Hyder v McGrath Sales Pty Ltd

Factual findings

1. Evidence was given in the plaintiff's case by Mrs Hyder and Mr Hyder. Affidavits from both of them were read and they were both cross-examined.
2. Evidence was given in the defendant's case by Mr Jewell-Tait, Mr Collier and Mr Bordin. Affidavits from each of them were read. Mr Jewell-Tait was not cross-examined. Mr Collier and Mr Bordin were.
3. I have already referred to the inaccurate picture presented in the plaintiff's case about Mrs Hyder's role in the purchase. It emerged in cross-examination of Mrs Hyder that her affidavit was inaccurate in more than one respect. Some instances are referred to below. Overall, it appeared to me that Mrs Hyder had sworn her affidavit as prepared, without proper consideration of what she could in fact remember. Despite requests not to do so, on various occasions in her oral evidence she lapsed into reconstruction. I was left with the impression that she may have little or no actual recollection of the relevant events. I am not satisfied that her evidence, either in her affidavit or orally, is reliable, and I approach it with caution.
4. Mr Hyder's affidavit suffered from some of the same deficiencies as Mrs Hyder's. In oral evidence, he was outgoing and forthright if occasionally argumentative. Overall, I formed the impression that he was doing his best to assist the Court with what he could recall. But I suspect that he has formed the view that what has happened is all the responsibility of the agent, and I am not satisfied that his evidence is reliable on matters of detail.
5. Mr Collier and Mr Bordin both gave their evidence in a straightforward manner and I have no difficulty accepting their evidence, so as far as it goes. Quite understandably, however, they did not have specific or detailed recollections of the particular conversations they had with the Hyders about the property.
6. The easements in question derive from Deposited Plan 30439 which was registered at the time of the subdivision in 1960. The plan showed the three "handle" strips of land as the site of a proposed "right of way" and bore the notation: It is intended to create reciprocal rights of way over parts of lots 4, 5 and 7 in favour of lots 2, 3, 4, 5, 6 and 7.
7. The easements benefiting and burdening lot 4 are recorded in three registered Memoranda of Transfer. The easement is defined in the same terms by each Transfer. It confers a right on the proprietor of the dominant tenement or their tenants, servants or agents, and all other persons authorised by them "to pass and repass with or without horses and other animals carts wagons carriages traction engines motor cars and other vehicles laden or unladen over and along" the servient tenement.
8. Excluding the "handle", lot 4 is an oblong shape running from south to north and longer in its north/south dimension than its east/west dimension. On the south-western corner is a gate which opens to a courtyard area outside the house. A two-car garage abuts the house and opens onto the courtyard area. It is also possible to park cars in the courtyard area itself, although care would be required not to block access to and from the garage.
9. The house has two storeys. North of the house is a terrace and a lawn with a swimming pool and, in the north-east corner, a structure described as a "cabana". The lawn area is extensive and benefits from a northerly aspect, although it does not have a view.
10. The "handle" strip which forms part of lot 4 is the easternmost of the three strips. On its eastern side it abuts another lot in the subdivision (lot 3) which fronts Ginahgulla Road. Travelling south from the gate there is a wall on the left (eastern) side at the edge of the driveway which abuts lot 3. The wall extends for approximately 15 metres. There is then a garage on lot 3 which opens onto the driveway. Beyond that, at the entrance to Ginahgulla Road, there is a garden bed containing shrubs which extends out onto the land belonging to lot 4.
11. The wall next on the boundary with lot 3 carries two signs marked "Private Parking" and underneath the street number for lot 4. I will refer to the area next to the wall as the "private parking" area.
12. The essential features of the property as at October 2014 are shown in a diagram annexed to this judgment.
13. At the time of the sale, the top floor had three bedrooms and there was another bedroom on the ground floor which was being used as a study. Mr Jewell-Tait had previously obtained a development approval allowing for the extension of the second storey and construction of another bedroom above the garage. He had not acted on the approval and it had lapsed.
14. Mr Jewell-Tait gave evidence about the use of the "private parking" area before September 2014. He bought the property in July 2011 and lived there with his wife, Ms Joanne Tait. It appears that the "private parking" signs were there when he bought the property.
15. On the face of it, the wording of the "private parking" signs suggested not only that members of the public were not entitled to park in the area, but that it was reserved for the exclusive use of lot 4. However, Mr Jewell-Tait's evidence was that other lot owners from time to time parked their cars in the area, although they tended to use it less than he did. He said that there was "never an issue" with the neighbours about the parking area and he was "never really bothered by it". Because Mr Jewell-Tait did not give oral evidence, the basis on which neighbours used the "private parking" area was not further explored.
16. The Agency Agreement between Mr Jewell-Tait and McGrath is dated 12 September 2014. Mr Collier and Mr Bordin visited the property around that date and conferred with Mr Jewell-Tait and his wife. Mr Collier travelled by car, parked in the "private parking" area and noticed the signs. Mr Collier paid several further visits to lot 4 in the course of planning the marketing and sale campaign.
17. Mr Collier's evidence was that Mr Jewell-Tait mentioned the "private parking" area to him orally. Mr Jewell-Tait's evidence confirmed this. He could not remember whether he had told Mr Collier about neighbours parking on the "private parking" area and I am not satisfied that he did. I am satisfied that throughout the period of marketing and sale of the property, Mr Collier and Mr Bordin both believed, as a result of the signs and what they were told by Mr Jewell-Tait, that the owners of lot 4 were entitled to the exclusive use of the "private parking" area.
18. The sale contract was prepared by solicitors acting for Mr Jewell-Tait as vendor. As I have mentioned, the contract was a standard form one with some special conditions. As was required by the Conveyancing (Sale of Land) Regulation 2010 (NSW), s 4, Sch 1 (now repealed), there was annexed to the contract a search of the property. The search noted the easements affecting the land. The Deposited Plan and Memoranda of Transfer creating the easements were also attached to the contract. The attachments were printed on 15 September 2014 so the contract must have been completed at some point after that.
19. The special conditions included the following: 9.4 The purchaser acknowledges that the purchaser, when entering into this contract, relied exclusively on the following matters independently of any statements, inducements or representations made by or on behalf of the vendor (including by any estate agent acting onbehalf of the vendor): (a) the inspection of and investigations relating to the land made by or on behalf of the purchaser; (b) the warranties and representations expressly contained in the contract; (c) the skill and judgment of the purchaser, its consultants and representatives; (d) opinions or advice obtained by the purchaser independently of the vendor or of the vendor's agents or employees. 9.5 The purchaser acknowledges that other than expressly contained in this Contract, no representations, inducements or warranties have been made by the vendor or its agents or representatives relating to the suitability of the property for the purposes of the purchaser or any contamination relating to, caused by, or affecting the property.
20. In order to promote the property, photographs were taken and a video was later made. The property was to be advertised in a number of ways. Listings were to appear on the internet, both on McGrath's own website and on other real estate websites, including domain.com.au and realestate.com.au. Listings were also to be placed in newspapers and magazines together with editorial submissions for publication. A brochure was to be prepared. There were also to be mail-out cards and a signboard.
