VIZZONE: Well, you can come in and collect your papers. I will prepare a bill for you.
17 Subsequently, Mrs Anasco collected her papers from Mr Vizzone's office.
18 The purchaser served a notice to complete on 24 August 2009, requiring completion on 10 September 2009. On 9 September 2009, new solicitors for Mrs Anasco, Boyd-Boland, wrote to Mr Klimt that Mrs Anasco did not propose to settle on 10 September 2009. These proceedings were commenced by summons filed on 13 October 2009.
Non est factum
19 The availability of the defence of non est factum is not limited to those who are unable to read the relevant instrument due to blindness or illiteracy, but extends to those who, without fault on their part, are unable to understand the purport of the instrument. However, a party invoking the defence bears a heavy onus of showing (1) that he or she signed the document in the belief that it was of a nature radically different from its true nature; and (2) as against innocent persons, that this was not due to carelessness (in the sense of a failure to take reasonable precautions) on his or her own part [see Petelin v Cullen (1975) 132 CLR 355, 360].
20 Mrs Anasco's case is that she placed her signature on the contract on 6 or 7 July, in her kitchen, believing it to be no more than a list of inclusions, under pressure from Mr Abela to do so, in circumstances where the contract was partially obscured and was represented, implicitly if not explicitly, to be no more than instructions concerning the inclusions, at a time when she had changed her mind and no longer wanted to sell the unit.
21 While Mrs Anasco's evidence was that Mr Abela visited the unit on 6 or 7 July, and that she signed the document then, Mr Abela denied that that was the case, and maintained that Mrs Anasco signed the contract in his office on Wednesday 8 July. It is correct, as Mr Curtin for Mrs Anasco points out, that in his affidavit Mr Abela did not deny execution on 6 or 7 July, nor maintain - as he subsequently came to do - that execution had taken place on 8 July, but he did deny that execution had taken place in Mrs Anasco's kitchen and maintained that it had been in his office, and the absence of express denial of the date in those circumstances does not convey admission of execution on 6 or 7 July. Mr Abela's evidence that execution occurred in his office is consistent with his contemporaneous note and more convincing and plausible than that of Mrs Anasco. Mr Abela said that on about 7 or 8 July Mr Klimt telephoned him to say that Ms Heilpern wished to proceed with the contract. If (as Mr Abela says) Mrs Anasco traveled by bus from her home at Coogee to see Mr Abela in Gardiners Road, Rosebery then that is likely to have happened that or the following day.
22 Mr Vizzone has a file note which attributes to 8 July his conversation with Mrs Anasco in which she confirmed that she had signed the contract and that she agreed with the price of $587,000. While Mr Abela's diary note of the acceptance of $587,000 appears on 9 July, it could have been prompted by what transpired the previous day, or by subsequent confirmation from Mr Vizzone that she had accepted the price.
23 By far the best fit of the evidence is with signature by Mrs Anasco on 8 July, consistent with Mr Abela's evidence. I also accept Mr Abela's evidence, consistent as it is with his file note, that the contract was signed in his office. I find that Mrs Anasco signed the contract in Mr Abela's presence, in his office, on Wednesday 8 July.
24 Dr Leon's evidence establishes that Mrs Anasco was at the relevant time likely to have had increased anxiety, and "a degree of impaired recollection of the detail of events", and greatly reduced ability to concentrate, remain calm or resist pressure. However, that falls well short of establishing that she was unable to understand the nature and effect of the contract for sale (although it may be relevant to her Contracts Review Act case). No difficulty was apparent in her reading and understanding, in the witness box, of the letter from Messrs Vizzone Ruggero & Associates dated 14 May 2009, which referred to the forwarding of a copy of the proposed sale contract to the agent.
