meet or telephone call to discuss further. 104 The reference to the identity of "George" or his relevance to the case was not explored in the evidence. 105 It is surprising that the primary judge did not make specific findings of fact as to what was discussed at the meeting on 26 May 2017 with the benefit of this evidence. The findings at PJ [199], which are clearly adverse to and must have influenced his Honour's assessment of the demeanour of Ms Hart, ignore the quite plausible evidence given by Ms Hart to the effect that each of Options A and B were tabled and were the subject of discussion at the meeting on 26 May 2017. It does not logically follow from the fact that Mr Ripani stated in his email of 10 May 2017 that the attached Option A "is the floor Plan [w]e like", that Option B could not have been tabled and discussed at the meeting on 26 May 2017. What is clear is that options were developed, altered, exchanged and discussed from 7 April 2017. In that context, that Ms Hart made handwritten annotations on a version of the plan which was not preferred is hardly a matter which attracts the significance that his Honour ascribed to it at PJ [189], more so when his Honour, with respect, failed to notice the explanation for the existence of two versions of the floor plan that were discussed at that meeting which Ms Hart gave in direct answer to his Honour's questions. 106 I turn next to the Option C floor plan dated 5 June 2017. Ms Hart's evidence was that she printed a copy of this floor plan and discussed it at a meeting with the respondents on 9 June 2017. That plan exhibits a number of handwritten annotations in blue, black and red ink: 107 Of those annotations, Ms Hart gave evidence in chief that each was discussed with the respondents during the meeting on 9 June 2017, which date appears on the upper left-hand portion of the plan. She stated that it was her practice to make handwritten annotations on plans in order to reflect the substance of discussions. On the northern end of the western façade the annotation reads: "2 x door, potential stacking to side". To the south of that annotation there appears a series of red markings at the location of doors on the western façade; each placed to indicate the position of the doors with fixed mullions and the direction of the proposed stacking of doors in the open position. Ms Hart explained that the parallel red lines opposite the spa indicate double doors stacking to the south in order to form a central opening. Three door openings are depicted with the widest opening opposite the fireplace. 108 What is objectively clear from the Option C floor plan is that it details the entirety of the proposed door stacking mechanism on the western façade and is drawn to scale. The straight section of the western façade extends for a distance of approximately 11m, commencing at the southern point to the commencement of the curvature at the northern point. That floor plan clearly does not depict the western façade, with open doors, as having the same, or similar, flow-through design that is depicted in the render. By scaling, the maximum opening width is approximately 3.6m. 109 Ms Hart gave the following evidence in chief as to what was discussed with the respondents by reference to the Option C floor plan (from T 513): So in the - in that meeting, what did you say to the Ripanis and what did they say to you, if anything, about the western façade?… In that - in that meeting, again, we were talking about the openings along that façade where the doors were going to stack, and how large the openings would be between the interior and the exterior. So when you say "how the doors would stack", would you please use the words that were said in that meeting, to the best of your recollection, and tell his Honour what was said about how the doors would stack, and who said it?--- Yes. We were discussing the size of the openings between the interior and exterior. If I start at the windows or - the façade at the entertainment area. There are two red lines which indicate that we are talking about the - the double doors stacking to the south of the page - of the entertainment area. This then allows for the central opening between the fireplace and the external seating to the pool area. …… What did you say to the Ripanis?--- That two glazing panels would stack to the left, or to the south, of that entertainment area. What else did you say?--- This then allows the central - central section, where we've got doors stacking left and right, to actually stack on the fixed pane of glass that is north and south of the fireplace. So in - that fixed pane of glass. Is that the - is that the one that's just below where it says pool. It is to the right?--- Yes. And is there any other fixed pane of glass you're referring to?--- No. Not in that instance. So I see some red marks along the façade, could you tell his Honour---?--- Yes. --- whether you said anything to the Ripanis in connection with those red marks?--- There's a series of red dots along the western façade within an area that is not displaying any horizontal - graphically representation of window mullions. There's a series of red dots instead. And that is me telling - describing to the Ripanis that this opening is a series of windows - panes that can be opened left and right. That that opening is the equivalent of 1, 2, 3, 4 windowpanes. And was anything said about the width or measurement of the windowpanes in that meeting, Ms Hart?--- Yes, that each of those mullions - each of those - that mullion breakup, or those windowpanes, is roughly a metre. Did you say anything to the Ripanis about the way the doors would stack?--- Yes, that the doors would be stacking either left - would be stacking left and right of the main opening. And so that's the opening you're talking about next to the fireplace; is that right?--- Correct, yes. And were there any other references or any other things you said about stacking doors in respect of any other areas?--- Yes, yes. Because we've got the main opening, and we have doors stacking left and right, this is the reason why the - a smaller opening between the entertainment area and the spa needs to stack to one side only, to allow for the larger opening to stack left and right, and then also the opening between the dining area and the barbecue area, there is two grey lines, again, side by side indicating that the panel stacks to that - to one side of the opening. His Honour: So is the position that you can open the doors left and right?--- That they stack--- That when you stack them, they stack, in the case of the large opening, to the left and the right, or to the north and the south; is that right?--- Yes, yes. Ms Costello: And how many door openings are there between the interior and the exterior along the western façade, Ms Hart?--- Door openings, there's three. What, if anything, did you say to the Ripanis about the number of door openings along that façade?… That there are three individual openings. There is the opening between the entertainment and the pool, the fireplace and the external seating area, and then an opening between the dining and barbecue area. And what, if anything, did Walter Ripani or Nina Ripani say to you during that meeting when you explained how these doors worked?--- That the priority is between the main living entertainment area and the pool deck area, and that they want the opening to be as large as it can be. And who said that, Mr or Mrs the Ripani--- Walter, and supported by Nina. There is a written notation near the façade, level with the dining table. What does that say, next to the asterisk?--- Yes, that seems to be my shorthand for the word door, and the asterisk says a potential stacking to side. And what - can you recall why you wrote that?--- Yes, that - because the Ripanis wanted to maximise the opening between the interior and the exterior, and we were trying to optimise how many doors we could get between the dining and the barbecue area. And what - so that's why you wrote it. What does it mean, "potential stacking to side"?--- That I would need to investigate whether or not we can get two panes of façade breakup, two panes of glass to stack to one side. I would have to investigate. In relation to the central door near the fireplace, which stacks left and right if you're looking out to the pool terrace?--- Yes. What, if anything, did you say about the width of that area?--- That main opening, that it is a series - it is a - the width of that opening is a breakup of the one metre mullions, so there - we would be looking at four window mullions so that that opening is roughly four metres. During the meeting which the conversation happened with reference to the plan, what size was the printed version of the plan that you had at the discussion?--- A3. And thinking back to the meeting on 9 June, what did you say, if anything, about the door stacking system?--- Did not mention the door stacking system. And did you say anything about the number of doors that would stack against each other?--- Not specifically. His Honour: I thought you just indicated, Ms Hart, that she will notation "potential stacking to side" related to whether two doors could stack in one position?--- Yes, in - for that particular - that particular opening. Yes, and so did you say anything about that to Mr and Mrs Ripani at that meeting on 9 June?--- Yes. Yes. What did you say?--- That those two panels would need to stack to one side between the dining room and the barbecue area and that the two panels between the entertainment and the pool side would need to stack to one side therefore allowing the greater area to stack north and south, or left and right, of that opening. Yes, and I thought you said that you needed to investigate whether that was possible? ---Correct, I did. And did you explain that to Mr and Mrs Ripani?--- Yes. Yes. Thank you. Ms Costello: Also, there's red dot down in the master bedroom area and some what looks like black pen marks?---Yes. Could you tell his Honour what you said about that area during the meeting?---That was a request by Walter and Nina to have access from the master bedroom to the pool spa area. And what did you say to them about that?--- Yes, that we would look into that being achieved. And why did you - why did you put the black markings there? What does that signify? ---That signifies that it is not a sliding door, but is a leaf door. There can't be a sliding door because of the curve within the façade. And what about the two red lines just above that? --- That is an indication of the sliding door stacking to one side and the sliding doors being the access between the entertainment area and the pool deck. What did you say about that?--- That those two - those two doors would need to slide to one side and the reason being is that allows for a larger opening between the fireplace and the external seating area to stack left and right. 110 Counsel then produced to the witness the Option E floor plan and invited her to compare that plan with the Option C plan. 111 The witness was asked to indicate what differences there were between each plan and her evidence continued (from T 517): …---We are indicating that - the opening between the entertainment area and the pool deck, that there are sliding doors opening to the left of that - or to the south of the plan. That there's the same opening between the fireplace and the pool deck - entertainment area, with arrows indicating right and left - or north and south - and that there is an opening between the dining room and the barbecue area, with the doors stacking to the south. Now, you said in evidence that there were words said in the 9 June meeting about the Ripanis wanting - I don't want to misquote you, but it was something about a wide opening in the centre?--- Yes. Recall in that evidence of yours, has anything changed in respect of the width of the opening on the Option E plan, Ms Hart?--- No. And before this date - that being 16 June 2017, did you say anything to the Ripanis about any confirmation of their request to have a maximised opening?--- That we can't have - that this is the largest opening that - that I believe that we can achieve, because of the wind loadings against the façade. And---?--- That it can't be a continual opening. When did you say that?--- I said that on the 9th of the 6th, I've said that in many - definitely on the 9th of the 6th, when we were discussing the façade. And I see that - when I look at the Option C plan, there are your handwritten marks, in a vertical direction, next to the dining table, and I see that, on the Option E plan, there are marks in that same area?--- Yes. Who make the changes to the Option E plan, in that respect, Ms Hart?--- Rothelowman made those changes, on my request. And who at Rothelowman made those changes?--- Her name is Ellie Kirk; she was an architectural student at the time. All right. And why were those changes made?--- They were made in response to our meeting on the 9th of the 6th. And how do you convey instructions to - Ellie, did you say---?--- Yes. --- about what to change in the plan?--- I go through the comments that were made on the previous plan - that's the plan of the 9th of the 6th 2017 - to ask her to update the documentation to reflect the comments that have been made. And when you sit down - when you sat down with Ellie to explain the changes you wanted to make to the Option E plan, did you make any annotations to the Option E plan, during your discussions with Ellie?--- No. Why not?--- Because the Option C plan indicates what it is that I'm requesting her to change. She may have made her own private notes - I don't know - but the notes on the Option C plan, I would verbalise to her - discuss it with her - so that she understands what she needs to update onto the next round of that plan. Okay. And the lines next to the dining table, but vertical lines on the herringbone area before the façade. What do they signify?--- They signify that there is a panel that is sliding south. When you say "a panel", does it signify how many panels are sliding south?--- In this instance, it's indicating that there are two panels. And - you said south. There are two similar pictures. One is near the dining table and one is near the entertainment area opposite the spa. Which ones are going south, and which ones are going north?--- In this instance, the ones between the dining area and the barbecue area are going - they are stacking south, so that they would then - close by moving to the north. And the ones between the entertainment and the pool area, down - adjacent to the - opposite the spa - a word that says "spa" - those panels are also - to open, move south - to - to close, would then move north. HIS HONOUR: So I can just understand this, if one looks at Option C, at 1928. For the larger opening, adjacent to the fireplace, two doors are going to slide and stack to the north, pretty much adjacent to the dining table. Is that correct?--- They would - yes. Yes, that's what we've indicated in the meeting - those meeting notes. Yes. And two doors are to slide to the south. And where do they stack?--- The two doors between the entertainment and the pool area. That's a separate opening?--- Yes. But just - we've got - are there four doors in the main opening?--- Yes, there are four doors in the main opening. So two are going to stack to the north---?--- Correct. --- near the dining table?--- Near- near the living room. So - but - so two doors would stack against the pane of glass which is opposite the word "living room" --- Yes? --- --- or - and two doors would stack south, just opposite the couch, which is shown in the entertainment area. And then there's another opening on - to the north, isn't there, near the dining table?--- Correct, yes. And is that one door that slides open or two?--- That - the discussion was to have two doors. And they would both slide to the dash and stack to the north?--- Correct. Yes. Where indicated, pretty much opposite the dining table?--- The table. Yes. And then finally, there's the third opening near the entertaining area, or adjacent to it, near the spa?--- Yes. And those two doors would slide and stack to the south?--- Correct. Yes. And that has been reflected on Option E?--- Yes. The difference being the stacking on Option E is that the doors between the barbecue and the dining - no longer - don't stack north but they stack south. So the opening, looking at Option E on 1915 - the opening is near, or adjacent to, the dining area, is it?--- Yes. And the two doors that are indicated are stacking to the south of the opening, are they?--- Yes. And where on Option E is the stacking of the two doors for the larger opening, adjacent to the living room?--- They're - they - they're only shown on a single pane, but they should be a double stacker. So there should be two doors shown?--- Two lines. Yes. As there is - and again, is that also the case in relation to the two doors that open, in respect of the large opening, and stack to the south, pretty much in line with the word entertain?--- Correct, yes. So - I see. So it - the stacking points should indicate two doors, but indicate only one?--- Correct. 112 The examination of the witness then returned to counsel. A call for production of all original versions of each of the floor plans was made by counsel for the respondents. Ms Hart explained that the documentation could be sent by courier from the Rothelowman offices and it was. Ms Hart was then questioned about this documentation. She explained that she ceased to work on the development project when it moved from the design to the construction phase and at that point handed over all of her documents to one of her colleagues, who at some point had left the employ of Rothelowman. A document that she handed over was a folder, kept in hard copy, specifically relating to apartment 1401. Until approximately two weeks before she gave her evidence, she had assumed that the folder had been lost. During each lockdown period in Melbourne, Ms Hart worked from home, which explained why she had not been able to conduct a physical search of her office for this folder until early February 2021 when she managed to locate it underneath the desk of a work colleague. The folder and each of the original option plans were produced to counsel for the respondents before the commencement of the cross-examination of Ms Hart. 113 Notably, the primary judge did not find this explanation for the late production of the documents to be false. 114 I return to Ms Hart's evidence in chief, which then moved to a meeting on 15 September 2017 with Mr Hu, which followed an earlier meeting that day between Mr Hu and the respondents. Ms Hart explained that Mr Hu conveyed aspects of his earlier discussion with the respondents. For this meeting, Ms Hart made two pages of handwritten notes of matters that were discussed. I reproduce it here: 115 Her notes include: "Sliding doors to open as wide as possible to terrace" about which she gave evidence as follows (from T 525): And can you tell His Honour what you recollect about anything that was said that led you to make that note, during the meeting with Peter Hu?--- That it was a request by the - a repeated request by the Ripanis, to have the opening, leading from the interior to the terrace, as being as wide as possible. …… Putting yourself back in time - if you can - to 15 September '17, did you have any measurements in mind, when you wrote that note?--- The measurement, in my mind, would be somewhere in the vicinity of four to - three to four metres. And three to four metres being the status quo, or the width - the widest possible---?--- The width as wide as possible. 116 Pausing there, the primary judge at PJ [190] critically exampled this note as not assisting the evidence of Ms Hart. In doing so, with respect, his Honour plainly misunderstood it to be a note made at a meeting with the respondents. His Honour said: … To take one example, among Ms Hart's discovered notes was a file note of the meeting on 15 September 2017, during which she apparently explained certain matters to the Ripanis by reference to a three-dimensional hand drawing. This is an unsurprising aid, or technique, for an architect to use in explaining features of a two-dimensional plan to lay people. However, it is, on the other hand, worth noting that Ms Hart did not produce any such sketch in connection with what she claims to have said to the Ripanis about the opening onto the terrace and the inaccuracy of the render. Instead, she gave evidence that certain dots and marking she placed on the relevant floor plans were made in the course of explaining how the doors on the western façade would open. 117 Then at PJ [191] his Honour reasoned that this failure "is very significant". Not only did his Honour, with respect, err in understanding when the note was made and which discussion it recorded, he clearly erroneously reasoned from that premise to the effect that the ability of Ms Hart to produce a three-dimensional hand drawing during one meeting with the respondents, counted against acceptance of her evidence as to what was said at the meeting on 9 June 2017 where no such drawing was made by her by way of illustration of the doorway opening to the western façade. 118 Ms Hart also gave evidence that at the meeting on 15 September 2017 she made handwritten annotations on a paper copy of the Option E floor plan which is printed with the revision date 16 June 2017: 119 Ms Hart was questioned about the handwritten annotations on this plan which, though difficult to read at the scale reproduced in this judgment, are legible on the A3 print copy. Ms Hart said that the majority of the notes in red were written by her. She was able to say with confidence that her notations on this document were made on 15 September 2017 during her meeting with Mr Hu because she recorded that date on the top right hand corner of the plan. When questioned more closely as to the provenance of this document, she stated that it was brought to the meeting by Mr Hu who told her that the blue annotations "were formed through his discussions" with the respondents. One note in blue at the point of the sliding doors opposite the fireplace clearly reads: "sliding doors to be opened as much as possible." 120 On 21 September 2017, Ms Hart emailed Mr Hu, noted her intention to meet with the respondents the following day and summarised a large number of the matters that she had discussed with Mr Hu on 15 September 2017. Her list divides items to be provided at the cost of the purchaser from the "standard inclusions". Under the heading "additional notes", she records that the ceiling heights in the living areas were to be the maximum achievable height, possibly 2700mm and next follows the note "sliding doors to terrace to be maximum opening width possible". 121 Ms Hart next gave evidence of her meeting with the respondents on 22 September 2017. They discussed a fixtures and fittings schedule and Ms Hart made handwritten notes of that meeting on a document described as a purchaser upgrade spreadsheet. The note records the purchaser request to "maximise clear opening to balcony". That document evolved over time, but consistently maintained the note that for windows to the living/dining/bar area: "powder coated aluminium framed sliding door opening to balconies and terraces. Purchaser request: maximise clear opening to balcony". 122 It is important to understand that the evidence of Ms Hart as to what she discussed in detail with the respondents on 9 June 2017 by reference to the Option C floor plan emerged at a relatively late point in the proceeding. A procedural direction was made for the filing and service of witness outlines. In a document dated 23 October 2020, it was said that Ms Hart would give evidence "to the following effect". The document then sequentially dealt with background matters, the development of the floor plan for apartment 1401, the relevant email exchanges between Ms Hart and the respondents and the briefest of explanations was offered as to the content of each of the floor plans. Although that document referenced the fact that there were meetings on 26 May and 9 June 2017, the content of the discussion at those meetings was not identified. On 20 November 2020, there was filed and served a brief reply witness outline of evidence to be given by Ms Hart. In response to outlines of evidence for the respondents, to the effect that it was not until June or July 2018 that Rothelowman revealed "for the first time" that the western façade could not be constructed as represented in the render the reply paragraph of Ms Hart provided: Ms Hart recalls discussing with the Ripanis their desire to maximise ceiling heights. Ms Hart recalls saying words to the effect that RotheLowman would try to maintain the maximum ceiling height where they could. It was not revealed to the Ripanis for the first time in June 2018 that there would be more than one doorway or opening from the interior to the exterior of apartment 1401. As set out above, the Option E floor plan showed several openings from the interior to the exterior. 123 That the respondents were clearly told by Ms Hart that the opening on the western façade as depicted on the render could not be achieved was not the subject of a specific pleading in the defence of the appellant. Nor was this fact mentioned in the opening address made by senior counsel for the appellant at the trial. And it was not a matter that was distinctly and clearly put to Mr or Mrs Ripani in cross-examination by reference to the annotated floor plans, though it was generally put in the following series of questions. In the evidence of Mrs Ripani, the exchange was as follows (from T 370): …during the meetings with Kate Hart - the ones on 7 April and there was one just before you left to go overseas in June and there were meetings in between those times, these are meetings at which you say you brought your brochure to them. During those meetings, the evidence of Ms Hart will be that during more than one of those meetings she, by reference to the printed A3 plans, indicated to you where on the plan the doors would be located between the interior and the exterior. What do you say to that?--- No, she did not. And the evidence of Ms Hart will be that she pointed out with reference to the printed A3 plans that she brought to meetings with you in April, May and June that there were three openings between the interior and the - I'm talking now not about the dining room but about the area that runs between the pool terrace and the interior on the left of the picture. Her evidence will be that she showed you that there were three openings between the living area and the pool terrace. What do you say to that?--- That's not correct. And if Ms - if she had ever pointed that out, this floor plan would never have been satisfactory. And the evidence of Ms Hart will be that the change between the plan on 1140, which doesn't show a stacking system, and the plan on 1915, which does show that stacking system, was - well, will be that the door system needed to work in a way that sliding doors did not smack into each other, rather they opened away from each other. And her evidence will be that that's why the two stacking door systems were used and shown on the option the plan. What you say to that?