21. In accordance with McGrath's usual practice, the preparation of the advertising copy and the plans to be used in the advertising was contracted to an external agency. In the case of lot 4, this was an agency known as "Campaigntrack". Mr Collier's practice upon receipt of the copy and plans was to refer to the contract and its annexures, but only for the purpose of verifying the land area and ensuring that the area was accurately stated in the advertising material. The advertising material would then be provided to the vendor whose approval was required before marketing could commence. On 26 September the advertising copy and plans were sent to the Jewell-Taits for comment. There is no direct evidence of approval, but I see no reason to suppose that approval was not received in the ordinary way before marketing began.
22. The advertising copy for website listings was as follows: Family haven on north facing 980sqm level parcel Nestled on a north facing 980sqm level parcel, this luxury family residence offers a premier indoor/outdoor lifestyle with Cranbrook School and The Scots College within strolling distance. It is impeccably presented to provide a home of style and elegance. * Beautifully renovated with interiors by Sally Greenaway * Flowing layout with a choice of light filled living spaces * Lush garden, swimming pool, outdoor areas for entertaining * Marble kitchen includes Miele induction and butler's pantry * Four bedrooms, main with walk through robe and full ensuite * Three contemporary bathrooms, guest powder room, study space * Pristine condition throughout with not a cent more to spend * Double garage plus private off street and driveway parking * Moments to Double Bay Village shops, cafés and boutiques * Easy access to buses, ferry, harbour beaches and the city
23. The listing was accompanied by two plans. One was a detailed layout plan of the house, showing the dimensions of each room and of the external terrace and balconies. The garage was shown with two cars. The second plan was a site plan showing the position of the lawn, the pool, the cabana, the house, the terrace and the entrance area on the block. Only part of the driveway strip was shown; a break appeared in the diagram to indicate that the area shown was not the complete strip and the site plan was marked "not to scale". The area which was depicted corresponded with the "private parking" area and had three cars on it.
24. Underneath the plans was a notation in the following terms: Scale in metres. Indicative only. Dimensions are approximate. All information contained herein is gathered from sources we believe to be reliable. However we cannot guarantee its accuracy and interested persons should rely on their own enquires [sic]
25. The brochure was in evidence. The advertising copy (which was published in the same form in the brochure) was as follows: Nestled on a sun drenched 980sqm level parcel, this elegant family residence offers a premier indoor/outdoor lifestyle with Cranbrook School and The Scots College within strolling distance. The home takes full advantage of its true north aspect, featuring light filled interiors by Sally Greenaway that flow to a lush garden oasis, swimming pool and outdoor areas for entertaining. Exceptionally peaceful, it includes an abundance of storage plus plentiful parking.
26. The brochure also included the house plan and the site plan, together with the disclaimer.
27. The advertising for the property featured bed, bath and car symbols denoting the number of bedrooms, bathrooms and car parking spaces. The property was shown in all the advertising material (including the websites and the brochure) as having four bedrooms, three bathrooms and two car parking spaces. I infer that the two car parking spaces were intended to represent the garage parking spaces, which were under cover and secure.
28. I am satisfied that Mr Collier saw the "private parking" area in the driveway as a positive selling point for the property, but it was not the most important one. Mr Collier said that the property's most attractive feature was its north facing aspect. He said that such a large area of flat north facing land was relatively rare in Bellevue Hill.
29. This evidence is consistent with the way the property was presented in the marketing undertaken by McGrath. The photographs chosen emphasised this feature. So did the advertising copy. I have already quoted the website copy. The north facing level ground was the first item mentioned and it tied in with the dot points which followed, which also emphasised the quality of the fixtures and finishes used in the house. Parking was the third last matter mentioned; the last two dot points were generic for properties in Bellevue Hill and had minimal significance. The advertising copy in the brochure was shorter. It began by emphasising the northerly aspect and the level area; parking details, by contrast, were not provided and parking was simply described as "plentiful". The advertising copy for the mail-out cards and the signboard, which was shorter still, emphasised the northerly aspect and the quality interiors but did not mention parking at all. The same pattern can be seen in the editorial submissions and magazine advertising copy.
30. I am satisfied that the quality of the house and the flat garden with its northerly aspect were the major selling points for the property. Although the property was advertised on the basis that there was "not a cent more to spend", the potential for putting another bedroom on the first floor (as evidenced by Mr Jewell-Tait's previous development approval) was also a significant factor.
31. The property was to be sold at an auction scheduled for 1 November. The advertising campaign began on Tuesday 7 October. The property was first opened for public inspection on Saturday 11 October. Thereafter, it was to be open for public inspection on Wednesdays and Saturdays. The public inspection time was 11.15am until 12pm.
32. The evidence before me did not include any screen shots of the website listings taken prior to the sale. But an archive version of the listing on the McGrath website is in evidence and it is in the same terms as the copy for website listing which I have quoted above. It also appears that domain.com.au and realestate.com.au maintain the listing after the sale as a record of the sale. A copy of the listing from realestate.com.au in 2016 is in evidence; it has a line recording the sale price but is otherwise the same as the copy prepared by Campaigntrack. I am satisfied that the copy as prepared appeared on all three websites from 7 October 2014 onwards.
33. The Hyders gave evidence that for several months prior to October 2014 they had been actively looking for a new house. Mrs Hyder was monitoring internet sites; she would identify potentially suitable properties and then arrange to inspect them with Mr Hyder. They had already considered a number of luxury properties in the eastern suburbs.
34. Before the marketing of lot 4 commenced, Mr Collier was aware of the Hyders' interest in buying a luxury property. He knew that they had inspected a property in Vaucluse which he was hoping to obtain the agency arrangement for. However, he had not met them or discussed a property with them.
35. Another agent at McGrath at the time was Mr Angus Gorrie. He was a friend of Mr Hyder's brother-in-law. It appears that Mr Gorrie was aware that the Hyders were looking to buy and considered that lot 4 could be suitable for them. On 26 September Mr Gorrie reported to Mr Bordin that Mr Hyder was "keen, coming back to me over the weekend". Mr Gorrie requested the initial inspection which took place on 10 October. Thereafter he drops out of the picture.
36. Neither Mr Hyder nor Mrs Hyder referred to Mr Gorrie's involvement in their evidence. He was not called by either side as a witness. Counsel for Mrs Hyder sought to make something of this, but, in my opinion, it is neutral. The fact is that Mr Gorrie was involved, but neither party has chosen to give any evidence of his involvement and what passed between him and Mr Hyder must remain a mystery.
37. In her affidavit, Mrs Hyder said that she first discovered the property on the domain.com.au website as a new listing. She said this took place "in or about early October 2014". As I am satisfied that the advertising campaign did not begin until 7 October, it cannot have happened prior to that date. Mrs Hyder said she viewed the online material, downloaded and printed off the listing and viewed the video. Mr Hyder said that he also viewed the materials online on both the domain.com.au website and the McGrath website at the time. Mrs Hyder attached to her affidavit what she said was a copy of the brochure, but in fact this was the website listing which Mr Hyder obtained after the event (see [84] below).
38. There is a degree of apparent inconsistency between the suggestion that Mrs Hyder discovered the property by searching on the internet at some point after 7 October and the documentary evidence which establishes that Mr Gorrie was in touch with Mr Hyder about the property as early as 26 September. That apparent inconsistency was not resolved in the evidence. But I see no reason to doubt that Mrs Hyder did in fact view the online material and downloaded some of it at some point after 7 October and before the first inspection.
