JJJP Properties Pty Ltd v Colin Peacock & Ors [2024] VCC 471

Third issue for trial: Which of JJJP's interest as purchaser under the JJJP contracts and Mr Cimen's interest as purchaser under the Cimen contracts has priority, and whose caveat should be removed?

1. The Peacocks make no submissions on this issue.

1. JJJP makes the following submissions if the Court concludes that the Cimen contracts were not effectively terminated by the Peacocks and remain on foot.
2. JJJP submits that Mr Cimen is not ready and able to pay the balance of the purchase price (an obligation which remains to be performed under the contracts), and, therefore, is not entitled to an order of specific performance. On Mr Cimen's own evidence, it was conceded that he would need "re-approval" to settle the Cimen contracts. JJJP relies on the submissions set out at paragraph 39 of the Peacocks' Closing Submissions to support its view that there is insufficient evidence before the court to demonstrate that Mr Cimen has the ability to raise the finance needed to settle the Cimen contracts.
3. If the Cimen contracts are deemed to remain on foot and Mr Cimen is entitled to an order of specific performance of those contracts, then JJJP submits that its interest should be given priority because it has the better of two equal and competing equities. JJJP acknowledges that, because Mr Cimen's interest as a purchaser arose first in time, the general rule states that priority should be awarded to first in time when merits are equal. However, JJJP notes that this conclusion is predicated on a merits analysis which finds that the two competing equities are equal. As has already been stated, JJJP says that for the following reasons it has the better of the two equal and competing equities:

(a) In the context of priority dispute, the search is for conduct which is both blameworthy and causative. Mr Cimen's failure to lodge the Cimen Caveat, until after JJJP had already acquired its interest as purchaser under the JJJP Land Contract, amounted to blameworthy and causative conduct, because Mr Cimen's interest would still have been protected if he had lodged a caveat before JJJP acquired its interest in the Land; and

(b) JJJP would have had notice of Mr Cimen's claimed interest as a purchaser had Mr Cimen protected his interest as a purchaser and lodged a caveat in a timely manner. As a result, JJJP's interest should not be extinguished and Mr Cimen's interest should be postponed by reason of his failure to lodge the caveat, as the caveat would have put JJJP on notice of Mr Cimen's interest.

1. JJJP relies on the following observation of Callinan J, in Black v Garnock:

" .... What is much more likely to be subversive of the whole of the scheme of the Torrens system is that a person interested in, or entitled to deal with, land, who has not acted fraudulently, might suddenly and unexpectedly be saddled with, or postponed to, an equitable estate or interest in land which could have been, but was not made the subject of protection by prompt lodgement of an instrument or the filing of a caveat pending the lodgement."[1]

1. Further, JJJP argues that if Mr Cimen had lodged a caveat on the title to the farm in a timely manner, the Peacocks would have never entered into the JJJP Contracts because the Cimen Caveat would have dissuaded them, because such a caveat would have presented them from being able to settle those contracts.
2. JJJP claim that the present case is to be distinguished from:

(a) a case like Avco Financial Services Ltd v Fishman[2] where the prior interest holder, in that case a bank, held an unregistered interest in land but was in a position to protect that interest, and did so, by retaining possession of title documents. If a prior interest holder, in order to protect its interest, maintains the title in its possession as opposed to lodging a caveat, that interest will not be postponed;[3] and

(b) a case, such as Jacobs v Platt Nominees Pty Ltd[4], where the prior interest holder is aware that they hold an unregistered interest, but no caveat is lodged by virtue of a reasonable belief that the lodgement of a caveat is unnecessary and might cause ill feeling. Thus, it was reasonable in Platt Nominees for the daughter not to lodge a caveat for fear of upsetting her father. Consequently, the daughter's failure to lodge a caveat did not amount to displacing conduct and her interest was not postponed.