--- She did not say that. … Ms Hart's evidence will be that while she did not say to you that the doors between the interior and the exterior were of a particular metreage, width, she did say - she did point out to you, with reference to the A3 printed plans showing Option - showing the various options of the apartment - where the multiple openings between the interior and the exterior were. What you say to that?--- No, she did not. And she will also say that in her discussions with you she would describe the opening - the glass opening areas between the interior and the exterior by reference to numbers of panes of glass. What you say to that?--- I would be very surprised if she said that. So, Mrs the Ripanis, I put to you that you did - that it was explained to you by Ms Hart that there were three openings between the interior and the exterior, running along the left of the building façade, before you said you were satisfied with the floor plan. What you say to that?--- That's totally incorrect. 124 At that point, the cross-examination of Mrs Ripani concluded. Mr Ripani in evidence in chief (T 396) and in answer to the leading question as to whether there was any discussion during the June 2017 meeting about the "type of opening between the interior and the terrace exterior" answered: "No, there was not". Later he was cross-examined as follows, having first established that (to his then observation) the approved Option E floor plan depicts more than one opening between the interior and the exterior (from T 453): And you weren't obliged to pay - or you weren't obliged to be in a binding contract until you are satisfied with the floor plan; that's right, isn't it?--- That's correct, Ms Costello. And this was the final floor plan that you are satisfied with, wasn't it?--- Yes, it was. Yes. I suggest to you, Mr Ripani, that when you are satisfied with the floor plan in June 2016 - June 2017 you were at that time aware that there was more than one opening between the interior and exterior near the pool?--- I disagree. … Ms Hart's evidence will be that she explained the door changes on the floor plans that I've taken you to today to you during her meetings with you in May and June 2017?--- She did not, Ms Costello. His Honour: Ms Costello, could you just be specific about what Ms Hart's evidence will be concerning the changes - in particular, what she will say were the nature of the changes. Ms Costello: Ms Hart's evidence will be that she discussed with you moving one of the openings to be centred near the fireplace; what do you say to that?--- No, she did not. Ms Hart's evidence will be that she told you about how the sets of sliding doors opened - that being doors, plural - between the interior and exterior; what do you say to that?--- The doors were never discussed, Ms Costello. And Ms Hart will say that she, by reference to printed A3 plans, showed you on the plan with the doors were; what do you say to that?--- She did not, Ms Costello. 125 Thus, although the specific evidence that Ms Hart gave as to what was discussed with the respondents in May and June 2017 was not detailed in either outline of her intended evidence, the substance of her evidence was at least fairly put to the respondents in cross-examination. As might be expected, these matters were the subject of an extensive cross-examination of Ms Hart by senior counsel for the respondents. Ms Hart was questioned as to her recent location of the folder of annotated plans for apartment 1401, but her account was not undermined. She confirmed that she did not have any contemporaneous notes "about what passed between you and the Ripanis" at any of the meetings in May or June 2017. She was asked why there was any reason for not keeping notes of meetings to which she replied (T 565): … ---The notation that I have for within the meetings with the Ripanis is notation as to their requests for the bespoke nature of the internal fit-out of their apartment. I don't have my written notes in relation to the door openings and widths of openings, apart from what isn't shown on the marketing plans. 126 When pressed further as to why she did not keep more detailed notes of her meetings she answered "I don't know" and when invited to explain why, stated that she did not have an explanation. Ms Hart confirmed that she was aware that the render was misleading during each of her meetings with the respondents. Counsel then turned to the meeting of 26 May 2017 (from T 568): You don't have any recollection of how if the topic of separation came up, how it came up from any of the things that you were there to discuss?--- No. If you had had that discussion with the Ripanis you would have been well aware that you were dealing with dynamite, wouldn't you?--- Yes. And if you are having that discussion with the Ripanis knowing what you clearly did know about the misleading nature of the render of this apartment---?--- Yes. --- You would have made a note?--- No. What possible reason could you have, Ms Hart, for not making a note of that discussion with the Ripanis?--- Because I know that it - I know the - that - I - I know that there's the nature of the separation between - for that façade and was not willing to put it down in writing. I beg your pardon? You were not willing to put down in writing what you knew about the difference between---?--- The - the --- --- The render and the actual conduct of the façade?--- And - and the actual façade. Why were you not prepared to put that down in writing?--- I - I discussed it. I sent a--- No, no, Ms Hart?--- But I - but--- Why were you not prepared to put that down in writing?--- Because it was a - a - from my understanding, a delicate issue between the developer and the - and the renders. Do I understand from that answer that you understood that the respondent did not want you telling people about the difference between the renders and what they were going to get?--- It was my understanding. His Honour: No, Ms Hart, perhaps the question needs to be reformulated, but what you're being asked is whether you were told by anyone that the developer - the respondent did not want you to raise the subject matter?--- I wasn't told to directly, no. Mr Stuckey: What caused you to form that belief if you were not told it directly?--- The fact that we had identified the issue to the developer early on in relation to receiving the white cards and the early renders that were provided, but there was no - no movement of course to actually produce those marketing renders and to market them as such. … Now, Ms Hart, can I just explore the explanation you've given. Regardless of whether work was well-founded or not, your belief in May 2017 was that the respondent did not want you to tell customers - particularly, presumably the Ripanis - about the inaccurate nature of the render?--- Yes. And the reason you were not prepared to make an internal note in your file at Rothelowman was because if you did tell somebody about the truth there might be some consequences for yourself?--- Yes. So you say you told the Ripanis the truth?--- Yes. Regardless of the consequences for yourself?--- Yes. But without taking a note of it?--- Yes. I suggest to you the reason behind that is so that if somebody asked you subsequently whether you had told the truth you could deny it?--- No. What other reason is there for not making a note of telling them the truth?--- I didn't see there being a - because I - I knew the truth. So there was no necessity for me to - that was my thinking at the time - was for me to document that. So I - so I - I do have notes to say when describing to the Ripanis their ceiling height; I do have notation of that. I do have notation of emailing them the section through the building to show them the hobb and the ceiling heights within the building. So I do have that as written evidence. Yes?--- But in describing those conversations, I didn't take notes at the time of what I was describing and speaking to the Ripanis about. As I understand your evidence, that was quite deliberate?--- At - at the - at the time, yes. And that was so there would be no written record of what you had told them?--- Yes. And that would be - the only reason for that, I suggest to you, would be if somebody tasked you afterwards with the fact that you had told them the truth you could deny it?--- I - well, I - I - no. What other reason could there be for telling them the truth and deliberately not making a note of it? What other reason is there?--- I - I don't know. But when being asked if I told them the truth, I can say yes. But you can't remember when?--- No. 127 Ms Hart then gave evidence to the effect that she had discussed the location and size of the openings of the doors with the respondents prior to May 2017, but was unable to say when. She confirmed her understanding that by mid-June 2017, the respondents must have clearly understood that the opening as depicted in the render would not be constructed for the reason that she had explained to them that the image shown in the render was "impossible" to construct. She confirmed that she stated this to the respondents in either May or early June 2017. She also confirmed her understanding that the effect of her evidence was that the respondents would not be able to claim that they relied upon the render and that her evidence would provide a defence open to be relied upon by the appellant. When questioned further, she stated that she had informed Mr Hu of the substance of her discussions with the respondents. She was taken to each outline statement of her intended evidence, confirmed that neither made specific reference to a discussion with the respondents in June 2017, but insisted that she had given this information to the lawyers for the appellant prior to the preparation of each outline. She was next taken to the statements made by the respondents in each of their outline of evidence documents to the effect that it was not until June 2018 that they were first advised that there would be one or more doorways constructed at the relevant point on the western façade. She acknowledged that even though, in her view, that statement was incorrect, it was not directly rebutted in her reply witness outline. When challenged as to why, on her evidence, the question of the width of the door openings was discussed in May and June 2017, she denied that it was "very unusual to have exactly the same conversation at two separate meetings". She denied that her evidence was a reconstruction, based on her examination of the contemporaneous documents. When pressed as to "what possible explanation" there could be for having had two discussions to the same effect with the respondents she answered (from T 599): … ---It came up in discussion. How did it come up in discussion? You went there to talk about fixtures and fittings?--- Not just fixtures and fittings. We were discussing the apartment, the apartment planning and the - the traversing between the interior and the exterior. It was part of the discussion. But the fact that these mullions are a metre wide - that's just a fact, isn't it?--- Yes. They're roughly around a metre wide. Yes, and you told them that?--- Yes. So why would you need to tell them again?--- Because it came up in discussion - in our conversation. How did it come up in conversation?--- I don't recall. 128 Next followed a series of questions to the effect that Ms Hart had told the respondents at the May 2017 meeting that there would be three openings in the western façade. When directly asked why she told them "exactly the same thing" at the subsequent meeting she answered "I don't know". 129 It was not directly put to Ms Hart in cross-examination that her evidence as to what was discussed in the meeting with the respondents on 9 June 2017 was false, nor that her annotated Option C plan was not a genuine document that was discussed at the meeting. Rather, the cross-examination focused upon why Ms Hart did not confirm her advice in writing; the fact that her outline of witness statements did not mention the advice conveyed at the meeting; the apparent improbability of providing the same advice more than once; and the silence of the witness, in the face of later claims by the respondents that they were misled. Put at its highest, counsel challenged Ms Hart's evidence on the basis that it was a reconstruction, which she denied. The cross-examination as to these matters was a little disjointed for the reason that it commenced on 19 February 2021 and did not resume until 24 March 2021, which was the next available hearing date. Relevantly, I set out the following evidence as to these matters (from T 570): As at the time you say you told the Ripanis the truth in May of - well, May or thereabouts, maybe - maybe it was June - 2017 your expectation must have been that they would go off like a rocket when they found out they were not going to get the remarkable-looking open terrace?--- No. You did not expect that?--- No, based on our previous conversations. Now, what conversations are you saying you had had prior to telling them the truth about the terrace?--- The conversations about the location and the size of the openings of the doors between the interior and the exterior. All right. Now, I've taken you through with some care - there was no discussion at your first meeting on 7 April, that you can recall, or even if it was on the 6th , as you've noted. You've given them the plans on the 26th, and they've responded, and you've given them further plans on 8 May, and there has been a meeting arranged and it has happened on 26 May. Now, are you saying by 26 May you had had conversations with them explaining the location of the doorways?--- Yes, I believe so. Yes. Right. When was that meeting?--- I can't recall off the top of my head when that meeting was. Did you have any reason for not keeping any notes of that meeting?--- No. … Your evidence is that by mid-June 2017 the Ripanis must have clearly understood that they were not getting a large opening?--- Yes. And your evidence is that you told them they were getting much smaller openings and you had shown them where they were?--- Yes. Do you agree with me that you never mentioned that in writing to them at any time - that they were getting doorways in particular locations?--- Yes. You never mentioned it to them in writing at any time that you had made it clear to them that the render image was impossible?--- Yes. Even when they wrote to you subsequently and said, "Here is the render image that we were told we would get," you did not write back to them and say, "I told you you're not getting it"?--- I did not write back to them. … In your evidence you've said you recalled the Ripanis saying that they wanted a large opening?--- Yes. They wanted to have a connection between the interior and the exterior, and that was why they had been drawn to that particular development?--- Yes. There's no doubt that that's what they wanted?--- Yes. You say when you told them the truth that that was just impossible---?--- Yes. --- They were disappointed?--- Yes. All right. Do you say you had told them it was impossible to have any wider opening than you had provided for?--- Yes. And do you say you told them that in May or early June of 2017?--- Yes And I think you've said in evidence-in-chief that you regard the main opening in the middle as being in the order of up to three to four metres wide?--- Yes. 130 Shortly thereafter, the trial was adjourned. Ms Hart returned to the witness box on 24 March 2021, and in the first series of questions affirmed the evidence that she had given in chief. She confirmed that she did not wish to alter any of that evidence. She accepted that there were "three central things" that were communicated during the meeting with the respondents on 9 June 2017: that she told the respondents there would be a wall with doors in it; they in turn requested that the opening be maximised and in response Ms Hart stated that the maximum opening that could be achieved would be in the order of 3m to 4m. Ms Hart agreed that these three items were not referenced in either of her witness outlines. She said that she had advised the appellant's lawyers of this conversation before her witness outlines were prepared. Her explanation was that she failed to notice these omissions "at the time". Her attention was then drawn to a paragraph in her reply witness outline which stated in part: It was not revealed to the Ripanis for the first time in June 2018 that there would be more than one doorway or opening from the interior to the exterior of apartment 1401. As set out above, the Option E floor plan showed several openings from the interior to the exterior. 131 The cross-examination continued (from T 588): So you're saying they are wrong about that?--- Yes. But you do not - the statement does [not] make any reference, then, to a conversation with them, does it?--- No. It just says: The option for the floorplan (sic) showed several openings from the interior to the exterior. ?--- Yes. You accept that is a very different thing from telling them expressly, "There will be a wall with a series of little openings in it. The maximum opening you can have is three to four metres, and your expressed desire to have a wider opening is just not possible." That is a very different thing, isn't it?--- No. It's not in your mind. All right. So you had - did you have discussions with the respondent's lawyers about the conversations you had with the Ripanis again at the time you settled this reply which, for your assistance, is dated 20 November 2020?--- Yes. 132 Later, the cross-examiner returned to the topic of why Ms Hart apparently had two discussions to the same effect with the respondents, one in May and the other in June 2017 which evidence I have set out above. 133 It is pertinent to observe that, on one view of it, this cross-examination simply reinforced the evidence given by Ms Hart in chief as to what she told the respondents and when she told them. The fact that there was a discussion on the same topic, more than once and in successive meetings, is not improbable once it is understood that the respondents spent a considerable amount of time in reviewing, requiring amendments to be made to and ultimately approving the detail of the floor plan for their apartment. Apart from directly putting the proposition that her evidence was a reconstruction, it was not put to Ms Hart that her evidence was fabricated. Nor was there any interrogation as to the detail of the annotations that she said she contemporaneously made on the hard copy of the Option C plan during the meeting on 9 June 2017. 134 Counsel then moved to the email dated 23 June 2017, sent by Ms Hart to Mr Hu and copied to others representatives of the appellant and the design architect which I have set out above and in which Ms Hart said it was "extremely important" purchasers be made aware of the opening that can be achieved. 135 The cross-examination then continued (from T 609): And you sent that to him because you were very aware of the fact that people were likely to be misled by the marketing renders?--- Yes. And I suggest to you the reason you wrote that to him at that time is because you realised that it was very likely that the Ripanis were in fact being misled by the marketing renders?--- Yes. 136 The witness was then taken to the proposed construction drawings, which depict two relevant openings and confirmed that those drawings were "[n]othing like what you depicted in Option E". Further, she confirmed that it was not at least until June 2019 that she sent Option E to the design team for incorporation with the construction drawings. She also confirmed that construction had proceeded, at least until June 2019, without "any attempt" to incorporate Option E. 137 On 9 October 2018, Mr Hu emailed the respondents and advised them that the opening would be a maximum of 6.4m. Later, on 3 June 2019, they received written advice that the maximum achievable opening was 3.4m. On 13 June 2019, the respondents sent an email to Ms Hart. It reads: Hi Kate… Haven't heard back from you regarding a meeting for our apartment.. To be honest, we are very concerned with this situation. We purchased a very high end apartment with nearly a 10M price tag. An apartment with a huge outdoor space which is what sold us in the first place. We were given a brochure and shown what our apartment would look like.. this is the reason we committed to this project. However, we feel that we have been misled and we keep having to compromise on what we were promised. Firstly we couldn't get a straight answer as to the ceiling heights. The heights are not what we were shown and especially in the wet areas, they are really low… not what you would expect in an apartment of this calibre.. Anyway, reluctantly we moved on as long as the ceiling height did not drop in the living areas in any spots and that the ceilings would be pushed to the optimum heights. Now we have the issue of the doors to the balcony which we chased for ages to get clarification. If you refer to the image we were given, the doors open basically the whole way in the living area and there is no step down to the balcony. We finally got clarification that the opening would be 6.4 metres.. this is not what the drawing showed but we again compromised to what we thought was still a decent opening and one we could live with… Now we have gone from 6.4 to 3.4… an opening in our opinion which is totally unacceptable for us… this is a compromise we will not make.. that opening between the inside and outside areas is why we committed to this apartment.. it is the only reason. On top of that we were never told that we would have to step down onto the balcony… that totally changes the aesthetics of what we want. We understand that things change during designing and building but this is nothing like what we were promised. With all due respect, this building was designed by architects and I am sure things like wind and rain would have been taken into consideration. To be clear from our point of view, we want to achieve the look that we were sold, if that is not possible then we cannot go ahead with this. We are hoping that between all parties, this can be worked out. There must be a solution to achieve the results that we want.. after all it's what we bought and it's what we expect to be delivered. We def didn't pay 10M to have a 3 metre opening to a balcony that we have to step down on to.. Please let us know where we go from here… 138 To that email, Ms Hart responded on the same day as follows: Hello Nina, I completely understand your frustration and concerns. We are meeting with the JD group and the builder to address the points you've raised for clarification and resolution. We would like to arrange a meeting with you and Walter at our office next Wednesday to discuss the apartment with us, JD group and the builder, Hickory group. Please let me know if Wednesday suits you and what time. Kind regards, Kate 139 Cross-examining counsel directly put to Ms Hart that upon reading that email, she must have thought that it contained several inaccurate statements by the respondents in the following series of questions (from T 666): …Mrs Ripani should have known, if your evidence is correct, that you would realise that that was inaccurate?--- Yes. Because she was putting to you a state of affairs that was not true---?--- Yes. --- and that you would know was not true?--- Yes. And you would both know that that was not true?--- Yes. Yes. So that would be quite an insulting and offensive thing to do, wouldn't it?--- Yes. Do you recall what your response was?--- No. 140 Counsel then directed her attention to the response and continued: That is not the response, I suggest to you, of somebody who had just been - had a false state of affairs put to them by a client or a customer?--- No. I disagree. I see. Why? Why are you saying you completely understand her frustration and concerns when you - on your view, you both know that they are false?--- Because I can see the render and I can see the mark - the design plan, and I know that the - the marketing render is what in their heart they wanted and not what is being able to be provided. So in that I understand their frustrations and their concerns. I see. And you don't in there, in any way, suggest that their frustrations and concerns are inappropriate or misguided, do you?--- No. You do not in that suggest in any way that you had made quite clear before they entered into the contract - or before the middle of June 2017 that there was no basis for them to expect any of those things, they would not get them?--- No. There was a meeting that was, in fact, held in late June between the developer and the builder in yourselves and the Ripanis; correct?--- Yes. … You didn't, in that meeting, tell anyone about the fact that, as you now say, you had a conversation with the Ripanis on at least two occasions when you explained to them that there would be a glass wall with doorways set in it and a maximum of a three to four-metre opening?--- I can't recall the exact conversations, but that would have come in conversation. I--- Well, let's leave aside what would have happened. You don't recall saying anything of that sort, do you?--- Yes, I do. You do?--- Yes. What did you say?--- I can't recall the exact words, but words to the effect that - pointing out where the openings were within the façade as per - the drawings of what we had been discussing. So just- so we're clear, your evidence to his Honour is---?--- Yes. --- you specifically recall that during the meeting attended by the builder, the developer and the Ripanis---?--- Yes. --- and yourself---?--- Yes. --- you said to the meeting that you had explained to the Ripanis there would be a wall with doorways in it at these particular places?--- Yes. Everyone would have heard that?--- I believe so, yes. Mr Hu was there, wasn't he?--- Yes. So he would have heard that?--- Yes. Mr De Mooy was there; he would have heard that?--- Yes. Okay. And the Ripanis would have heard that?--- Yes. 141 When Mr Hu gave evidence, he could not recall a discussion at the meeting of 9 June 2017 about the width of the proposed door openings on the western façade. He stated that at a meeting with the respondents on 15 September 2017, he had with him the Option E floor plan dated 16 June 2017. He noted on that plan a request made by the respondents that "sliding door to be opened as much as possible" on the western façade. He stated that their requirement was for "the maximum access to terrace". His attention was drawn to an estimate prepared by WT Partnership, a quantity surveying firm, which priced the opening at an estimated length of 12m. He confirmed his understanding at the meeting was that the opening would be 12m. 142 As to what Ms Hart said to Mr De Mooy (an employee of the appointed builder), her evidence was inconsistent. At one point in her cross-examination she stated that in June 2019 she informed Mr De Mooy that she had earlier explained to the respondents in 2017 that construction of the external doors as depicted in the render would not be possible. But when pressed as to the detail of what was discussed and when, she stated that she could not recall having a discussion to that effect. Moreover, when that was put to Mr De Mooy, he could not recall a discussion to that effect with Ms Hart.