39. An inspection log for the property maintained by McGrath was in evidence. It records four visits to the property by one or other or both of Mr Hyder and Mrs Hyder. The first visit recorded was a private appointment on Friday 10 October. The visit was logged under "Matthew & Amy Hyder" and was noted "Inspection with Angus Gorrie (McGrath) & Nick Bordin". The second visit was recorded during the first public inspection, on the following day (Saturday 11 October). It was logged under "Matthew and Amy Hyder" and was noted "INTERESTED". The third visit was recorded during the public inspection on the following Saturday, 18 October. It was logged under "Amy and Matthew Hyder" and was noted "Intending on chatting about it tonight". The fourth visit was recorded during the public inspection on Wednesday 22 October. It was logged under "Matthew Hyder".
40. The plaintiff's case as formulated in the Commercial List Statement in April 2016 was that the Hyders visited the property on at least three occasions, the first being when it was open for public inspection and the subsequent occasions being private appointments. On the first inspection Mr Collier or Mr Bordin were alleged to have given the Hyders the brochure. At a subsequent private appointment, Mr Collier was alleged to have orally represented that the "private parking" area was for the exclusive use of lot 4. This was alleged to have happened when Mr Collier, Mr Hyder and Mrs Hyder were standing outside near the "private parking" area. At a subsequent private appointment Mr Bordin was alleged to have made an oral representation to a similar effect, to which Mr Hyder allegedly replied that the spaces could be used by the Hyder's children when they grew up. This was alleged to have happened when Mr Bordin, Mr Hyder and Mrs Hyder were standing near the north-western corner of the pool.
41. Mr Hyder's affidavit, which was sworn in June 2016, stated that he inspected the property on several occasions over a "two and a half week period in October 2014". On only one of the inspections was Mrs Hyder not present; that was an occasion on which Mr Hyder attended with his valuer, Mr Field. Mr Collier was present on each occasion and Mr Bordin on most occasions. Mr Hyder's affidavit gave a description of only one visit. This was as follows: 10. On arrival at the inspection, I observed that there was little-to-no on-street parking for cars within approximately 150 metres of the property. 11. At one point during the inspection, I was standing at the North West corner of the pool, looking back at the house and I was joined by Bordin, where we had a conversation to the following effect: Bordin: "This house has a lot of features." Me: "What about the parking, I looked at the online advertisement and it describes off street parking." Bordin: "Yes, in addition to the garage and the driveway, you also are able to park cars for your use on the right hand side of the shared driveway next to the wall with the signs Private Parking.". 12. On walking out to the front gate of the property, I had a conversation with Amy, Collier and Bordin to the following effect: Collier: "The size of the lot is 980 square metres. This includes the area in front of the front gate. Me: "I noticed it was a fair distance from any on-street parking. There is no parking on Ginahgulla between Victoria and Kambala Rd." Collier: "That's true, it doesn't have a lot of on-street parking however this area is for your exclusive use, so it adds a great deal of value to the property." [Collier then pointed towards the land outside the front gate on the East side of the shared driveway]. Amy: "With our cars, our housekeeper's car, and our guests, we would struggle without it. How long is it?" Collier: "I'm not sure how long it is but I think it will allow for three cars to be parked there." Me: "That works perfectly because one day our three kids will have cars and will need a place to park." 13. Collier immediately proceeded to show us the strip of land he described and pointed to signs which stated "private parking".
42. I think the context suggests that Mr Hyder was referring to his first visit to the property. The observation that there was little or no on-street parking was one which he would have made on the first occasion on which he visited lot 4.
43. Mrs Hyder's affidavit was sworn in August 2016. She said she attended "approximately four" inspections of the property "over a two and a half week period from early October 2014". She said the first visit took place at the first public inspection. On that occasion she was handed the brochure but she and Mr Hyder walked around the property themselves because it was so busy. She said that she saw at the first inspection that there was no on-street parking in Ginahgulla Road. She said the second inspection was a mid-week inspection and she took her mother along to show her the property. The third inspection was the following Saturday and the fourth inspection was a private appointment which she and her husband attended. She said she saw Mr Hyder speaking to Mr Bordin near the pool but had not been involved in that conversation. She gave evidence of the alleged representation by Mr Collier at the private inspection in similar terms to Mr Hyder.
44. There are various inconsistencies between the Commercial List Statement, Mr Hyder's affidavit and Mrs Hyder's affidavit. According to the List Statement, the representations were made on two separate occasions, each of which was a private inspection which post-dated the first visit to the property. Mr Hyder's affidavit placed the alleged representations as having occurred during the same visit, apparently being the first occasion on which he visited the property. Mrs Hyder's affidavit likewise placed the representations as happening during the same visit.
45. There are also inconsistencies between the Hyders' evidence and the log. The log shows that the first visit was in fact a private appointment with Mr Bordin and Mr Gorrie. It is common ground that Mr Collier was not present on this occasion. The log also does not refer to a mid-week visit by Mrs Hyder (the only mid-week visit recorded being Mr Hyder's visit with the valuer on 22 October). Nor does the log refer to any other private appointments after the first visit on 10 October. Under cross-examination Mr Hyder said that there had in fact been five visits, the four referred to in the log and a fifth visit. He said the fifth visit was a private appointment which had taken place mid-week, between the public inspections on Saturday 11 and Saturday 18 October. He said that it was at this visit that the alleged representations were made. He could remember nothing more to fix the particular occasion. He could not even recall whether the visit took place during the daytime or at night. Mrs Hyder, under cross-examination, recalled going to a number of open inspections and at least one private inspection. She said the private inspection was after the public inspections and that Mr Collier and Mr Bordin were present on that occasion. She could not recall a private inspection with Mr Bordin and Mr Gorrie and when asked about 10 October said it was "a bit of a blur". She also said that she "definitely" attended a mid-week inspection with her mother on the Wednesday, and thought it was between the public inspections of the 11th and the 18th (being the 15th).
46. Counsel for the plaintiff contended that I should accept Mr Hyder's evidence of a fifth visit to the property, albeit that it was not referred to in the log. In cross-examination, Mr Collier conceded that it was possible that such a visit might have taken place. But Mr Bordin's evidence was that efforts were made to ensure that the log contained a complete record of the visits to the property by prospective purchasers; he said that it was McGrath's practice to discuss the log with the vendors, and it was important that it was complete for this reason.
47. Following the hearing, the Microsoft Outlook electronic diaries maintained for Mr Collier and Mr Bordin while they were with McGrath were produced, tendered, and made the subject of supplementary written submissions by the parties. Not all of the visits referred to in the log were reflected in the calendars. Counsel for the plaintiff submitted that this supported the contention that the log was incomplete. I cannot agree. Certainly, the calendars appear to have been maintained primarily as an advance reminder of meetings which had been planned, and therefore would not necessarily include meetings convened at short notice. But this provides no reason for thinking that the log which was prepared afterwards was incomplete. The log was prepared for another purpose, namely as a record of events that had happened. There is nothing at all surprising about the calendar not recording all of the events in the log. But it does not in any way follow that the log itself is necessarily incomplete.