1. JJJP cited Nettle J in Hili Mimi v Millennium Developments Pty Ltd, who observed:[5]

".... priority which might otherwise exist according to the time at which an interest was acquired may be lost where some act or omission by the holder of the earlier interest has led the holder of a later interest to acquire his interest upon the supposition that the earlier did not exist."

1. JJJP noted that, proceeding on the basis laid down in Platt Nominees[6], Nettle J further observed in Mimi:

"... that in order to postpone a prior equitable interest holder the subsequent holder must show not only that there has been an act which is capable in all the circumstances of being regarded as unconscionable (such as, for example, the failure to lodge a caveat), but also detriment which renders that act unconscionable. I conclude that in this case those conditions are satisfied, because of the detriment which would be suffered by the third and fourth defendants if they were not accorded priority."[7]

1. JJJP submits that, in the present case, as in Mimi, the prior equitable holder (Mr Cimen) had reason to suspect the creation of a subsequent equitable interest (the interest granted to JJJP) might be created. Mr Cimen should have been aware of this possibility due to his inability to obtain finance and inability to pay the deposits under the Cimen contracts.
2. JJJP argued that Mr Cimen's failure to lodge a caveat prior to the acquisition of JJJP's subsequent interest would result in a detriment to JJJP if not accorded priority, as it would deprive JJJP of the land and business which it contracted to purchase on faith of the said register search statement, which showed that the title to the Land was clear. Obviously, the register search statement was clear at the point of purchase because Mr Cimen failed to lodge a caveat.
3. JJJP contends that the fact that it was also slow to lodge its purchaser's caveat is not to the point. No detriment was suffered by anyone as a result and the conduct of the holder of a subsequent interest is not relevant in a priority dispute between it and the holder of the prior interest.[8]

1. With regards to the priority dispute with JJJP, Mr Cimen submits that he did not engage in postponing conduct by not immediately lodging a caveat over the farm. Mr Cimen contends that he did not delay because the Peacocks had no right to re-sell the farm, and in circumstances where he was reliant on their conduct, he did not take the necessary steps to lodge the purchaser's caveat.
2. Mr Cimen notes that, as per Heid v Reliance Finance Corporation Pty Ltd[9], priority will be awarded to the interest created first in time unless the holder of the prior interest has engaged in conduct which would make it inequitable for the prior interest to prevail.[10] Mr Cimen concedes that failing to lodge a caveat can, in certain instances, amount to postponing conduct,[11] but on its own will not be sufficient to displace the existing order of priorities.[12]
3. Mr Cimen contends the authorities have noted that the holder of a prior equitable interest is not bound by a duty to give notice to the world at large of its interest nor is it under a duty to lodge a caveat. Conversely, he submits the lodging of a purchaser's caveat is seen as a conveyancing practice.[13] The Court in Platt Nominees viewed it as unfair and not in the interests of justice to deprive the appellant of her prima facie priority purely for failing to register her equitable interest by way of caveat.
4. Mr Cimen notes that Platt Nominees was distinguished on its facts in Mimi where failure to lodge a caveat was considered to be postponing conduct. In Mimi, the Court considered that the plaintiff's failure to lodge a caveat for some months, in circumstances where they did not make any attempts to communicate with the first defendant (who had contracted with a builder to build his house) despite observing construction on the property, amounted to postponing conduct. Nettle J held that the failure to communicate in circumstances where the plaintiff had reason to believe a further interest had arisen warranted postponing his interest in favour of the first defendant.
5. Mr Cimen argues that, after discovering the sale to JJJP on 18 June 2021, his first move was to instruct his solicitor to contact Mr Giummarra for an explanation. Following this explanation, Mr Cimen lodged a caveat to protect his interest.
6. Mr Cimen submits that his failure to lodge a caveat does not amount to postponing conduct such that it should entitle JJJP to priority. Mr Cimen contends that both parties are entitled to some form of equitable protection over the property. Further, he argues the correct way in which to deal with the competing interests was for the Peacocks to terminate the JJJP contract and assume any liability thereunder at the time which they affirmed his Contracts.