Resolution of ground one 143 As I have explained, his Honour's adverse demeanour finding at PJ [215] that Ms Hart's evidence as a whole was reconstructed and unreliable is significantly related to the conclusion that she was uncertain in her evidence about the impetus for "critical" changes to the floor plans. With respect to his Honour, I have concluded that he erred in so reasoning and did so fundamentally in a way that infects his approach to, and assessment of, the evidence of Ms Hart. In my view, there are five discrete errors that can be identified in his Honour's reasoning and fact finding: (1) the Option A plan error; (2) the Option B plan error; (3) the file note of 15 September 2017 error; (4) the contemporaneous notes error; and (5) a consequential failure to examine the evidence in detail in order to make necessary findings of fact. 144 These errors, which I will explain in detail, in my view and with respect caused his Honour to commit the "false step error" of the type identified by Perram J in Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC93 at [49]. In this case, the conclusion reached by the primary judge about the demeanour of Ms Hart rests on several anterior errors with the consequence that his Honour misused the advantage that he otherwise enjoyed of seeing and hearing all of the witnesses and of receiving and reflecting on the whole of the evidence sequentially. My reasons for so concluding are as follows.

The Option A plan error 145 First, the findings at PJ [154] and [205]-[208] that Ms Hart, without reference to the respondents, changed the proposed openings in the western façade from the depiction on the Rothelowman draft plan as provided to Mr Ripani on 10 April 2017 to the configuration depicted on the Option A floor plan that was provided on 26 April 2017 is, with respect, wrong. As is the related finding at PJ [154], [159] and [208] that there was no discussion about the proposed doors in the western façade at the meeting on 7 April 2017. 146 The primary judge at PJ [206] extracted a portion of the evidence in chief of Ms Hart as to the provenance of the Option A floor plan where, following a question from his Honour, the witness was unable to accurately recall whether the changes on that plan were made in consequence of the discussions with the respondents. Having done so, his Honour reasoned at PJ [207] that Ms Hart's evidence was "self-evidently speculative" and likely reconstructed. His Honour did not advert to all of the relevant evidence as to the development of the Option A floor plan, as I have set it out. 147 Contrary to the conclusion reached by his Honour, what is clear from that evidence is that a number of amendments (or variations) were discussed at the meeting on 7 April 2017, including the seamless flow-through design requirement of the respondents. The respondents clearly expected that Ms Hart would make changes to the Rothelowman draft plan in a subsequent revision. Further, there is no basis for the factual finding made by the primary judge at PJ [208] that Ms Hart contradicted herself in producing the Option A floor plan "with arguably more distinct door openings to the western terrace" following discussions with the respondents for the reason that there was no discussion at the meeting of 7 April 2017 concerning the doors to the terrace. Contrary to that finding, there was a discussion about the client requirement for a seamless flow-through design, emphasised by continuation of the herring bone pattern of the flooring between the internal and external areas. Although Mr Ripani denied a specific discussion about the form of the proposed wall or barrier on the western façade, his expectation at the meeting was for provision of a seamless flow-through design with the doors open, based on what Ms Hart told him. An outcome of the meeting was that Ms Hart would make amendments, including to address the client requirement for a seamless flow-through design. 148 Moreover, the Rothelowman plan tabled at the meeting on 7 April 2017 clearly depicts the proposed door arrangement on the western façade as comprising two openings with doors sliding north and south at each, an arrangement that cannot be reconciled with the depiction in the render. And it is this arrangement that the respondents expressed a preference for at the meeting.