48. Accordingly, I am not satisfied that there was a fifth inspection as Mr Hyder and Mrs Hyder claimed. It follows that any representations must have been made by Mr Bordin alone (at the private appointment on 10 October) or by Mr Collier or Mr Bordin in the course of public inspections on 11 or 18 October (it was not suggested that any representations would have been made at the final visit on 22 October, which appears to have been solely for the valuer to see the property).
49. As I have mentioned, I see no reason to doubt that before they first visited the property the Hyders viewed the website material. Mrs Hyder may have printed it out to show Mr Hyder, although there is no evidence that they retained it thereafter or went back to it. I also accept that the Hyders were provided with a copy of the sales brochure at the first public inspection on 11 October.
50. Mr Collier and Mr Bordin both accepted that they could have referred to the "private parking" area as an area for the exclusive use of the owners of lot 4. This was what they actually believed at the time, although neither of them could recall making any such statement to the Hyders. However, Mr Collier did not accept that he would have referred to the "private parking" area as adding value to the property. His view was that it added convenience rather than value. What Mr Collier did recall about the property was that there were only three bedrooms on the first floor and he thought it might be difficult to obtain the price which Mr Jewell-Tait wanted with only three first floor bedrooms. Mr Bordin recalled discussing with Mr Hyder the possibility of the Hyders reactivating the application which had been allowed to lapse.
51. As already mentioned, I do not accept the Hyders' account of when the relevant visits took place. Nevertheless, I am prepared to accept that Mr Collier or Mr Bordin said to Mr Hyder at one point words to the effect that the "private parking" area was exclusive to lot 4. I am not persuaded that Mr Hyder or Mrs Hyder correctly recalled the context of the conversations in their affidavits or their oral evidence; in particular, I do not accept that Mr Collier said that the "private parking" area added value to the property. However, it was a selling point for the property even if, in my finding, it was not the most important one. It would have been natural for Mr Collier or Mr Bordin, had the issue been touched on, to have reminded the Hyders of this feature, especially as it was specifically referred to in the advertising copy.
52. A copy of the sale contract as prepared by Mr Jewell-Tait's solicitors was available to be looked at during the public inspections of the property. But, in order to obtain one's own copy of the contract, it was necessary to ask McGrath. Mr Hyder did in fact obtain a copy of the contract in electronic form from McGrath. There was no evidence to fix exactly when this happened. According to Mr Hyder's recollection, it would have been in the week between Saturday 11 and Saturday 18 October.
53. Mr Hyder decided to obtain a valuation from a Mr Jason Field, a valuer with whom he had previously dealt. On the morning of Tuesday 21 October Mr Field agreed to undertake the valuation. It was arranged that Mr Field would visit the property with Mr Hyder when it was open for inspection the following day, Wednesday 22 October.
54. Mr Hyder said he did not read the contract when he first got it from McGrath. On 22 October at 6.38am he sent an email to his solicitor, Mr Ross Neville of Neville & Hourn Legal. The email (which was copied to Mrs Hyder) stated: Please see attached contract for a house we are looking to make an offer on. … We are weighing up if we should make an offer prior to auction or wait for the auction. If we go with the former, we will be doing this tomorrow afternoon. I will fill in the settlement date, price and whether we are putting a 5 or 10% deposit. If we want the ability to submit a DA prior to settlement, please write back with the language to be added (special conditions?) to allow for this.
55. At 12.34pm Mr Neville responded in an email sent to both Mr Hyder and Mrs Hyder. The email stated: I've reviewed the Ginahgulla Road contract. No major concerns except we do need to address point 13 below. In detail - …
56. There then followed fourteen points. Point 8 was: The title records 2 easements that are basically dual facets of a single arrangement. The block of land is of the type known as "battle axe" with the "handle" (known in Texas as the "panhandle") being the driveway to the street. Your strip of land to the street is 2.44 metres wide. Next to that are 2 more parallel strips both 2.44 metres wide owned by lots 6 and 7. Your strip has a right of way benefitting lots 6 and 7. It also has a right of way to use the 2 strips belonging to lots 6 and 7. So there is a common driveway 7.32 metres wide.
57. Point 13 noted that the house (and probably the pool) had been built over the sewer line.
58. Both Mr Hyder and Mrs Hyder referred to this aspect of Mr Neville's advice in their affidavits. Mr Hyder said that the advice "did not cause me to question what I had been told about the use of the strip". Mrs Hyder's evidence was in almost the same terms.
59. The cross-examination of Mrs Hyder demonstrated that her evidence on this subject was incorrect. In fact, she could not recall reading the advice at all. Consistently with her approach to the purchase, she may well have left it to Mr Hyder and I am not satisfied that she did actually read the advice. If she did read it, that was irrelevant because she did nothing in reliance on it. Insofar as her affidavit sought to convey the impression that she had read and considered the advice, it was wrong, and she should have realised when swearing the affidavit that it was wrong.
60. Mr Hyder's evidence was that he left legal issues raised by the contract to his solicitor, apparently treating them as peripheral. He said that once he appreciated from the first line of the email that there were no major issues, he would only have scanned the points in the email. He did not trouble himself to consider the implications, if any, of the right of way referred to in point 8.
61. Mr Field sent his report to Mr Hyder at 12.36pm on 23 October. The report valued lot 4 at $10 million. It appears that Mr Field then rapidly had second thoughts. Within a couple of hours he produced a further version of the report which was otherwise unchanged but valued the property at $9 million.
62. At 2.42pm Mr Field sent a further email to Mr Hyder which stated (emphasis in original): As discussed, I have revised my valuation figure down to $9,000,000. Please completely disregard the original valuation which was issued to you. Could you please confirm that you have received the amended (second) report which has been emailed to you.
63. Mr Hyder provided the confirmation seven minutes later, at 2.49pm.
64. The report stated under the heading "Land": The site comprises a battle axe parcel of land, which has a shared driveway, is irregular in configuration, and encompasses an area of approximately 980 square metres. The site features a relatively level north facing rear yard which we understand was designed by William Dangar, and this is an attractive attribute. The property features a right of way which provides open parking for up to four cars, tandem style.
65. The heading "Features" contained, among others, the following dot points: ● Right of way which provides additional parking for up to 4 cars tandem style. ● Double garage with internal access. ● Additional two open car spaces in front.
66. Mrs Hyder's evidence was that she read Mr Field's report, but I doubt whether this is correct, and, even if it is, she did nothing in reliance on it. Mr Hyder said that he did read the section headed "Land" but not the section headed "Features". Although the section headed "Land" referred to a right of way, Mr Hyder appears not to have considered whether that had any implications for use of the driveway. All he was interested in was the value.
67. Counsel for the defendant cross-examined Mr Hyder on his expertise in property development. Mr Hyder has more than 15 years' experience in the property development field. He began as a financial analyst for an investment bank on property deals. He worked for a property development company in Texas and subsequently established a business known as Legacy Property in Sydney. Mr Hyder is the chief executive of that business.
68. Counsel suggested that with this level of experience, it was surprising to think Mr Hyder would not have appreciated the effect of the right of way. Obviously, the existence or otherwise of easements which benefit or burden a property can be a significant factor in the development of that property. But Mr Hyder's background in property development appears to be on the financial side. I do not find it implausible that Mr Hyder would delegate the identification of such issues to others or that he may not in his previous experience have had direct experience of investigating such questions. Mr Hyder would of course be well aware of what a right of way is, but I accept that if he read the references to rights of way at all, he did not consciously consider the impact which such rights of way might have had on the use of the "private parking" area. Whether this was a reasonable or sufficiently careful approach is a separate question which I consider below.