25 Mrs Anasco maintained that by 4 July she had changed her mind and no longer wished to sell. It is true that Mr Abela did not deny Mrs Anasco's assertion that, at some stage in or about June, she had told him that she no longer wished to sell; but on Mrs Anasco's own version they continued to have contact, and he continued to act. Most obviously, the unit was open for inspection, with Mrs Anasco's co-operation, on 4 July. Ms Heilpern's evidence that she was admitted by Mrs Anasco to the unit, and discussed with Mrs Anasco her desire to purchase it, and what items were to be included in the sale, on Saturday 4 July, is inconsistent with Mrs Anasco's case that she told Ms Heilpern that she did not want to sell, and also with her contention that she did not have an understanding of the nature of the transaction. It is hardly conceivable that Ms Heilpern would have proceeded to obtain a contract, instruct a solicitor and pay a deposit, had Mrs Anasco said anything to the effect that she was not interested in selling, even if only in the short term (given Ms Heilpern's anxiety to find accommodation). It is also very difficult to reconcile Mrs Anasco's version with the objective facts that she admitted Ms Heilpern to the unit and discussed sale of it with her. Ms Heilpern's is the far more probable version. Mrs Anasco did not revoke Mr Abela's instructions or authority; she may have had some second thoughts, but she had not decided to withdraw the unit from sale.
26 Although she had not said so in her affidavit, Mrs Anasco asserted in the course of her cross-examination that she did not (at the time of signing the document) understand the meaning of the word 'contract'. This is inconsistent with her affidavit, where she deposed: I knew that to sell my property I would have to sign a Contract. It is also difficult to reconcile with her apparent unquestioning receipt and acceptance of Mr Vizzone's 14 May 2009 letter, in which he referred to forwarding a draft contract to the agent. Moreover, even if accepted, evidence that she did not understand the word 'contract' would be insufficient of itself to establish non est factum, in the absence of proof that she was mistaken as to the nature of the document that she signed. The document contained ample indications that it was an instrument of sale - and not merely (as she claimed she believed to be the case) a mere list of inclusions in the event that the property sold - including references to price and deposit: even on what she said was the form of the contract that was presented to her by Mr Abela, she placed her initials adjacent to the word 'Price:'; on what was more likely signed by her, she initialed adjacent to 'Price: $587,000'.
27 On Mrs Anasco's version, she placed her signature on the document, believing it to be instructions about inclusions, on 6 or 7 July. But this was after she claims to have decided not to sell, and to want nothing further to do with Mr Abela. Why in those circumstances she would sign a document at his request, even if she believed it to be limited to inclusions, is incomprehensible. Her protestations that while she saw references to various inclusions, she did not see the word "Purchaser", and she initialed beside blank provisions for "Price", "Deposit" and "Balance", are highly improbable; it is much more likely that those blanks had been completed, with references to the price.
28 There are a number of uncontroversial, undisputed or indisputable facts that together are strong indicia that Mrs Anasco did understand that the document she signed was a contract for the sale of her unit. First, she had instructed a real estate agent and signed a Selling Agency Agreement with him on 8 May 2009; this necessarily contemplated a sale of the unit. Secondly, the unit had been open for inspection on 4 July, when Ms Heilpern had expressed to her enthusiasm to purchase it, and to do so swiftly. Thirdly, Mr Vizzone had written to her on 14 May, confirming his instructions. Fourthly, she had immediately beforehand discussed price with Mr Abela, and repeatedly increased her asking price as offers matured; this only makes sense if she was contemplating a sale. Fifthly, she placed her initials on the document, at least adjacent to a reference to "Price:", and probably adjacent to a reference to "Price: $587,000".
29 In addition, there are matters of which, although not accepted by Mrs Anasco, I am comfortably satisfied. First, prior to exchange of contracts, Mr Vizzone confirmed with her that she had signed the contract and accepted the price of $587,000. Mr Vizzone's evidence in this respect was not significantly challenged, was corroborated by his contemporaneous note, and was consistent with usual conveyancing practice. Secondly, soon after 9 July 2009, Mrs Anasco mentioned to Mr Abela that there was to be a meeting of the Owners Corporation and that it would be a good idea for the purchaser to attend; Mr Abela suggested this to Ms Heilpern, who said that she did not intend to go to the meeting. Thirdly, the conversation with Mrs Anasco recorded by Mr Abela in his file note of 11 July establishes that Mrs Anasco was then aware that she had signed a contract. Fourthly, Mrs Anasco instructed Mr Vizzone to write to Ms Heilpern's solicitor on 5 August 2009 requesting a 21-day extension to the settlement period and saying that Mrs Anasco would endeavour to vacate the property and settle as soon as possible; such instructions are inconsistent with her not understanding that she had made a contract. Finally, Mr Vizzone's evidence of the circumstances in which Mrs Anasco protested that she had not signed the contract - because she had been told as much by others in the building - provides some explanation of her apparent change of position.