The Option B plan error 149 Secondly, his Honour was also critical of the evidence of Ms Hart in relation to the derivation of the Option B floor plan at PJ [189]. His Honour characterised this as the "superseded version" of the floor plan in that it is dated 8 May 2017, that could not therefore have been discussed at the meeting on 3 May 2017 and should not have been discussed at the meeting on 26 May 2017 for the reason that the respondents had settled upon the Option A floor plan by no later than 10 May 2017. In the evidence that I have summarised, Ms Hart explained why she made notes at the meeting on 26 May 2017 on a version of the floor plan which did not represent the preference of the respondents. The notes on that document reflect the content of matters that were discussed that day. The fact that the notes were made on a superseded version of the floor plan is hardly to the point and does not justify his Honour's adverse finding at PJ [189].

The file note of 15 September 2017 error 150 Thirdly, and in the next paragraph at PJ [190], his Honour reasoned that "even the contemporaneous hand written notes produced by Ms Hart do not assist Century Legend". He exampled Ms Hart's file note of 15 September 2017 which, as I have explained above, he erroneously understood to be a record of a discussion between her and the respondents, when in fact it records a discussion with Mr Hu, who relayed the content of his discussion earlier that day with the respondents. That wrong finding by his Honour anchors two specific criticisms that he made of the evidence of Ms Hart at PJ [190]. One, is that he discounted, and plainly gave little or no weight to, the "dots and markings" that she placed on the floor plans and the other is the criticism that her failure to produce a sketch as to what she told the respondents counted against acceptance of the evidence. Implicitly, his Honour reasoned that one would expect an architect to have produced a sketch to that effect which, with respect to his Honour, does not rise above mere speculation.

The contemporaneous notes error 151 Fourthly, and relatedly, the primary judge did not consider that the notes made by Ms Hart on the Option B, Option A/B and, most relevantly, the Option C floor plans were contemporaneous corroborating notes of her oral evidence. At PJ [188] his Honour said: The second objective factor is that there is no express reference in any contemporaneous note made by Ms Hart of the statements she claims to have made to the Ripanis. Given the context I have described, I would expect that as a matter of common professional practice, if not self-protection, that had Ms Hart said what she claims to have said, she would have been astute to have made some contemporaneous record of what she had said; and thereafter, whenever the context made it appropriate, that she would have reminded Century Legend, and the Ripanis if need be, of what she had said about the render in meetings during May and June 2017. That is all the more so given Ms Hart's evidence that she appreciated the render was a "potential timebomb" and that in due course she might find herself sitting in a witness box giving evidence about her communications with the purchasers of apartments. But Ms Hart did not make any contemporaneous note which recorded, in terms, or even alluded to, what she says she told the Ripanis. I have referred above to her correspondence that does not assert that she had already told the Ripanis apartment 14.01 could not be constructed in accordance with the render. 152 His Honour also regarded the absence of contemporaneous notes as a reason to reject the evidence of Ms Hart that, post the formation of the contract, she had earlier disabused the respondents of the impression which they formed based on the render: PJ [214]. 153 His Honour made these findings despite his acceptance at PJ [201] that at the meeting on 9 June 2017 Ms Hart annotated the Option C floor plan as her note of the matters discussed with the respondents. He then reasoned as follows at PJ [202]: These markings and annotations may be seen as consistent with a discussion about the opening and the stacking of the doors at the meeting on 9 June 2017. However, in the absence of a contemporaneous note which records in terms, or by some abbreviated reference, what Ms Hart claims to have said at that meeting, the dispute concerning what Ms Hart said to the Ripanis about the opening prior to the contract being entered into turns principally on the competing oral evidence of the Ripanis and that of Ms Hart. 154 It is difficult to understand why his Honour did not accept the notes made by Ms Hart on that plan as a contemporaneous record of the matters discussed with the respondents. The most relevant record is the notations made by Ms Hart on the Option C floor plan during the meeting of 9 June 2017. She gave evidence that her usual practice at meetings was to record "minutes" in the form of handwritten notations on plans. It was not put to her in cross-examination, and the primary judge did not find, that her notations were not genuinely made during the course of the meeting, or falsely recorded a matter that was not discussed. Whilst it is true that her notations in some respects were cryptic and, self-evidently, the notes cannot be compared with a meeting transcript or an abbreviated summary, none of that detracts from the fact that her notes were made at the meeting and contemporaneously record at least some of the matters that she discussed with the respondents. No other witness produced a note of what was said at that meeting. The reasoning of the primary judge is to the effect that he expected to be presented with a more comprehensive written record of the matters discussed, something that he regarded as "a matter of common professional practice, if not self-evident protection" at PJ [188]. However, his Honour did not receive any evidence about common architectural professional practice and that, unlike members of the legal profession, it is a matter of common experience that architects express themselves in plan form, rather than words.

The failure to examine the evidence in detail error 155 Fifthly, by reasoning in this way, his Honour eschewed a detailed interrogation of the content of the annotations made by Ms Hart on the Option C floor plan together with her oral evidence, which highlights a significant omission in his Honour's reasoning: there is simply no detailed analysis of the evidence given by Ms Hart as to what was discussed at the meeting on 9 June 2017 and no specific factual finding is made about that discussion. 156 As I have set out above, the oral evidence of Ms Hart as to what was discussed at the meeting on 9 June 2017 was clear and was not materially challenged in cross-examination. In summary, the width of the openings was discussed, the doors would stack from left to right, a door was proposed for the central area, with three openings in total on the entirety of the façade. The width of the openings would be roughly 4m. In response, the respondents made it clear that they wanted the openings to be "as large as can be", "maximised" or "as wide as possible". No one disputes that the Option C plan was put on the table in A3 format by Ms Hart at that meeting. Mr Ripani gave evidence in chief that Ms Hart is the only person who took notes at that meeting adding, unprompted: "Miss Hart always took notes" and then when asked whether he noticed anything about how she took notes answered "they were always in red and green. She wrote in red or green. She took lots of notes" (T 396). 157 The primary judge did not examine this evidence in detail and did not in consequence make a finding of fact based upon it for the reason that his Honour concluded that Ms Hart's evidence was reconstructed and unreliable (PJ [215]) due to her uncertainty about who instructed the making of changes to the Option A and B floor plans. I accept the submission of senior counsel for the appellant that the primary judge disregarded the contemporaneous record of Ms Hart and failed to grapple with the content of her evidence because he was distracted by his analysis, which, as is evident from the matters set out above, was wrong about the changes made by Ms Hart to earlier iterations of the floor plan. On that basis, I cannot accept as correct his Honour's conclusion that the evidence of Ms Hart, overall, was reconstructed and unreliable.

Further arguments of the appellant 158 In addition to the errors that I have identified, the appellant relies upon other arguments, which I conveniently address as follows.