69. The contract as signed was dated 23 October 2014. Mrs Hyder's name as purchaser and Mr Neville's details as solicitor were written on the contract in handwriting. The price was initially written on the contact in handwriting as $9 million and the deposit and balance calculated accordingly. Those figures were crossed out and replaced with a handwritten purchase price of $9.4 million. The completion date was also varied from 21 December 2014 to 24 February 2015. Handwritten amendments were made to some of the special conditions and Mrs Hyder's tax file number details were appended in handwriting to the clause dealing with investment of the deposit. The development application clause as prepared by Mr Neville was added as a separate page to the special conditions. The contract was signed on the front page by Mrs Hyder and her initials appear against the altered purchase price.
70. Mr Hyder's evidence was that he made all of the handwritten insertions and amendments to the document. He said that after considering Mr Field's valuation he decided to make an offer by submitting a completed counterpart of the sale contract. He filled out the purchase price at $9 million, made the other amendments by hand and obtained Mrs Hyder's signature on the document. He then delivered it to Mr Collier at McGrath's office in the eastern suburbs. Later that afternoon Mr Collier rang Mr Hyder. Mr Collier said that the figure offered would not be enough. Mr Hyder offered to increase the purchase price to $9.2 million and Mr Collier said he would seek instructions.
71. The Hyders were attending a charity event at Darling Harbour that evening. In the course of the event, Mr Collier and Mr Hyder spoke. Mr Collier said that $9.2 million was still not enough. Mr Hyder then increased the offer to $9.4 million which was accepted. Mr Collier then drove to Darling Harbour and Mr Hyder amended the purchase price, the deposit and the balance and had Mrs Hyder initial the amended purchase price figure.
72. Following the exchange of contracts, the Hyders made a number of visits to the property, some with their children and one with their interior designer. For the purposes of the purchase, Mr Hyder obtained external finance, and the financiers instructed Mr Andrew Parkinson, a certified valuer, of Ponton Valuations and Consultancy Pty Ltd, to value the property. Mr Parkinson issued a report on 28 January 2015. He valued the property at $9.4 million.
73. Following the settlement of purchase in February 2015, the Hyders did not move in immediately. Instead, they conducted extensive renovations to the property, including the construction of a fourth bedroom upstairs above the garage. It was not until December 2015 that they moved in; but soon afterwards they went away for a period of six weeks or so on holiday.
74. In February 2016 renovation works were being done at one of the adjoining lots (lot 5). The workmen were parking their trucks in the "private parking" area. Mr Hyder raised this with the owner of lot 5, who responded that the whole area was a right of way. Mr Hyder sought advice from Mr Neville. At 9.51am on 18 February, Mr Neville emailed Mr Hyder: Further to our telephone discussions this morning, please find attached - 1. Search of the title to lot 11 in Deposited Plan 1078038. 2. Search of Deposited Plan 1078038. The recording on the title of dealing H478434 gives lot 11 the right to use all 3 strips of land shown on your survey, being the areas marked (A) and (B) owned by you, and the area marked (C) owned by lots 6 and 7. As I indicated, it is strictly speaking for driving or walking over to get from the street to the property, rather than for parking. Lot 11 is substantially the same land as the prior lot 5 in your Deposited Plan 30439. I haven't incurred the additional fees by searching back from the lot 11 title, because there was at least one subdivision between Deposited Plan 30439 and Deposited Plan 1078038, but there is no doubt about the land location and no doubt about lot 11's right to use the 3 strips of land. If you have any queries please let me know.
75. On 29 February, Mr Hyder sent a further email to Mr Neville. He attached a downloaded copy of the listing for lot 4 (in its post-sale form) from realestate.com.au and said (emphasis in original): Ross, could you have a look at the attached please. If you notice, the agent showed three cars parked in the ROW which according to the survey is illegal, furthermore they indicated in the text, "Double garage plus private off street and driveway parking".
76. Prior to 18 February, the Hyders had had no difficulty in using the "private parking" area for visitors to the property, but of course they had only been living there for a period of a few weeks. According to Mr Hyder, the construction work is continuing. Mr Hyder's evidence is that, although he could, by enforcing lot 4's rights strictly, prevent the owners of lot 5 from parking in the "private parking" area, he has chosen not to do so. In this, Mr Hyder is taking the obviously sensible approach of seeking to maintain good relations with his neighbours. No doubt he hopes that once the construction work is completed the "private parking" area will again become available.

Misleading or deceptive conduct

1. I have found that both in the website listings and through oral statements made by Mr Collier or Mr Bordin, McGrath drew attention to the "private parking" area at lot 4. Counsel for McGrath, however, submitted that this was not necessarily misleading or deceptive. Counsel argued that, in substance, any representation about entitlement to park in the "private parking" area was a representation of law, and hence of opinion. In this regard, counsel relied on the approach of Heydon J in Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486.
2. I accept that the existence or otherwise of legal rights or liabilities is ultimately a question of law. However, I do not think that on the current state of authority it is open to me to take the approach that any statement concerning the subsistence or otherwise of legal rights and obligations is necessarily a matter of opinion which can only be falsified by demonstrating that the opinion is not genuinely held or, perhaps, that it is not reasonably based. One difficulty is that a statement of the legal position is not necessarily and exclusively a statement of opinion. A statement of a legal position may contain an implication of fact. For instance, a statement that X owes me $1,000 is a statement of a legal conclusion and, as such, whether it is right or wrong is a legal question. However, in many contexts such a statement would carry with it the implication that I have given X $1,000; that he had agreed to repay me; and that he had failed to do so. More importantly, Heydon J's view did not represent the majority opinion in Forrest v ASIC. The other members of the Court, in a joint judgment said that (at 505 [33]): … it is ultimately unprofitable to attempt to classify the statement according to some taxonomy, no matter whether that taxonomy adopts as its relevant classes fact and opinion, fact and law, or some mixture of these classes. It is necessary instead to examine more closely and identify more precisely what it is that the impugned statements conveyed to their audience.
3. The website copy (quoted at [31] above) described the property as having in addition to a double garage "private off street and driveway parking". The reference to "driveway parking" was clearly a reference to the "private parking" area. By describing the driveway parking as "private", the website copy was, in my opinion, conveying to the ordinary reasonable reader that the area was exclusively for the use of the owners of lot 4. The same impression was conveyed pictorially by the placement of parked car symbols on the "private parking" area in the diagram which appeared on the website and also in the brochure (see [32] and [35] above). The oral representation which I have found was made (see [60] above) was to the same effect. While the exclusivity of the area is ultimately a question of law, the representations contained nothing to suggest that exclusivity in this case depended upon the interpretation of easements over the property or some other potentially controversial legal question. In fact, the easements were not disclosed at all. In my opinion, the ordinary reasonable person to whom such representations were made would not have seen them as involving any question of opinion.
4. Counsel for the defendant pointed out that the "private parking" area is on land which belongs to lot 4. Accordingly, the owners of lot 4 are entitled to treat the land as their own except to the extent that this substantially interferes with the rights of carriageway granted to the other two lots. Counsel submitted, by reference to the decision of Brereton J in Trewin v Felton (2007) 13 BPR 24,579, that it would be open to the Hyders to use the "private parking" area for their own parking so long as arrangements were made to allow the cars to be moved in the event that that was necessary. Counsel suggested that such arrangements might entail no more than moving the cars on request, if access was needed for a vehicle which was too wide to pass along the rest of the driveway.
5. It is, of course, correct that the owners of lot 4 are entitled to use the "private parking" area to the extent that this does not present an unreasonable interference with the rights of carriageway of the other two lots over that area and that, given the width of the driveway, it would usually be possible, if no other cars were parked in it, for cars travelling to the other two lots to get past. For this reason, it is easy to see how the idea appears to have grown up that the area was exclusively for parking for lot 4. But the difficulty is that lot 4 has no greater right over the use of the driveway than either of the other lots. If the owners of lot 4 were entitled to appropriate one-third of the driveway area to themselves, except where a vehicle which is too wide to pass down the other two-thirds of the area needs to get past, then each of the owners of the other lots should be entitled to do the same with their "handle" strip, and that would be unworkable. In my opinion, the effect of the various easement and cross easements over the driveway area is to give the three lot owners equivalent rights over the whole area. It is no doubt open to the lot owners to park in the "private parking" area where that does not interfere with access to the properties served by the driveway. But, in my view, the owners of lot 4 have no greater legal right to park there than any other lot owner. Even if in practice the other lot owners may have tolerated the appropriation of the area by the owners of lot 4, its description as a "private parking" area was still misleading and deceptive.
6. Counsel for the defendant also suggested that McGrath was a "mere conduit" and that the representations should be seen as coming from the vendors of the property. In fact, it does appear that McGrath got the idea that the "private parking" area was exclusive to the owners of lot 4 from the signs or from being told by Mr Jewell-Tait. But there was nothing in the representations to suggest that they came from a third party and McGrath was merely passing them on for what they were worth: cf Yorke v Lucas (1985) 158 CLR 661 at 666. The representations about the "private parking" area would, in my opinion, have been understood by a reasonable representee to have come from McGrath.
7. Counsel for McGrath also relied on the disclaimer which I have quoted at [33] above. But I do not think that the language of the disclaimer is sufficient to deprive McGrath's statements of their misleading and deceptive quality. The language of the disclaimer would naturally be understood as relating to boundaries. It does not deal with the use of the land at all. In my opinion, a reasonable reader would not see the disclaimer as undermining the representation of exclusivity which arose from the placement of the cars on the diagram.

Causation

1. Based on the findings I have made so far, I am satisfied that when the property was purchased, both Mr and Mrs Hyder believed that the "private parking" area was exclusively for the use of lot 4. This was an impression which was apt to be conveyed by the sign itself as well as by the statements made by McGrath to which I have referred.
2. The question is whether, had McGrath not engaged in the conduct which I have found to be misleading or deceptive, Mr Hyder would have ended up purchasing the property in Mrs Hyder's name.
3. The question depends upon the subjective state of the Hyders' minds, not the attitude of the reasonable and ordinary purchaser. However, in evaluating how the Hyders would have reacted had they been told that the "private parking" area was not exclusively for the owners of lot 4, it is relevant to note that neither Mr Collier, who handled the sale for McGrath (see [37] above), nor the expert valuers who gave evidence in these proceedings (see [111]-[113] below) attributed any great value to such exclusivity.
4. Mr and Mrs Hyder both gave evidence that the parking for the property was a matter which was significant to them. They said they were looking for sufficient parking for their own cars, for their cleaner and also for their children for when they grew up and start to drive. However, at the time the Hyders' eldest child was only eight years old.
5. As presented in these proceedings, the plaintiff's case is a "no transaction case". It was not suggested that had the Hyders appreciated the correct position they would have offered less for the property. Indeed, Mr Jewell-Tait's evidence was that if the Hyders had not been prepared to pay $9.4 million he would have taken the property to auction. Accordingly, it is necessary for the Hyders to establish that had they correctly understood the parking position, they would either not have considered the property at all, or, at least, would not have been prepared to offer $9.4 million for it.
6. I accept that the parking was a positive factor for the Hyders. However, the evidence does not establish that it was essential that they have five car parking places. Mrs Hyder's evidence was that in conducting her internet searches she made it a requirement that the property have parking, but did not specify any particular number of car parking spaces which the property had to have. I think that if the parking entitlements of the property had been accurately stated in McGrath's advertising, they would have made the property somewhat less attractive but would not have prevented the Hyders from considering it.
7. The question thus reduces to whether Mr Hyder would not have made the offer he made to purchase the property had he understood the parking position correctly. There was little evidence which bore directly on this question. The Hyders said that they had considered a number of properties, some of which had more parking than the subject property, but had not proceeded with the purchase of those other properties. Mrs Hyder also stated that there was no particular urgency in acquiring the property and denied the fact that one of her children's attendance at the nearby Scots College was a relevant factor in the purchase. But there was no evidence as to the particular reasons why the Hyders had rejected the other properties.
8. Nor was there any evidence as to the specific factors which the Hyders found attractive about lot 4 which might have allowed the Court to weigh those factors against a correct understanding of the parking available. What is clear is that Mr Hyder appreciated that he was paying more for the property than it was worth, according to the valuation that he had obtained. When asked about why he did this he said: Because my wife loved the property.
9. In these circumstances, I am not satisfied that a correct understanding of the parking available at lot 4 would have made a crucial difference to Mr Hyder. It appears to me that the real reason why Mr Hyder bought the property is because of Mrs Hyder's emotional reaction to it. That emotional reaction would have derived from features such as its aspect and its potential as a family home rather than the number of parking spaces. It must be remembered that the "private parking" area was not, and was not represented to be, equivalent to garage parking: it was not under cover and it was not secure. It must also be remembered that the area is of some utility to the owners of lot 4 for parking even if they do not have rights which exclude the other lot owners. The exclusive right to park in the area may have been perceived as an advantage, but I am not satisfied that it was perceived as a sufficiently great advantage to make a difference to the purchase. It seems to me to be at least equally, if not more, likely that had the Hyders correctly appreciated the position they would still have gone ahead because of other features of the property which they found attractive.
10. In the light of this conclusion, questions of quantum of loss and apportionment do not arise. However, I will proceed to consider them in case I am wrong in the views that I reached to this point.

Loss

1. The plaintiff qualified Mr Peter Kempthorne of Rawlinsons Corporate Real Estate as her expert valuer. The defendant qualified Mr Gregory Rowe of Preston Rowe Paterson as its expert valuer. Mr Kempthorne and Mr Rowe both prepared their own reports, attended a conclave and then produced a joint report. They gave their evidence concurrently before me.
2. Mr Kempthorne valued the property at $8.5 million. Mr Rowe's opinion was that the fair market value of the property ranged from $9 million to $9.5 million and, accordingly, the price of $9.4 million was "considered to represent fair market price in the circumstances".
3. All of the valuers used what they described as the "direct comparison" method of valuation as their primary method of determining the value of the property at the time. Mr Kempthorne used an alternative method by way of check, but it was agreed in the course of the concurrent evidence that this could be put aside and, accordingly, it was not necessary to determine Mr Rowe's objection to that method.