The failure to reference anterior advice 159 The next matter argued on behalf of the appellant challenges the reasoning of the primary judge at PJ [181]-[187] which counsel describes as the "subsequent failure to refer to advice given" to the respondents. The gravamen of his Honour's reasoning is that because Ms Hart knew the render to be misleading; believed that an earlier architect had resigned from the project because of a dispute about the misleading nature of the render and, had expressly stated in her email of 23 June 2017 to the appellant that she believed it "extremely important" to make purchasers aware that the render misrepresented the internal/external transition, that therefore she should have been diligent in recording the fact that she had disabused the respondents in correspondence with the developer, or otherwise should have documented her advice more thoroughly. At PJ [187] his Honour reasoned that he would have expected Ms Hart to make "some written record" of what she claimed to have said to the respondents in response to the following: … (1) in June and July 2018, when the Ripanis pressed Century Legend and RotheLowman for information about the width of the door opening and expressed their desire to know "what is happening with the sliding doors opening out to the balcony"; (2) in May 2019, when the Ripanis met with Ms Hart and Ms Meng and specifically asked whether there was scope to make the door opening onto the terrace wider than 6.4 metres; and (3) in June and July 2019, when the Ripanis said "…Now we have the issue of the doors to the balcony, which we chased for ages to get clarification. If you refer to the image we were given, the doors open basically the whole way in the living area and there is no step down to the balcony…Now we have gone from 6.4 to 3.4 … an opening in our opinion which is totally unacceptable for us". 160 Those matters reflected criticisms made by counsel for the respondents in his cross- examination of Ms Hart and reiterated in closing submissions. Viewed in isolation, they are of some objective force. Logically if Ms Hart had informed the respondents of the true position in May and June 2017, one would ordinarily expect her to have disabused them of any subsequent claim to the contrary at meetings that Ms Hart attended which occurred on 22 September 2017, 2 February and 22 June 2018, before the respondents made specific complaint in the email of 13 June 2019. No witness gave evidence to the effect that there was a discussion about the opening width at the meeting on 22 September 2017, a fact confirmed by the hand written note that Ms Hart made of that meeting. Rather, the conversation was about the internal fixtures and fittings for the apartment. 161 Similarly, no witness gave evidence about a conversation relating to the width of the door openings at the meeting on 2 February 2018. As to what was discussed on 22 June 2018, the content was summarised in an email that Ms Hart sent to the respondents and others at 5.15 pm that day. It is concerned entirely with the proposed ceiling height, then estimated at 2.7m graduating to 2.5m at the lowest point being the position of the doors on the western façade. 162 Which brings me to the most relevant meeting between the respondents, Ms Hart, Ms Meng of Rothelowman, Mr Lu of Century Legend and Mr De Mooy on 20 June 2019 and the subsequent correspondence. At that meeting there is no doubt that the respondents firmly expressed their frustration that the proposed width of the door opening at the widest point opposite the fireplace would be approximately 3.4m. As recalled by Mrs Ripani in her evidence in chief when recounting her husband's words (from T 271): …No one ever pointed out to us, not only that it couldn't be done or that it may not be able to be done, we never - well, Walter asked - you know, said to them that we never were told any of that. So we wanted to know, well, we got from this picture to what was being proposed to us now. 163 Mrs Ripani then explained that her reference to "the picture" was to the render. She recalled that Mr De Mooy stated that it was "impossible to achieve what was pictured" and that he explained why by reference to wind factors and stress loadings. Her evidence continued (from T 272): Was there any further discussion about why this was being - or why this was coming up at this point? Walter asked why - why were you were only being told this now. And he - he wasn't really sure. He was actually a bit surprised that we… Well, that's a conclusion?--- Yes, yes. What was said that major described him as "a bit surprised"?--- Well, he actually pushed the brochure towards Shawn and said to him, "why would you put this in the brochure if this can't be built?" Because we were also - he also told us that the three-door stacker system that was pictured could not be used in a high-rise situation. 164 Mrs Ripani gave further evidence to the effect that Mr Lu did not respond and that Mr Ripani made it clear that he and Mrs Ripani would not "go forward" with an opening limited to a maximum width of 3.4m. She did not give any evidence as to what (if anything) was said by Ms Hart at that meeting, apart from evidence in re-examination to the effect that Ms Hart did not make any reference to having provided any earlier explanation in 2017, during the meetings of May or June 2019. 165 Mr Ripani, was unable to give detailed evidence as to what was discussed at the meeting, beyond expression of his and his wife's displeasure and disappointment as to the intended width of the opening, in contrast to the impression conveyed by the render. He recalled that he took to the meeting a promotional booklet which contained the render, that he showed it to those present and stated that the image conveyed what he and Mrs Ripani "believed we were getting" and then he questioned why the opening would be limited to 3.4 m. He recalled that Mr De Mooy said to Mr Lu words to the effect that the door system depicted in the render should not have been used for the reason that it is inapplicable to high-rise apartments. He further recalled Mr De Mooy's advice that the system depicted in the render "was absolutely unachievable" for a number of engineering reasons but mainly due to wind and rain. He made it plain to all of those present that a 3.4m opening was "a deal-breaker for us". When asked whether anyone at the meeting responded to that he said "not really". He was not asked about statements made by Ms Hart at the meeting. 166 Despite Ms Hart's involvement in the development project having ceased shortly prior to the meeting of 20 June 2019, she attended it. She did not give evidence that she disabused the respondents of their claimed lack of knowledge of the door opening size by reference to her meetings with them in May and June 2017. Why she did not do so was explored in cross-examination, though I commence with questions posed by the primary judge (from T 654): His Honour: … Did you say at the meeting in May - 24 May, I think it was, 2019 - or the 23rd - one of those meetings - words to the effect, "I have been over this issue previously," as you've given evidence, Ms Hart, that there were two meetings, I think in 2017: one somewhere after 8 May and one on 9 June. Now, as I understand your evidence, that issue was canvassed---?--- Yes. --- By you with them then?--- Yes. Did you say at the meeting some two years later, "I have been through this with you previously"?--- Words to that effect, yes. Yes. What did they say in response?--- They were extremely disappointed and wanted to press for a larger opening. Mr Stuckey: If your evidence as to what you said to them in 2017 is accepted, Ms Hart, they were now telling you that they still expected to get what you had told them then they could not have?--- Yes. Yes. And if your evidence is accepted, they were denying that you had never communicated that to them?--- Yes. So from your perspective, they would be, it would appear, lying to your face about the effect of the conversation you had had two years before?--- Yes. Because you had two conversations in which you had told them that they could not have anything that looked like the render?--- Yes. And, now, two years later, they are saying to you that they expected to get what was in the render?--- Yes. And that's in circumstances where you would know what you had told them?--- Yes. And they would know what you had told them?--- Yes. And they would know that you knew what they had told - what you had told them?--- Yes. Do you agree with me that would be a fairly affronting thing for them to do to your face?--- Yes. Because that would be quite insulting, to effectively lie to somebody's face and dare them to contradict you?--- Yes. Did you say words in that meeting to the effect that, "You are falsely representing what I told you"?--- No. Did you say to them to the effect that, "You are falsely denying what I told you"?--- No. Did you say to them words to the effect that, "You know the truth, because I told you it two years ago, on at least two occasions"?--- No. Did you say anything to them to suggest that their professed expectation that they would still get an apartment that looked like the render was wilful?--- Wilful? Let me make it clearer: was being dishonest?--- No. Did you say that they couldn't possibly have that expectation after what you had told them?--- No. Did you make a note of the fact that they were making an allegation that you had previously given them information that made - impossible to hold?--- No. You certainly didn't write back to them and say, "Look, I explained this carefully to you on no less than two occasions previously"?--- No. "You are only going to get a wall with doorways in it". You didn't send that email, did you?--- No. Was there any particular reason Julia Meng handled this enquiry after the initial meeting, rather than yourself?--- I was moving on to another project, and Julia Meng was taking this project on. 167 On 2 July 2019, Mr De Mooy emailed the meeting attendees and advised that the builder was investigating an alternative sliding door option to achieve a minimum opening width of 6m. Mrs Ripani replied: Appreciate your email but really not sure what to make of it. At the meeting, you guys were adamant that this was in no way achievable. As discussed, you saw what we expected to achieve with the money we were paying. We have spent a lot of time on this and money so far and to be totally honest, we don't want this to drag on any longer. Either we can achieve an opening as pictured all we can't. It has gone on for far too long. We either need to move forward or it's time to cut our losses and move on. We need closure either way and we are not willing to sit here and wait for an outcome that may not come. After our meeting, I would be very surprised if you could come up with a suitable outcome. You said yourself it was impossible. Please confirm one way or another. Thank you for your understanding. 168 Mr De Mooy responded by email on 3 July 2019 and confirmed that compliance with AS 4284 (a standard for the testing of building façades) could not be achieved with openings greater than 3.4m absent specific engineer and building surveyor variation approval. Later that day, Mrs Ripani responded and questioned whether achievement of that which is pictured in the render was possible. The response from Mr De Mooy was that it would be "impossible". 169 I should add that Mr De Mooy in evidence in chief when questioned about this meeting had very little recall of the content of the discussion, apart from the fact that the respondents complained that they would not receive the opening width that they believed was represented to them. 170 It is understandable why Ms Hart did not respond to the correspondence sent after the meeting of 20 June 2019, for the reason that she had ceased to be involved in the project and her role and responsibility had been handed to Ms Meng, which likely explains why the primary judge did not make a finding adverse to Ms Hart on that account. What he did find at PJ [188] is that the failure of Ms Hart to make any express reference in any contemporaneous note of her claimed discussions with the respondents was an objective factor which counted against the "likelihood" of her evidence being accepted as accurate: PJ [181]. That finding, in part, was relied upon by the primary judge to support his conclusion at PJ [191] that Ms Hart's multiple failings to make contemporaneous notes or engage in correspondence was "very significant" in his decision to reject her evidence. As I have explained, in part a flawed process of reasoning led his Honour to that conclusion.

Ms Hart's plausible explanation 171 In contrast, this reasoning sits uncomfortably with his Honour's acceptance that there is "a relevant and plausible motivation" which emerges from Ms Hart's failure to make contemporaneous notes or engage in correspondence which his Honour explained at PJ [194]: …As Ms Hart said in her email of 23 June 2017, it was Century Legend's responsibility to inform purchasers, here the Ripanis, that the render did not accurately reflect what was to be constructed. For Ms Hart to have then taken it upon herself to disabuse the Ripanis of the impression created by the render would, on her own assessment of who was responsible for correcting the impression, have been to intrude on the commercial relationship between her client, Century Legend, and its purchasers, the Ripanis. Ms Hart's email dated 23 June 2017 suggests to the contrary that she was respectful of the commercial relationship between Century Legend and the Ripanis, though she did urge that Century Legend correct the impression created by the render. It therefore seems unlikely to me that Ms Hart would say something to the Ripanis which objectively carried the risk that it may have caused the Ripanis to not proceed with the purchase. This inference is fortified by the fact that Mr Perkins also told Century Legend that it should be transparent with potential purchasers. 172 The primary judge did not reconcile how that matter was balanced in his overall assessment to reject the critical evidence of Ms Hart. In my view, that was an error. And with respect, there were further errors in this part of his Honour's analysis. There was no relevant discussion about the door opening width at the meetings on 2 February or 26 June 2018. As to the meeting of 20 June 2019, his Honour was faced with conflicting evidence that he did not reference and did not resolve by the making of a finding of fact. Ms Hart's evidence in answer to a specific question from the primary judge was that she did canvass her earlier advice at the meeting. Although it is true that she did not robustly rebuke the respondents in the terms put to her by cross-examining counsel, that is not to the point. On the question whether Ms Hart's evidence should be accepted, the primary judge reasoned that her failure to make a contemporaneous note and to disabuse the respondents counted significantly against acceptance of her evidence as to what was said at the meetings in May and June 2017. This is despite the fact that his Honour accepted as "relevant and plausible" the motivation for Ms Hart not doing so.

The late introduction of Ms Hart's evidence 173 The fourth matter argued is that the primary judge erred in his assessment of and conclusion upon the third objective factor at PJ [195]-[196]: that the late introduction of the evidence from Ms Hart as to what was said in the meetings held in May and June 2017, suggested that it was the result of recent invention or reconstruction. The error pressed is that his Honour "did not engage with Ms Hart's evidence that due to COVID-19 work from home orders she was only able to print out and review the relevant floor plans in early 2021, rather than in 2020". 174 His Honour mentions the substance of that explanation given by Ms Hart at PJ [196]-[197]. But he makes no finding as to whether he accepts that evidence as satisfactory or not as an in part explanation for the omission to reference evidence as to what was discussed at the meetings in May and June 2017 in the outline witness statements or to make mention of that evidence in the opening address made by counsel for the appellant. Ms Hart's evidence, which was not undermined in cross-examination, was to the effect that approximately two weeks prior to giving her evidence (on 19 February 2021) she attended the offices of Rothelowman (which the lockdown restrictions imposed in response to the COVID-19 pandemic had prevented) and there located her original hard copy file for apartment 1401. That file had been handed to Ms Meng in June 2019 when Ms Hart ceased to be responsible for the development. Within the folder Ms Hart located the A3 floor plan option drawings, on which she had made handwritten notes during meetings in 2017. In re-examination she explained the significance of locating her original documentation (from T 681): The Witness: Thank you. The clarity of the - being able to see things - the clarity and actually being able to see things on the printed page as an A3 document in front of you in being able to see the clarity of the line work. Also just - I think just maybe even the physicality of looking at a plan on paper triggered the memories of the sequence of events of how these plans came to be. Ms Costello: Okay. And what memory was triggered?--- The conversations that we had in relation to locations of bedrooms and bathrooms and sizes of kitchens, and the conversations that were had between the connection between the internal and the external - between the location of where the doors were going to be along the facade, where fireplaces were to be. Those sorts of conversations were triggered by looking at the plan in its physical form. 175 Whilst the primary judge accepted Ms Hart's explanation for "the late discovery of the floor plans" (PJ [196]), he did not reconcile that evidence with his application of the third objective factor at PJ [195]: "the lateness of the revelation of the highly material change in the evidence she was to give" which is a matter that he took into account in his conclusion to reject her evidence. Viewed in isolation, acceptance of that evidence cannot be reconciled with his Honour's reasoning. 176 However, there was other evidence relevant to the late discovery reasoning which is supportive of his Honour's conclusion. First, Ms Hart was cross-examined about the content of her witness outline dated 23 October 2020. That document is in very general form and comprises only two pages. There is a reference to the fact that Ms Hart met with the respondents on four occasions in 2017 including 9 June. The outline did not set out what was discussed at any of those meetings. Ms Hart accepted that she was shown this outline in draft form before it was filed. She confirmed that she read through it and noticed that it did not reference the fact that a discussion had occurred in June 2017 about the width of the openings in the western façade and that she had made it clear then that the maximum width would be between 3m and 4m. She said that she did not notice that omission at the time. When questioned further, she accepted that she advised the lawyers for the appellant "at the time" of the preparation of the outline that a discussion to that effect had occurred. She was next taken to a reply witness outline prepared for her dated 20 November 2020, also of two pages. That document is framed as a response to certain statements set out in the outline evidence of the respondents. At paragraph [4] of that document there appears the sentences: "It was not revealed to the Ripanis for the first time in June 2018 that there would be more than one doorway or opening from the interior to the exterior of apartment 1401. As set out above, the Option E floor plan showed several openings from the interior to the exterior". When questioned as to that, Ms Hart accepted that there was no direct reference to the terms of the relevant discussions that she had with the respondents in May and June 2017. When further pressed on that topic she stated that she did not accept the proposition that the quoted sentence in her outline was a "different thing" from expressly telling the respondents that the opening would be limited to a width of between 3m and 4m. 177 Ms Hart was then asked a series of questions as to whether she had discussed her intended evidence in November 2020 with lawyers acting for the appellant, including its counsel. Unfortunately, the flow of the evidence was interrupted by some objections, Ms Hart was requested to leave the witness box and upon returning to it the focus of the questions turned to whether there were meetings between Ms Hart and the appellant's lawyers between 5 and 8 February 2021. Ms Hart exhibited some difficulty in recalling when and how many occasions she met with the appellant's lawyers, although in answer to one direct question she confirmed that there was a meeting in November 2020 and then probably another one in January or February 2021. She was unable to recall the dates of those meetings. She further explained that once she discovered her folder of original drawings for apartment 1401, she advised the appellant's lawyers of that fact and provided copies of the plans to them on or about 5 February 2021. She then denied meeting with the lawyers to discuss the fact of that discovery or the content of the plans before giving evidence. She stated that her contact was by email. 178 The difficulty with this evidence is that if Ms Hart did not recall the content of the critical discussions with the respondents in May and June 2017 until she located her folder of original documents in late January or early February 2021, then she could not have told the appellant's lawyers about the 3m to 4m discussion when her witness outlines were formulated in October and November 2020. If, however, she did relay the content of those discussions prior to the preparation of either of her witness outlines then it is difficult to accept why the lawyers for the appellant did not appreciate the significance of those discussions and include some reference to the fact that the maximum width opening was the subject of discussion between Ms Hart and the respondents in May and June 2017. Compounding that difficulty is the fact that no reference was made to these discussions by senior counsel for the appellant in her opening address before the primary judge and it was not until part way through the evidence of Mrs Ripani that the topic was first explored. 179 A further difficulty is that neither Mr Hu nor Mr De Mooy corroborated the account of Ms Hart. Mr Hu was at the meeting on 9 June 2017. A somewhat broad question was put to him in cross-examination as to whether he recollected from "interactions you had" with the respondents "through until the middle of June 2017" discussion about the openings that were proposed on the western façade. His evidence was that he could not recall. He was then pressed specifically as to what was discussed at the meeting on 9 June 2017 by reference to the render and he said that he did not have a recollection of the respondents referring to it at the meeting. 180 Ms Hart in response to questions from the primary judge stated that in June 2019 she told Mr De Mooy that she had explained to the respondents that the doors would not be constructed as depicted in the render. She said "it would have been" a discussion in person at the offices of Rothelowman which was also attended by Mr Young, a representative of the builder. However, when further pressed about this conversation in cross-examination, the evidence altered in that she said that the conversation was had with Mr Young and she assumed that he would relay its content to Mr De Mooy. Mr Young did not give evidence and Mr De Mooy could not recall a discussion to that effect.