4. The direct comparison method involves determining value by reference to comparable sales. In the case of the property in question, that presented a difficulty. At any one time, there are not many properties being sold in Sydney's eastern suburbs for more than $8 million. Both Mr Kempthorne and Mr Rowe thought that there would be fewer than 20 or so. Properties which command such a price vary in their land area, views, aspect, and the size and quality of the dwelling. Accordingly, finding properties which are directly comparable with the subject property is less easy than in areas where land dimensions or building types are more standardised. Both experts referred to emotion playing a role in purchases and a similar point was made in Mr Field's report. I take this to mean that in a relatively thin and high value market, emotional decision-making can have a greater effect on prices paid and that this increases the difficulty in determining what a particular property will sell for.
5. In the present case, Mr Kempthorne and Mr Rowe each selected a list of comparable 2014 sales. There was a degree of overlap between their lists; four properties appeared on both. Both Mr Kempthorne and Mr Rowe agreed that the most comparable sale was that of a nearby property in Kambala Road, Bellevue Hill, which sold in September 2014 for $8.3 million. The land area is 923m2 which compares with 980m2 for lot 4 (although, of that, the driveway strip represents 84m2). The Kambala Road property has five bedrooms and it is a west facing aspect which includes skyline views of the city. Both experts identified features of this property which they thought were superior to lot 4 and features they thought which were inferior. Both experts regarded lot 4 as, overall, being superior to the Kambala Road property. The dispute between them was simply how much more that overall superiority was worth.
6. Mr Kempthorne sought to present the comparison in numerical terms. He adopted a system whereby adjustment percentages were applied to the 2014 sale prices of the comparable properties to produce a series of adjusted values. The average of these adjusted values produced the $8.5 million valuation for lot 4. The total adjustment percentage for a particular property was the sum of adjustment percentages allocated to various features (described as 'adjustment items') of that property. A feature received a negative adjustment percentage if it was regarded as being superior to the corresponding feature of lot 4 and a positive adjustment percentage if it was regarded as being inferior. For instance, the "quality of accommodation" and "quality of fixtures and fittings" features of the Kambala Road property were each adjusted by +5% while the "size of improvements" feature was adjusted -3%. The total adjustment percentage for the Kambala Road property was +2.5%, which indicated that, overall, it was "marginally inferior" (thus the sale price of the Kambala Road property was increased 2.5% to produce its adjusted value).
7. For his part, Mr Rowe did not use a numerical approach. Rather, he provided an overview of the comparability of select features. For instance, the Kambala Road property was said to have "inferior topography", "superior views and outlook" and "inferior aspect". The cumulative result of Mr Rowe's inferior/superior classification of the selected features led to it being "overall considered inferior" to lot 4. Mr Rowe used this system of classification of comparable properties to identify the appropriate market range for lot 4, which was said to be between $9 and $9.5 million at the relevant time. Mr Rowe said, under cross-examination, that he considered the Kambala Road property to have a greater degree of inferiority than Mr Kempthorne did.
8. Both experts also addressed parking as part of the comparison. Both ignored any parking on the "private parking" area in valuing lot 4. In his report, Mr Rowe described the Kambala Road property as having a tandem lock-up garage for two vehicles and no other off street parking. His report also said that there was "street parking availability". His conclusion was that it had "[i]nferior car accommodation" compared to lot 4. Mr Kempthorne, however, regarded the parking at the Kambala Road property as superior. He attributed an adjustment percentage of -0.5% to "availability of on-street parking" and ‑0.5% to "availability of additional parking on the property". This is difficult to understand when lot 4 had some space in the courtyard area as well as a double garage. But, in any event, these scores were overwhelmed by other features, such as "quality of accommodation" and "quality of fixtures and fittings", which, as I have mentioned, were both attributed adjustment percentages of +5%.
9. Ignoring the "private parking" area entirely, as Mr Kempthorne and Mr Rowe did, involved a degree of over-simplification. While the area is not exclusive as against the other lot owners, it certainly cannot be used by members of the public. It contains spaces for three cars and, assuming equal access by all lot owners, could be considered as roughly equivalent to one dedicated car park, albeit outside and not secure. In practice, it appears that the other lots have sufficient enclosed parking and the owners of lot 4 may on average get more than one car parking space from it. In theory, one would expect that this would have some value. In cross-examination, Mr Rowe and Mr Kempthorne were asked to make the assumption that there was something akin to street parking at lot 4, available on a first-come first-serve basis but restricted to the properties with the benefit of the driveway, and whether that would affect the value of lot 4. Mr Kempthorne said he did not think it would add any extra value while Mr Rowe said it could be a minor positive. I then asked Mr Kempthorne and Mr Rowe whether they have valued a property that has something better than street parking, but worse than private or exclusive parking. Mr Kempthorne said he did not think there would be an adjustment in price without exclusivity. Counsel for McGrath also put to the experts an analogy with visitor parking in a unit block, with spaces available to visitors but not to any particular visitor. Mr Kempthorne said he had not valued properties of this nature and Mr Rowe said he would not specifically ascribe any value to the availability of visitor parking. The evidence, therefore, does not permit any numerical value to be placed on the exclusivity of the "private parking" area.
10. The defendant called Mr Parkinson to give evidence in support of his $9.4 million mortgage valuation (see [81] above). Mr Parkinson's report was accepted as an expert opinion but he did not participate in the formal procedures applicable to expert evidence and was not involved in the conclave; he was separately cross-examined by counsel for the plaintiff. In addition, the second report of Mr Field (see [70] above), valuing the property at $9 million, was tendered by the defendant as an expert opinion without objection from the plaintiff. Mr Field was not called to give evidence.
11. It was common ground that Mr Field's report had assumed that lot 4 had an exclusive right to park cars in the "private parking" area. There was a debate about whether Mr Parkinson had made the same assumption. In cross-examination, he maintained that he had not. However, I think the wording of his report is clear and I found his attempts to maintain to the contrary unconvincing. In my view, Mr Parkinson's report was also undertaken on the assumption that lot 4 had an exclusive right to park cars in the "private parking" area. But given the difficulty in attributing any value to exclusivity, the incorrect assumption would appear to make little or no difference.
12. Mr Parkinson's report said that he had "regard" to the Kambala Road property, but it was not explored in the report. According to the report, those details were "retained on file". He was not asked any questions about this in cross-examination. Mr Field's report did not refer to the Kambala Road property at all and did not explore matters to the same level of detail as the other expert reports. As I have said, his evidence was not tested orally. In my opinion, these factors, along with their lack of participation in the conclave, mean that Mr Parkinson's and Mr Field's evidence is of limited value.
13. I was impressed with both of Mr Rowe's and Mr Kempthorne's evidence. Neither of them was really challenged nor was one methodology shown to be more accurate or reliable than the other. I also do not think that the exercise of comparing different features of different properties can be reduced to a mathematical formula. I was left with the clear impression that the evaluation of the degree of superiority was very much a matter of judgment based on the experience of the expert. This is supported by the differences in opinion with respect to the parking at the Kambala Road property, with Mr Rowe and Mr Kempthorne coming to opposite conclusions as to its relative superiority/inferiority. Ultimately, I am not able, on the evidence before me, to form any view that one or other approach is to be preferred. Accordingly, I cannot be satisfied that the lower value for lot 4 put forward by Mr Kempthorne is necessarily correct.