The contrary evidence of Mr and Mrs Ripani 181 Additionally, each of the respondents denied that they had been informed by Ms Hart in May or June 2017 that the opening width depicted in the render could not be achieved and their subsequent conduct is inconsistent with advice to that effect, which brings me to the final submission of senior counsel for the appellant in support of this ground: the evidence of the respondents should not have been preferred. When the evidence of Ms Hart was put to Mrs Ripani in cross-examination (noting that it was not directly put that she had stated that the maximum achievable opening was between 3m and 4m) her first answer was: "I will be very surprised if she says that under oath". And then her evidence by reference to the Option C plan was (from T 363): The evidence of Ms Hart will be that she explained with reference to this plan that the arrows showed how the doors opened; what do you say that?--- She did not. … The evidence of Ms Hart will be that during meetings with you, after 26 April and before you went overseas, she, with reference to the printed A3 plans of these drawings, explained to you that there was this glass door that slid open between the fireplace and the terrace?--- No. What do you say that?--- No. She did not. And the evidence of Ms Hart will be that the largest opening between the interior and the terrace was centred near the fireplace, because then Mr Ripani could step outside and had a cigar. What you say that?--- I don't recall that. And she will say that it was your request that the larger opening be centred there, near the fireplace, for the reason that Mr Ripani could go outside and have a cigar. What do you say to that?--- It's not correct. And Ms Hart's evidence will be that you requested maximum openings, and so that was a reason why the plan changed from these two openings on the concept plan on 1085 to the three openings on the plans that I've been showing to you, in late April through to 5 June. What do you say to that?--- Ms Hart knew very well that I only thought there was one opening, so she never said there was three. … Yes, and during meetings with Kate Hart on the - the ones on 7 April and there was one just before you left to go overseas in June and there were meetings in between those times, these are meetings that which you say you brought your brochure to them. During those meetings, the evidence of Ms Hart will be that during more than one of those meetings she, by reference to the printed A3 plans, indicated to you where on the plan the doors would be located between the interior and the exterior. What do you say that?--- No, she did not. And the evidence of Ms Hart will be that she pointed out with reference to the printed A3 plans that she brought to meetings with you in April, May and June that there were three openings between the interior and the - I'm talking now not about the dining room but about the area that runs between the pool terrace and the interior on the left of the picture. Her evidence will be that she showed you that there were three openings between the living area and the pool terrace. What you say that?--- That's not correct. And if Ms - if she had ever pointed that out, this floor plan would never have been satisfactory. … Ms Costello: And the evidence will be that the three stacker a door system - I will take that back. So did Ms Hart explain to you why there was a change between the Option C plan and the Option E plan with those stacking doors?--- No. … Ms Hart's evidence will be that while she did not say to you that the doors between the interior and the exterior were of a particular metreage, width, she did say - she did point out to you, with reference to the A3 printed plans showing option - showing the various options of the apartment - where the multiple openings between the interior and the exterior were. What do you say that?--- No, she did not. And she will also say that in her discussions with you she would describe the opening - the glass opening areas between the interior and the exterior by reference to numbers of panes of glass. What do you say to that?--- I would be very surprised if she said that. So, Mrs Ripani, I put to you that you did - that it was explained to you by Ms Hart that there were three openings between the interior and the exterior, running along to the left of the building façade, before you said you were satisfied with the floor plan. What you say that?--- That's totally incorrect. 182 Mr Ripani's evidence in cross-examination on that topic was (from T 453): Ms Hart's evidence will be that she explained the door changes on the floor plans that I've taken you to today to you during her meetings with you in May and June 2017?--- She did not, Ms Costello. His Honour: Ms Costello, could you just be specific about what Ms Hart's evidence will be concerning the changes - in particular, what she will say were the nature of the changes. Ms Costello: Ms Hart's evidence will be that she discussed with you moving one of the openings to be centred near the fireplace; what you say to that?--- No, she did not. Ms Hart's evidence will be that she told you about the sets of sliding doors opened - that being doors, plural - between the interior and the exterior; what you say to that?--- The doors were never discussed, Ms Costello. And Ms Hart will say that she, by reference to the printed A3 plans, showed you on the plan where the doors were; what do you say to that?--- She did not, Ms Costello. 183 The respondents, in later correspondence that the primary judge summarised at PJ [111]-[130] initially expressed surprise and disappointment when told in October 2018 that the opening would be 6.4m in width (which they reluctantly agreed to accept as the worst case scenario) but later, when informed that the opening would be limited to 3.4m, rejected it as unacceptable for the reasons set out in their email of 13 June 2019. That conduct is difficult to reconcile with a mutual state of mind, as a result of the advice conveyed by Ms Hart, that the opening would be between 3m and 4m in width. 184 This is not to say that the evidence of the respondents was universally consistent with the evidence of other witnesses or objectively plausible in all respects. For example, the primary judge at PJ [111] references the following evidence: The first significant event in the post-contractual chronology is a meeting between Mr Hu and the Ripanis on 15 September 2017. Mr Hu gave evidence that at that meeting the Ripanis made a request for the "sliding door to be opened as much as possible". Mr Hu recorded a contemporaneous note of that request in light blue pen on a version of the Option E floor plan annotated '15.9.17'. Mr Ripani gave evidence that there was no discussion of the doorway or opening between the interior of the apartment and the pool terrace at any time during that meeting. Mrs Ripani gave evidence that the focus of the meeting on 15 September 2017 was in relation to the internal aspects of the apartment, including appliances and fittings. 185 Mr Hu gave very clear evidence that his annotations on the Option E floor plan of 15 September 2017 were made to record points that he discussed with the respondents. In particular, his evidence was (from T 735): And why were you making these annotations on the floor plan during the meeting?--- Just - just simply recording what they request, yes. There is a notation in the middle of the western façade, directly opposite the pool: Sliding door to be opened as much as possible. Do you see that?--- Yes. Why did you make this notation during the meeting?--- Because that's what Walter and Nina's request. So I just simply write on it. But when you say that simply Walter and Nina's request, when was that request made?--- During that meeting. What did Walter and/or Nina say in respect of that request?--- They just said, "We want the maximum opening." Who said that?--- I can't recall who say that. And what, if anything, did you say in response?--- I didn't say anything. Why not?--- Because I don't know how wide we can do, just simply taking the notes and pass on to the project team, being Rothelowman. 186 The respondents did not produce any note made by them during that meeting. The primary judge did not make a specific finding of fact as to whether he accepted the evidence of Mr Hu concerning that discussion. He did not find Mr Hu to be an untruthful witness. He did not find that his demeanour was unsatisfactory. Nor did he find that his evidence was reconstructed, in whole or in part. The obvious difficulty with the evidence of the respondents is not simply limited to their denial of a discussion with Mr Hu on 15 September 2017 about the proposed width of the opening in the western façade. Why would the respondents state that the sliding door was required to be opened "as much as possible" when their case rested on the fundamental proposition that they believed that the opening would be as depicted in the render? On their case it is the depiction of the opening in the render which was the most attractive feature of the apartment without which they would not have signed the contract and thereafter would not have communicated their satisfaction with the Option E floor plan. 187 This consideration can be further developed. The respondents' case was put expressly on the ground that they were not told at any time before the contract became unconditional that the opening on the western façade would be of any particular width. Mrs Ripani gave evidence that she assumed it would be as depicted in the render. Mr Ripani variously said that "I just loved the massive opening and the whole living area flowing out to the outside" and that by comparison with the length of the pool at 8m "the door opening had to be in excess of eight metres". When pressed in cross-examination as to that he answered "we expected the large opening" and then added: "well, we were never given a dimension. So we just based on the image that we were told was 14.01". 188 The belief that the respondents held is exclusively based on the impression conveyed by the render. What is then difficult to comprehend is why, in the meeting with Mr Hu on 15 September 2017, they would frame their specification for the "sliding door to be opened as much as possible" rather than something to the effect: "we require the opening to be as depicted in the render"? 189 A further difficulty with the evidence of the respondents is that they were given each of the Option A, B, C and, ultimately, E floor plans and it is clear that they interrogated the detail of those plans closely. None of those plans depict an opening in the western façade that is reconcilable with the opening depicted in the render. Each plan depicts, in various arrangements, a system of sliding doors on the western façade together with fixed mullions. Each of the respondents were cross-examined about their review of the floor plans and their understanding of what those plans conveyed. The evidence of Mrs Ripani in cross-examination was (from T 298): So, which part of the plans induced you to enter into the contract?--- The floor plan. And which floor plan was that?--- Option E. And did you look at the Option E plan carefully before instructing your lawyer to write that letter?--- I think I did. And what part of the plan that we've been looking at induced you to enter into the contract because you thought there was an invisible façade opening?--- What I - what you are pointing out to me. I can see a bank of doors on either side. I'm sorry, I didn't hear that. You can see---?--- I can see a bank of doors on either side. So, in this plan, I can see an opening which is very large, with a stacking door system that runs the whole way. And no one ever pointed anything out differently to me. No architect, no JD. 190 It will be recalled that the Option E floor plan was attached to the contract and is the floor plan that the respondents approved in order to satisfy special condition 43. Mrs Ripani was further questioned about her examination, and understanding, of the Option E floor plan before the contract became unconditional (commencing with a question about the render) (from T 328): … So, back in - on or around 8 May 2017, you did not look at this picture and assume any particular opening width, did you?--- Wasn't my focus. My focus was the internal of the floor. And when you looked at that other plan, which is Option E, dated 16 June 17---?--- Yes. I'm taking you back in time, now, to before the guarantee was given?--- Yes. You didn't pay any attention to this aspect of the plan, did you, about where the doors were between the inside and the outside?--- No, I can't say that because I can see - I can see the doors on either end. You can now, but you didn't then, did you?--- I can't testify to that assuredly one way or the other. I can see the doors, so I can't say whether I saw them - I can see that they're there. So, I assume that yes, I did see them at the time. I can't say that I didn't see them then, and I can see them now because I am the one that pointed them out to you, so obviously I can see them. So, who pointed them out to you for the first time, Mrs Ripani? Who pointed out the---?--- Well, I can see them on the plan. No, the first time you noticed the things you said today you understand to be the bottom and top of the sliding doors. Who first pointed them out to you on this plan as representing sliding doors?--- No one pointed them out to me. No one has ever pointed these out to you?--- No. So, when did you first notice the darker lines and assume that they were the beginning and end of the---?--- When I looked at the floor plan. When?--- I don't know when I looked at the floor plan, whether it was before we went overseas, while we were overseas, when we got back. I'm not sure, but when I looked at the floor plan, that was our final floor plan, and that's what I saw. His Honour: Mrs Ripani, you're putting yourself back to the point in time where you first had the opportunity to consider Option E. And I realise it was the end of a number of iterations of floor plans. Do you recall whether at that time you, when looking at the plan, interpreted the plan such that the two lines that you now identify as indicating doors - what I'm asking you is when did you, if you can recall, when interpreting the plan, understand that those lines represented doors, if you did come to make that interpretation of the plans?--- I can't give you a day, as such. I've looked at the plan for how many years, so I can't give you a date that it was the day before we went overseas that I looked at it or whether - while we were away or when we came back, but we did - I did look at the plan. And so, before the guarantee was given - and say if you can't recall, but doing the best you can, did you understand those lines I've mentioned on either end - at either end of the apartment depicted doors?--- I think so. Yes. Ms Costello: But I suggest to you, Mrs Ripani, that that's a recent invention, and that you didn't notice these doors that you now say show the beginning and end of what you thought was a triple-stacker doors system until you provided the guarantee?--- I don't believe that's true. 191 At a later point in the cross-examination, Mrs Ripani disputed the proposition that: "it's not clear that there are triple-stacker doors and an unbroken opening between the interior and the exterior" on the Option E floor plan. 192 As to the evidence of Mr Ripani, he stated in chief that he did not read through the whole contract before he signed it and that he was ultimately shocked when first told that the opening would be 6.4m at its widest point. In cross-examination, he accepted that he was experienced in purchasing apartments off the plan which experience extended to examining plans for such developments. However, when questioned about his examination of the initial Rothelowman concept plan for apartment 1401, he accepted that it depicted two sets of sliding doors on the western façade with otherwise fixed panes. The cross-examination continued (from T 436): That plan shows two sets of sliding doors between the interior and the exterior, doesn't it?--- Yes. And you were given that plan on 10 April, weren't you?--- Yes. And one of the sets of sliding doors is near the piano, whereas the other one is near the entertainment area; do you see that?--- Yes. But, pardon me, Ms - Ms Costello, again, the emphasis was on the floor plan. We were concentrating--- Mr Ripani, you said that---?--- Yes. --- and I would just like you to answer my questions?--- But I wasn't paying attention to the doors. 193 Mr Ripani then accepted that following the meeting on 7 April 2017 he "carefully" went through all of the drawings. When his attention was directed to each of the plans in the Design Development Presentation (which he received by email from Ms Hart on 12 April 2017) he accepted that none of those plans depicted an opening as large as that shown in the render or for the entire length of the swimming pool. However, when questioned as to his understanding of those plans at the time, he said that he did not notice the difference. He insisted that he and Mrs Ripani at all times "went by the render" and that they "just concentrated on the internal floor plan, and that's the god's truth" (T 441). 194 Mr Ripani gave evidence to the same effect when cross-examined about each of the Option A, B, C and E floor plans. He repeatedly insisted that, despite what is depicted on all of those plans, he did not notice the proposed configuration of the proposed doorways, fixed panels and openings. He said that he "based it on the image that we were told was 14.01" (T 451). Further, Mr Ripani accepted in cross-examination that he was never told that the opening would be 12m, 8m or 6m in width and "a dimension was never discussed" (T 441). 195 It is objectively difficult to accept that the respondents failed to notice the configuration proposed for the doors on the western façade as depicted in each of the plans which they had, commencing with the draft Rothelowman plan that was emailed on 10 April 2017 and concluding with the Option E floor plan that was approved in accordance with special condition 43 on 29 August 2017. Within that period, the respondents clearly interrogated each floor plan in order to advise their bespoke requirements which fact is established by the following evidence. Mr Ripani emailed Ms Hart on 10 April 2017 and requested "your initial drawings" as he and Mrs Ripani "would love to look at them thoroughly". That request was met. On 26 April 2017, Mr Ripani sent a WhatsApp message to Mr Tran to the effect that he intended to print off some copies of the revised floor plan in A3 format. That is a reference to the Option A floor plan. On 10 May 2017, Mr Ripani emailed Mr Tran to the effect that he and Mrs Ripani were "delighted with the revised plans", and that there were only "a few minor queries and changes". On 6 June 2017, Mr Ripani emailed Ms Hart and stated: "Nina and I had a good look at the revised drawing that you submitted last night and they look really good. I've just printed them out onto A3 to have a detailed look at them tonight, I have to say that what's been drawn up is pretty awesome." 196 Having set out this evidence, the primary judge rejected the submission put by the appellant that he ought to conclude that the respondents, upon the careful review of the iterations of the floor plans, ought to have appreciated that the proposed doors did not match the depiction in the render. At PJ [175] he said: It is convenient at this point to address the original defence as to causation, as I have described it. The evidence of the Ripanis and of Ms Hart revealed that the focus of discussions in the pre-contractual period was on the bespoke floor plan and fit out of the apartment. The Ripanis were interested in detail that mattered to them, including in the case of Mr Ripani particular fittings such as a cigar humidor and a watch winder. They were also interested in the floor layout of the apartment. Thus, the various iterations of the floor plans mainly involved changes to aspects of the internal floor plan and fit out. The Ripanis did not scrutinise the floor plans closely for potential discrepancies against the render, nor was that to be expected of them. Further, they did not observe, and then interpret, the 'single-bladed arrows' as apparently indicating doorway openings. Again, that is unsurprising. The relevant markings are small and faint, and there is no legend on the plan describing what various markings signified. In my view, the markings said to indicate door openings are inscrutable to the untrained eye. They are also obscured by the graphic depiction of the herringbone flooring on the floor plans. 197 At PJ [176], the primary judge accepted a submission that an alternative way of interpreting the detail of the floor plans is to read the proposed opening as providing "a full width stacking system of the type depicted in the render". He described the floor plans as "inscrutable" in detail. Further, at PJ [177], he noted that the drawings did not include elevations and speculated that if elevations had been provided "it would have presumably revealed the size and scale of the opening to be constructed". His Honour concluded this portion of his reasons at PJ [177] with the sentence: "[i]t seems to me that if the Ripanis were to be disabused of the impression created by the render, one convenient, clear and effective way to have done so would have been to produce a relevant elevation drawing". Senior counsel for the appellant criticises that reasoning as speculative. I agree. And with respect, that is not the only difficulty with this aspect of the reasons. The first sentence at PJ [175] is susceptible to interpretation that his Honour considered that the appellant bore an onus of proof on the causation question. It did not. The respondents were obliged to prove that they relied upon the misleading and deceptive conduct, being the representation conveyed by the render. The appellant introduced and relied upon the evidence of Ms Hart as a reason why the primary judge should reject the subjective reliance evidence of the respondents. As is well understood, subjective evidence as to that type of reliance is ordinarily treated with caution: Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18, Gummow J at [87]-[89]. 198 In any event, it is far more difficult to accept his Honour's characterisation of the floor plans as "inscrutable". When objectively viewed in A3 format (the respondents stated more than once that they intended to print and view the plans at that size) the proposed arrangement of sliding doors on the western façade is clearly depicted with arrows that show the direction of travel. There is nothing impenetrable or unfathomable about that detail.

Conclusion as to ground one 199 For these detailed reasons, I have concluded that ground one is made out. His Honour's conclusion at PJ [215] that Ms Hart's evidence should be rejected as reconstructed and unreliable rests upon several anterior errors with the consequence that it cannot stand. As that conclusion was central to the liability finding, the orders made by the primary judge must be set aside. 200 However, it does not follow that judgment should be entered for the appellant. This Court did not have the benefit of seeing and hearing the respondents and Ms Hart give their evidence and we do not have the entirety of the evidence adduced at the trial. That disadvantage is significant in this case. In my view, there must be a new trial limited to the hearing and determination of the issue upon which ground one succeeds, which course for similar reasons was contemplated, but not ultimately implemented, by Meagher and Leeming JJA in Prouten at [16]-[17]. Brereton JA in his dissenting reasons in that case concluded that he could be satisfied based on the contemporaneous documents that the accident occurred in the manner described by the plaintiff/appellant. I am unable to be similarly satisfied based on the documents in this case. Much turns on the oral evidence and who is to be believed. 201 This is clearly a case where the error of the primary judge was central to the result. Whether the evidence of Ms Hart is to be preferred to that of the respondents as to what was said at the meetings in May and June 2017 (and by reference to the various iterations of the floorplans that were provided, considered and discussed between April and August 2017) is a matter that must be determined by a trial judge who has the benefit of hearing and seeing each of those persons give their evidence and based upon a correct understanding of the chronology of events and the meaning of the contemporaneous documents. 202 This Court may grant a new trial on any ground it considers appropriate pursuant to s 28(1)(f) of the FCA Act. A new trial is to be distinguished from a remittal for further hearing pursuant to s 28(1)(c) and as explained by Finkelstein J in Community and Public Sector Union v Telstra Corporation Ltd (2001) 112 FCR 324; [2001] FCA 479, in some circumstances involving errors of fact, a new trial might be limited to the particular issue the subject of error. Further, as his Honour stated in his supplementary judgment ((2001)112 FCR 330; [2001] FCA 564), s 30 of the FCA Act provides that this Court may grant a new trial "either generally or on particular issues only, as it thinks fit". 203 It is obviously undesirable that there be a new trial at which each issue determined adversely to the appellant is open to be re-agitated. The appellant's success on this ground must frame the scope of the new trial which is limited to the question of reliance by the respondents upon the misleading and deceptive conduct of the appellant between the period 7 April 2017 to the date the contract became unconditional by payment of the deposit on 29 August 2017. The evidence to be adduced on that question will be for the parties to determine, subject to such further case management orders as the new trial judge thinks fit. The parties must remain bound by each other finding of fact and determination of the primary judge, save as disturbed by this Court. 204 Further, it is appropriate for the new trial judge to determine all consequential issues that may arise: if the respondents succeed, there will arise the assessment of damages and interest for example. And the question of the costs of the trial before the primary judge should also be determined upon the conclusion of the limited new trial.

Ground two: The disclaimer clauses 205 Although this ground speaks to error by the primary judge in failing to find that "the exclusion clauses" in the contract were ineffective, it was argued and is to be understood as a contention that the disclaimer clauses in the contract were effective to negate the effect of the misleading conduct conveyed by the render. The appellant's argument is not that the contractual clauses operated to exclude liability for its misleading or deceptive conduct, which the primary judge correctly understood: PJ [81]. 206 The contractual clauses relied upon are clauses 2.4 and 3.1 of the special conditions. Before turning to those clauses, I note the execution page where, immediately above the signatures of the respondents, there appears in enlarged type the following: SIGNING OF THIS CONTRACT WARNING THIS IS A LEGALLY BINDING AGREEMENT. YOU SHOULD READ THIS CONTRACT BEFORE SIGNING IT. 207 Ordinarily, a person who signs a written agreement is bound by its terms, even if the document is not read unless some vitiating factor operates: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [57], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. 208 Despite this warning, Mr Ripani in his evidence in chief answered "not really" to the question: "Did you read through the whole of that contract" on the day that it was signed. The primary judge found, and there is no contrary contention by the appellant, that the respondents did not read the contract before it was signed: PJ [85]. That cannot literally be so as they must have read the contract price, the handwritten particulars of sale and the signature clause. However, nothing presently turns on that. 209 The clauses relied upon provide: 2.4 Entire Agreement The Purchaser acknowledges that: (a) no information, representation or warranty by the Vendor, the Vendor's Agent or the Vendor's Legal Practitioners was supplied or made with the intention or knowledge that it would be relied upon by the Purchaser; and (b) no information, representation or warranty has been relied upon; and (c) this Contract contains the entire agreement between the parties for the sale and purchase of the Property and supersedes all previous negotiations and agreements in relation to the transaction. … 3.1 Acknowledgements: The purchaser acknowledges that: (a) It has purchased the Property as a result of the Purchaser's own inspection and enquiry and that the Purchaser does not rely on any representation or warranty of any kind made by or on behalf of the Vendor or its agents or consultants; (b) The description of areas and measurements appearing in any marketing material for the Development are approximate descriptions only and may differ from actual areas and measurements of the Development (including the Property) on completion of the Development; (c) The Vendor has not made any representations or warranties of the views available from the Development or Property; (d) Any photographs and other images created for the marketing of the Development are for illustrative purposes only and subject to change and cannot be relied upon by the Purchaser; (e) Any potential views depicted in the photographs and other images may not be available from the completed Development or Property; (f) The Vendor has no control over any development by parties unrelated to the Vendor of property surrounding or nearby the Development; and (g) Information contained in any promotional and marketing material is a guide only and does not constitute an offer, inducement, representation, warranty or contract. The Purchaser will not be entitled to exercise any Excluded Rights in relation to the matters in this special condition. (Collectively, the disclaimer clauses.) 210 In the appellant's written case the argument is expressed in this way: These Contract terms weighed against a finding that the marketing render conveyed a misrepresentation. The fact that the Ripanis did not bother reading the form of Contract before signing it did not negate this. The Ripanis' case relied at trial on being allowed to ignore the terms of the Contract, despite promising to be bound by its terms. The Contract was subject to the Ripanis' satisfaction with the floor plan. The Option E floor plan that was included in the Contract itself, showed where the sets of sliding doors would be. The Ripanis worked with Ms Hart to settle the floor plan, which superseded the marketing render. The primary judge ought to have concluded that the express terms of the exclusion clauses set out above explicitly negated any effect that may have been created by the earlier marketing render, and in so doing, should have held the Ripanis to the terms of the Contract for the sale and purchase of a $10m apartment. 211 The appeal ground attacks the reasoning of the primary judge at [89]-[90] which involves alternative steps. The first at [89] is the conclusion that the disclaimer clauses did not effectively correct the misrepresentation conveyed by the render. His Honour said: For Century Legend's analysis to be accepted, it would require at the least that the exclusion clauses were objectively capable of correcting the impression created by the render. An assessment of the efficacy of the exclusion clauses in this respect must include the context in which the Ripanis were given the render and what Mr Tran said to them about it. In the present case, the context in which the Ripanis were given the render meant they were entitled to expect that what was depicted would in substance be constructed. In my view, to do the work necessary to correct the impression created by the render, the exclusion clauses would therefore need to be expressed in terms such that purchasers would be aware that the render is not a depiction of what apartment 14.01 would look like when constructed. 212 In reasoning in that way, the primary judge referenced and applied the reasoning of French CJ in Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [29]: A person accused of engaging in misleading or deceptive conduct may claim that its effects were negated by a contemporaneous disclaimer by that person, or a subsequent disclaimer of reliance by the person allegedly affected by the conduct. The contemporaneous disclaimer by the person engaging in the impugned conduct is likely to go to the characterisation of the conduct. A subsequent declaration of non-reliance by a person said to have been affected by the conduct is more likely to be relevant to the question of causation. (Footnotes omitted.) 213 In my view, no error is demonstrated in that reasoning by the primary judge. The appellant must accept that, despite the prominent contractual warning, the respondents did not read the special conditions when they signed the contract (or thereafter until they communicated their satisfaction with the Option E floor plan) and there is no challenge to the finding at PJ [41] that the respondents relied on the render. The disclaimer clauses operate as terms of the contract which was signed as a result of the appellant's misleading and deceptive conduct. Contrary to the clauses, the fact is that the respondents did rely on the render and were induced to enter into the contract and to communicate satisfaction with special condition 43. On those facts, the disclaimer clauses did not erase the effect of the appellant's anterior misleading conduct. As explained by McHugh J in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 at [157]: "a disclaimer is only effective if it actually modifies the impugned conduct such that the conduct as a whole may be seen as not misleading, not because the disclaimer has any independent force of its own". 214 None of the disclaimer clauses so operated in this case. 215 Having concluded that the disclaimer clauses were ineffective in this case it is unnecessary to consider the appellant's second argument which is concerned with the alternative boilerplate clause reasoning at PJ [90].