14. Counsel for the defendant urged me to accept that, because the actual sale price of the property fell within the range of reasonable prices nominated by Mr Rowe, that the plaintiff had failed to establish any loss. As I understood the argument, counsel's contention was that the plaintiff needed to establish not only that there was loss but also the quantum of loss; and that if all that could be said was that the true value of lot 4 fell within a range which included the purchase price then the plaintiff had failed to discharge this onus.
15. Tempting as this argument is, I do not think I should accept it. Valuation evidence of the type presented in this case is of course theoretical. It assumes a sale when in fact no sale took place. It is obvious that if a sale had in fact taken place on the relevant day, the price which the property fetched cannot be known with certainty; all that can be done is to give an estimate. In that sense, it is understandable that Mr Rowe presented a range of possible figures. But however much abstraction is involved, the Court is required to seek to assess damages in the best way that it can. I do not think that the fact that the damages cannot be precisely determined should put the Court in a position where it is unable to make a finding at all. Mr Rowe accepted that if he had to choose a single figure to represent the most likely price on a hypothetical sale, he would have chosen the middle figure of his range, and, in my opinion, that is the figure which I should use for the purposes of assessment of loss. On this view, Mr Rowe's figure for the market value of the property at the relevant date is $9.25 million. Although I cannot accept Mr Kempthorne's lower figure in preference to Mr Rowe's, I can conclude that the damages were at least $150,000. Accordingly, had I found it necessary to assess this head of damages, I would have assessed it at $150,000.
16. The plaintiff also claimed the transaction costs associated with the purchase. It seems to me that it would be unrealistic to allow the plaintiff the full transaction cost. The fact is that the Hyders were looking at other properties and had they not purchased this property then they would have purchased some other property. That other property might have cost more or less and the stamp duty and other transaction costs associated might in fact have been greater. In the circumstances, I think the proper approach would be to allow stamp duty on the excess purchase price ($150,000). I would not make any allowance for additional legal costs because there is no evidence that they would have been affected by the quantum of the sale.

Apportionment

1. Initially, the defendant contended that Mr Neville, Mr Hyder's solicitor, was a concurrent wrongdoer. The contention that Mr Neville had been negligent in failing to give more extensive advice about the effect of the easements on the "private parking" area was not ultimately pursued. The defendant, however, contended that the Hyders had been contributorily negligent in connection with the purchase.
2. To my mind, a significant feature of this case is that McGrath was acting as agent for Mr Jewell-Tait at all relevant times. Mr Jewell-Tait, as vendor, was legally responsible for the misrepresentations which I have found McGrath made in the course of its agency. Mr Jewell-Tait was also legally responsible for the "private parking" signs which made the same misrepresentation, and which the Hyders apparently saw and relied upon. Although this is not relevant to McGrath's legal liability, Mr Jewell-Tait appears in fact to have been the source of McGrath's misrepresentation, given that it was he who apparently told McGrath of the "private parking" area. An action for contravention of s 18 might not be available (see Williams v Pisano cited below) but that would not prevent a common law action for misrepresentation. Yet the Hyders have not sued Mr Jewell-Tait and the reason why is fairly obvious: any such action would be defeated by the disclosure in the contract of the rights of way over the "private parking" area, coupled with the disclaimers in special conditions 9.4 and 9.5.
3. The case, therefore, presents the somewhat paradoxical spectacle of a purchaser who is unable (or at least unwilling) to sue the vendor but, nevertheless, sues the vendor's agent for actions taken by the agent on behalf of the vendor. It was not suggested by McGrath that these considerations affected McGrath's liability. In particular, it was not argued that, because of the domestic context of the sale, the actions of McGrath as agent of the vendor were not "in trade or commerce": Williams v Pisano (2015) 90 NSWLR 342 at 349 [38]. Nor was it argued that the misleading or deceptive nature of what was said by McGrath had to be evaluated in the context of the disclaimers in special conditions 9.4 and 9.5. But, in my opinion, the considerations are relevant to the question of apportionment.
4. I have found that McGrath's conduct was misleading and deceptive. But that conduct does not provide the whole of the explanation for how the Hyders came to acquire the property. There was no immediate relationship between the conduct and the loss. Rather, McGrath's conduct brought the Hyders into contractual negotiations with the vendor, which in turn led to the Hyders acquiring the property under a contract which left them with no recourse against the vendor for the misunderstanding the vendor (by his agent) had engendered.
5. If I had been of the view that the Hyders' loss was caused by misleading or deceptive conduct by McGrath, I would have concluded that it was also caused by the Hyders' failure to take reasonable care in their own interests in conducting their pre-contractual enquiries and negotiations. This was not the responsibility of Mr Neville. His advice on the easements was sound so far as it went. But he was not asked to consider whether cars could be parked in the "private parking" area. The terms of special conditions 9.4 and 9.5 were a clear warning to the purchaser. From the instructions Mr Hyder gave to Mr Neville (quoted at [63] above) and the insertions and amendments he made to the contract (see [78]-[79] above) it appears likely that Mr Hyder would have read the special conditions. If he did not, he should have.
6. Furthermore, the right of way was clearly disclosed in the title search annexed to the contract and the relevant Memoranda of Transfer were also annexed. Both Mr Neville and Mr Field expressly reported that the driveway was subject to a right of way, but Mr Hyder did not stop to think about the implications of this. Although I have accepted that Mr Hyder may not have had detailed knowledge or experience in dealing with easements, one does not have to be an expert to appreciate that a right of way can interfere with the use of land.
7. In my opinion, a reasonable purchaser of property, particularly of this value, who was purchasing because of supposed rights to park in the "private parking" area would have sought specific advice on his entitlement to do so. Had, contrary to my view, the evidence established that this was of critical importance to the Hyders, then, in my opinion, reasonable care for their own interests demanded that they should have obtained specific advice on the question from Mr Neville. Had they done so, I am satisfied that the correct position would have become clear to them, namely, that although in practice they might use the area for parking, they had no absolute right to park there at any and all times.
8. In my opinion, such a failure by the Hyders to take reasonable care for their own interests was a more immediate cause of their loss than the misleading and deceptive conduct of McGrath. I would have reduced any damages by two-thirds to take account of this.

Conclusions and orders

1. For these reasons, I have concluded that: (1) McGrath represented that the "private parking" area was exclusively for the use of lot 4, and this representation was misleading and deceptive; (2) the plaintiff has failed to show that if these representations had not been made, she would not have purchased the property, and accordingly the plaintiff has failed to demonstrate an entitlement to damages; and (3) had the plaintiff succeeded on causation, I would have assessed the damages at $150,000 plus stamp duty, but discounted those damages by two-thirds on account of contributory negligence on the part of the plaintiff.
2. I see no reason why costs should not follow the event. But I will grant liberty to both parties to apply should they seek any different costs order.
3. The orders of the Court are as follows:
4. Order that the proceedings be dismissed.
5. Order that the plaintiff pay the defendant's costs.
6. Grant liberty to the parties to apply with respect to costs, such liberty to be exercised within 14 days of today's date.

Annexure DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2017