Grounds three and four: 216 These grounds challenge the reasoning of the primary judge that led him to grant relief in the form of rescission of the contract. The primary power relied on was s 243 of the ACL, though his Honour reasoned in the alternative that he would also grant rescission in equity. Ground three contends that it was not open to grant relief pursuant to the statutory power because the respondents failed to prove that they had suffered loss or damage by reason of the misleading conduct of Century which is a necessary precondition to be found at s 237 of the ACL. Ground four builds upon the no damage point by adding the contention that his Honour's discretion to grant equitable relief miscarried because there is no appreciable difference between the render and the apartment as built. 217 Section 237 of the ACL relevantly provides: 237 Compensation orders etc. on application by an injured person or the regulator (1) A court may: (a) on application of a person (the injured person) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that: (i) was engaged in a contravention of a provision of Chapter 2, 3 or 4; or (ii) constitutes applying or relying on, or purporting to apply or rely on, a term of a contract that has been declared under section 250 to be an unfair term; or (b) on the application of the regulator made on behalf of one or more such injured persons; make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct. Note 1: For applications for an order or orders under this subsection, see section 242. Note 2: The orders that the court may make include all or any of the orders set out in section 243. (2) The order must be an order that the court considers will: (a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or (b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons. 218 Without limiting the generality of s 237, s 243 specifies certain kinds of orders that may be made. It includes that which the primary judge described at PJ [223] as "an order in the nature of statutory rescission" at subparagraph (a) which provides: (a) an order declaring the whole or any part of a contract made between the respondent and a person (the injured person) who suffered, or is likely to suffer, the loss or damage referred to in that section, or of a collateral arrangement relating to such a contract: (i) to be void; and (ii) if the court thinks fit--to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made). 219 As explained by Allsop P in Awad v Twin Creeks Properties Pty Ltd [2012] NSWCA 200 at [43] the statutory power is not confined "by reference to general law analogues but by reference to the rule of responsibility in the statute that is directed against misleading and deceptive conduct" and one should eschew a mechanistic "but for causation enquiry". Nonetheless, the power to grant relief that is not an award of damages pursuant to s 236 is constrained by the twin statutory requirements expressed at s 237: there must be an application by a person who has suffered or is likely to suffer loss or damage because of the contravening conduct; and the order must be one that the court considers will compensate the injured person in whole or in part for that loss or damage, or at least reduce it. These requirements were recently considered in detail by this Court (Lee, Anastassiou and Stewart JJ) in Harvard Nominees Pty Ltd v Tiller (2020) 282 FCR 530; [2020] FCAFC 229 (Harvard Nominees). 220 Senior counsel for the appellant correctly submits that the respondents failed to adduce evidence as to the difference in value (if any) between the contract price for the apartment and its true value upon completion, with and without the opening on the western façade as depicted in the render, despite calling evidence from a registered valuer Mr Anthony Rohan. Mr Rohan authored an expert report in which he opined that as at the valuation date of 12 November 2020, the market value of apartment 1401 "as if complete" would be $9,200,000 as compared with the contract sale price of $9,580,000. He prepared that opinion in answer to his express instruction from the solicitor for the respondents framed as: Please provide your market appraisal reflecting the present market value of the property in today's market. If you are unable to attribute a value to the property, please advise whether, in your opinion, the market for such apartments has risen or fallen relative to the market as at June 2017, and whether its value is likely to have moved since that date and to what extent. 221 In my view, the valuer was asked the wrong question and to that extent I accept the submission as put by senior counsel for the appellant. In order to demonstrate whether the respondents suffered economic loss by reason of the misleading conduct of Century, the valuer ought to have been asked to express an opinion as to the difference in value between the contract price and the completed apartment on two alternative assumptions: one, with the façade opening as depicted in the render, and the other without it and "as constructed". The primary judge at PJ [233] referenced the opinion of the valuer and found in accordance with it that the apartment had decreased in value by approximately $380,000, concluding at PJ [234] that: The Ripanis did not lead any evidence concerning the value of the yet-to-be constructed apartment at the date they entered into the contract, which I have found to be on or about 29 August 2017. Such evidence may be required in other so called 'no-transaction' cases. However, in the present case, it is sufficient to establish that in the events that have transpired, the apartment has depreciated in value subsequent to the contract to purchase it but before completion. In this regard, it is important to appreciate that the Ripanis do not claim to recover the diminution in value of $380,000. Rather, the significance of this evidence is to demonstrate the causal link between the misleading or deceptive conduct, which caused the Ripanis to enter into a contract, as a result of which, if enforced, the Ripanis would suffer, or be likely to suffer, economic loss, assessed at $380,000 as at 12 November 2020. 222 To this, the primary judge added at PJ [235]: Century Legend did not lead any contrary valuation evidence. Accordingly, at the time of the hearing I am entitled to infer that the value of the apartment was less than the Ripanis contracted to pay for it. Thus, if it be necessary to establish economic loss, that has been established. It therefore follows that the pre-requisites to the exercise of the statutory power to order rescission are satisfied. In short, the grant of an order in the nature of rescission will achieve practical justice and avert the risk to the Ripanis that if required to complete the purchase, they would, or would be likely to, suffer economic loss. 223 With respect, that reasoning is erroneous as submitted by senior counsel for the appellant. The respondents carried the onus of proof, which relevantly included the onus to prove on the balance of probabilities that they suffered loss or damage as required by s 237 of the ACL. The fact that the appellant did not lead contrary valuation evidence did not entitle his Honour to infer that the respondents had suffered economic loss. Moreover, the fact that apartment 1401 had "depreciated in value" from the contract date to November 2020, did not establish that the fall in value was attributable to the inability to construct the western façade as depicted in the render. 224 However, his Honour did not exclusively found the exercise of the statutory discretion to grant relief upon his economic loss conclusion. Properly understood, his reasons express this as an alternative to his primary conclusion that the respondents suffered relevant detriment (which he equated to loss or damage) because they suffered the disadvantage of incurring a contractual obligation which they would not have incurred but for the impugned conduct: PJ [224]-[227]. In reasoning in that way, his Honour applied the decision of this Court in Harvard Nominees, particularly at [77] where, following a comprehensive analysis of certain dicta in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 43-44 (Gummow J) and 47 (Cooper J), (Black CJ concurred with each judgment), its reconciliation with what Mason CJ, Dawson, Gaudron and McHugh JJ said is necessary to establish loss or damage in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 527 and the criticism of that dicta by McHugh, Hayne and Callinan JJ in Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at 514, it was concluded at [73] that what is required in each case is a fact-specific inquiry though "detriment in a general sense" is insufficient. The Court in Howard Nominees continued at [73] and [74]: 73. … In a passage the primary judge in this case quoted and relied upon, Mason CJ, Dawson, Gaudron and McHugh JJ in Wardley quoted a passage from the judgment of Ackner LJ in UBAF Ltd v European American Banking Corporation; The Pacific Colocotronis [1984] QB 713, where his Lordship remarked (at 725) that: The mere fact that the innocent but negligent misrepresentations caused the plaintiffs to enter into a contract which they otherwise would not have entered into, does not inevitably mean that they had suffered damage by merely entering into the contract. (Emphasis added.) 74. In considering whether the statements in Demagogue can be reconciled with Wardley, his Honour did not otherwise make reference to any particular passage in Wardley. It is to be noted that Lord Justice Ackner, similarly to the joint judgment's statement that such a detriment "has not universally been equated" with loss or damage, said that the mere entry into a contract "does not inevitably" result in such loss or damage. Such statements do not foreclose the possibility that in some circumstances, such an entry will have that effect. It is the third emphasised passage above of Gummow J's reasons in Marks which encapsulates the true issue that confronted the Court in Wardley. The loss was incapable of ascertainment at the time of the entry into the contract precisely because the liability that was said to create the loss would not come home until that contingency was fulfilled. That is a perfectly logical analysis to conduct in the context of s 82 relief, which requires actual, not prospective, loss. That was the inquiry conducted by Gummow J in Marks where his Honour applied the Wardley approach to determine that s 82 relief was not available. 225 In argument before us, senior counsel for the appellant relied upon an earlier passage in the reasons of this Court in Harvard Nominees at [21]: … But the power to make such an order is relevantly confined by two matters: first, it only arises on the application of Harvard if it had suffered, or had been likely to suffer, loss or damage because of the contravening conduct; and secondly, the order must be one that the court considers will compensate Harvard, in whole or in part for the loss or damage, or prevent or reduce the loss or damage suffered, or likely to be suffered: see s 237(2). 226 That passage does not completely express the reasoning of this Court, nor the essential conclusion that detriment, and therefore damage, may arise from the fact that a person is bound to a contract "unconscionably induced… or that it includes the disadvantage of incurring contractual obligations which would not have been incurred but for the conduct complained of": Harvard Nominees at [77]. In my view, the primary judge was correct to frame the principle in that way at PJ [224]. How he applied it is revealed at PJ [226]-[227]: The Ripanis have entered into a contract to purchase an apartment for over $9,500,000. The apartment, as constructed, does not have the particular feature that induced them to enter the contract; namely, a free span opening between the internal living area and terrace. Furthermore, this is not a case involving a mistake in the preparation of an advertisement or inadvertent misstatement. To the contrary, it is a case in which the Ripanis were misled by reason of a render that depicted an apartment Century Legend never intended to construct and, notwithstanding a series of warnings, persisted to use in marketing the Victoriana. In my view, therefore, the Ripanis have suffered detriment by reason of being induced to enter into a contract on the basis of a misleading render. If required to perform the contract, the Ripanis would experience a substantial prejudice and disadvantage. Further, as the Full Court explained in Harvard Nominees (at [96]): the "principles developed in equity are at least relevant to the exercise of ... the statutory discretion to make orders in the nature of rescission under s 243". That is to say, the Court may order rescission on terms that seek to "do what is practically just" between the parties. The well understood maxims of equity include that equity considers as done that which ought to have been done: Dal Pont G, Equity and Trusts in Australia (7th ed, Thomson Reuters, 2019). Applied in the present circumstances, those principles fortify my view that an order for statutory rescission is appropriate. 227 Ground three, at least obliquely, challenges that reasoning with the contention that: "[t]he difference between the artist's impression of what the apartment would look like and what was to be built is immaterial". At once that opens a large area of evaluative assessment beyond the bare contention that was put to us in argument: "it's a difference as to metreage. 6, 8, 3.4: we submit that is trivial or immaterial". The point was not developed by reference to the evidence. What must not be overlooked is the substantial evidence of the respondents as to their perception of what was to be constructed as depicted in the render and the importance to each of them of that feature of the apartment. It is unnecessary to essay all of that evidence save for the following. In evidence in chief, Mr Ripani was asked about whether the render impressed him. He replied (T 379): …I just loved the massive opening and the whole living area flowing out to the outside area. It reminded us very much of Beaconsfield Parade. And just for his Honour's benefit, what was Beaconsfield parade?--- We had a home with a very similar three-door stack system that opened up quite extensively, most of the whole backyard, and we had a pool in the back. 228 Considerably more detailed evidence was given by the respondents to the effect that they saw as important the open plan and flow-through design as depicted in the render. Specifically, on the question of reliance, Mr Ripani had this to say in his evidence in chief (T 399): As at 17 June, when you left to travel overseas, what was your belief as to what the apartment you were buying would look like, where the interior meets the terraced exterior?--- I believed that the floor plan was exactly what - was exactly what we wanted on the inside, and that we were going to have those doors and it was going to flow outside, and it was one big open door that led us out there, and it was that whole flow-through effect. Would you have been prepared to purchase the apartment if you had been told you might not be getting that?--- I wouldn't have even considered it. We were never told. 229 In my view his Honour was entitled to find, in accordance with that evidence, that the respondents suffered detriment being the "substantial prejudice and disadvantage" of being held to purchase an apartment without the primary feature that was so attractive and important to them in their decision-making. The somewhat arid conclusion that the appellant invites this Court to reach based on how one might employ language to describe the difference fails to account for the subjective importance of the feature to the respondents and how it was central to their decision-making to enter into the contract. 230 For these reasons ground three fails, despite the error that is revealed by the alternative reasoning pathway of the primary judge. 231 Technically, ground four need not be addressed, though in deference to the arguments of senior counsel for the appellant I do so briefly. The first part of this ground, which turns upon the contention that there is no material "or actionable" difference between the depiction in the render and what has been constructed, fails for the reasons that I have expressed upon ground three. Separately it is contended that the exercise of his Honour's discretion miscarried because the respondents failed to prove that they suffered actual financial loss by reason of the misrepresentation that was conveyed by the render. The short answer to that submission is that financial loss is not a necessary element of the cause of action for misrepresentation: all that is necessary to establish is that the innocent party was induced to change his or her position, and to their detriment: Australian Steel and Mining Corporation Pty Ltd v Corben [1974] 2 NSWLR 202 at 208, Hutley JA. For a more detailed exposition see Spencer Bower & Handley, Actionable Misrepresentation (5th ed, LexisNexis, 2014) at [7.01] - [7.02]. 232 Detriment of that type was suffered by the respondents. This ground therefore fails.

Conclusion 233 For these reasons, I would allow the appeal and order as follows:

Leave is granted to the appellant to amend the notice of appeal in the form of the document provided to the Court on 8 August 2022.
The appeal is allowed.
The orders made in proceeding VID 266 of 2020 on 18 March and 13 April 2022 are set aside.
Pursuant to ss 28(1)(f) and 30 of the Federal Court of Australia Act 1976 (Cth) there be a new trial of the proceeding: (a) limited to the issue of whether the respondents continued to rely on the misleading or deceptive conduct of the appellant within the period April 2017 to the date the contract of sale became unconditional in August 2017, and if resolved in favour of the respondents, the relief that should be granted; and (b) on the basis that: (i) the parties are bound by each other finding of fact and determination made by the primary judge, save for the findings and determinations relevant to (a); (ii) the parties may adduce such evidence and may make such submissions in accordance with such case management orders as the judge who hears the new trial thinks fit; and (iii) all questions of costs of the trial before the primary judge are to be determined by the judge who hears the new trial.
The orders made by Beach J on 28 March 2022 are dissolved.
Within 7 days the parties are to provide written submissions of no more than 5 pages on the question of the costs of the appeal.
Subject to any further order of the Court, the costs of the appeal will be determined on the papers. I certify that the preceding two hundred and thirty (230) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.

Federal Court of Australia Act 1976(Cth)ss 24, 27, 28(1)(f), 30, 37M, 37N

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