1. Even if Mr Cimen were entitled to specific performance, in my view, JJJP will be given priority with regards to their competing interest with Mr Cimen, as they had the better equity.
2. Both parties have relied on the proposition outlined in Platt Nominees[14] and Mimi[15] that a failure to lodge a caveat will not always amount to postponing conduct, and, therefore, cannot always be relied upon to prove that the merits of two competing equities are not equal and first in time should not be given priority. However, those cases are also authority for the position that, although, a failure to lodge a caveat does not automatically trigger a departure from this general rule, this does not preclude it from being relied upon as postponing conduct.
3. Nettle J observed in Mimi[16] that priority will be lost where an act or omission has led the subsequent interest holder into acquiring an interest on the assumption that no previous interest exists.
4. I agree with JJJP that, following his purchase, Mr Cimen did have reason to suspect that a subsequent equitable interest may arise, as he was aware of the ongoing difficulties surrounding his own inability to settle, that is, his inability to obtain finance and his failure to pay the deposit. This is bolstered by the fact that the Peacocks had communicated to him that they would be placing the farm back on the market despite offering extensions. For these reasons, Mr Cimen ought to have known that there was a real chance the Peacocks would re-sell the farm, and, therefore, should have protected his interest by lodging a caveat, an act which by extension would have communicated to any incoming purchaser that an interest existed.
5. JJJP justifiably assumed that no previous interest existed at the time of purchasing the farm from the Peacocks, as the register search statement did not reveal any interests. Had the caveat been lodged, JJJP would have been put on notice at the time of conducting the search, and the Peacocks would not have been able to settle on the JJJP contracts.
6. I also adopt JJJP's submission that, based on Circuit Finance Australia Limited (in liquidation) v Panella & Anor, the conduct required to undermine priority needs to be both blameworthy and causative. The requirement of conduct being "blameworthy and causative" echoes the requirements outlined above in Mimi, in that it boils down to conduct which "caused the holder of the later interest to act on a false premise" [17]. For the reasons already stated relating to the information that was available to JJJP upon conducting the register search statement, the failure to lodge the caveat caused JJJP to act on the false assumption that no pre-existing interest existed.
7. With regards to the requirement of detriment, as outlined by Nettle J in Mimi[18] relying on the principles in Platt Nominees[19], the clear detriment if JJJP were not awarded priority is that it would not receive the farm and business which they contracted with the Peacocks to receive.

Fourth issue for trial: Did Mr Cimen repudiate the Cimen contracts by failing to pay the deposits under the Cimen contracts on or before 5 June 2021?

1. The Peacocks submit that repudiation of the Cimen contracts has occurred because Mr Cimen evinced an intention to either not be bound by the contracts, or to fulfil them only in a manner that was substantially inconsistent with his obligations.
2. The Peacocks note that despite time being of the essence in the Cimen contracts, Mr Cimen failed to pay the deposits in a timely manner - again, substantially inconsistent with his contractual obligations.
3. The Peacocks cite the High Court case of Brien v Dwyer, to solidify the argument that repudiation occurred.[20] Barwick CJ observed that the nature of a deposit and its purpose in a contract for the sale of land, as an earnest for the bargain, makes a purchaser's failure to pay it so fundamental a breach, depriving the vendor of the security for the purchaser's performance without which the vendor would not be required to proceed with the contract, that the vendor is entitled to rescind the contract "out of hand", meaning without notice. .
4. The Peacocks note that in Brien, Gibbs J reiterated the fundamental and essential nature of a deposit, and explained how breaching this obligation undermines the contract when he held that "the character and importance of a deposit indicate that the clause requiring payment of a deposit is a fundamental term the failure to perform which goes to the root of the contract and entitles the vendor to renounce further performance". [21]
5. The Peacocks submit that even though the Cimen Property Contract did require service of a notice under GC 27.1, this does not inhibit the Peacocks from claiming the right to terminate due to the equitable doctrine that a party to a contract may regard itself as discharged from further performance, where the other party has repudiated the contract by evincing an intention not to be bound or to fulfil the contract in a manner substantially inconsistent with their obligations. In these circumstances, therefore, the innocent party may elect to treat the contract as at an end without serving a notice under GC 27.1.
6. The Peacocks contend that, by failing to pay the deposit and provide security for his performance, Mr Cimen evinced an intention to proceed only in a manner that was substantially inconsistent with his fundamental obligations, and they rely on the following evidence to support this argument:

(a) the amount of the deposits was substantial security for the vendor, being 5% of each purchase price;

(b) Mr Cimen has previously been involved in real estate transactions for himself and his construction companies and even was a real estate agent for a time in 2016. The Peacocks say that it can, therefore, be inferred that he was well aware of the importance of the purchaser's obligation under sale of land contracts to pay a deposit - to which he confirmed his subjective awareness of this fact at trial;

(c) Mr Cimen failed to pay the deposit at all relevant deadlines, being:

(i) on 24 May 2021, when the last instalment was due under the contracts;

(ii) at any time thereafter until 18 June 2021, by which time he knew that the Peacocks had resold the farm and continued to contact the agent to insist that the Peacocks were bound to proceed;

(iii) at any time thereafter until 9 July 2021, by which time his solicitor had acknowledged that the deposit remained unpaid and his solicitor was informed that the Peacocks regarded the contract as at an end, but he continued to insist through the solicitor that the Peacocks were bound to proceed;

(iv) at any time thereafter until 17 July 2021, at which time the Peacocks' solicitor, Mr Giummarra, again informed Mr Cimen's solicitor that the Peacocks regarded the contract as at an end, but Mr Cimen through his solicitor was still insisting that the Peacocks were bound;

(v) at any time thereafter until 22 July 2021, when Mr Giummarra served his letter enclosing the self-executing Notices of default and rescission and stating that, in any event, the contracts were already at an end; and

(vi) at any time thereafter until 3 August 2021, when the deposits finally were paid.

1. The Peacocks argue that Mr Cimen's explanation that he had not received a request or demand for payment does not absolve him of his obligation to pay the deposit, or in any way mitigate the repudiation. The Peacocks rely on the case of Progressive Mailing House Pty Ltd v. Tabali Pty Ltd,[22] where the tenant's persistent failure to pay rent constituted a refusal to carry out its obligations according to the terms of the lease and a persistence in carrying them out in a way substantially inconsistent with those terms.

1. Mr Cimen relies on Koompahtoo Local Aboriginal Council v Sanpine Pty Ltd[23] as authority for the proposition that any evaluation of an alleged repudiation depends upon conduct. Here, Mr Cimen is drawing upon the same paragraph as the Peacocks, where the Court held that:

"The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it...".

1. In his submissions, Mr Cimen draws upon the test in Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd[24], that the "essentiality" of a term is objectively inferred by reference to the surrounding circumstances. Mr Cimen contends, in line with South Dowling Pty Ltd v Cody Outdoor Advertising Pty Ltd[25], if the relevant clause was not identified as being essential from the outset, the court will evaluate the conduct of the parties in order to draw conclusions as to its level of importance. Mr Cimen submits as per Tropeano v Riboni,[26] it is also open for the Court to draw upon post formational events which illuminate the importance of the term.
2. Mr Cimen argues that he was always committed to purchasing the farm, having reached this decision with his family. Mr Cimen submits that at no time could his conduct demonstrate an intention not to be bound by the contract.
3. Mr Cimen further relies on the cases of Perry v Suffields Ltd[27] and Kazacos v Shuangling International Development Pty Ltd[28] to support an argument that a deposit is not an essential feature of a binding contract for the disposition of an interest in land. Mr Cimen refers to these authorities to rebut the principle from Brien that failure to pay a deposit gives rise to a right to terminate without further notice.[29] Mr Cimen also draws upon the statement of Barwick CJ in Brien which he submits qualifies the overall principle of the importance of the deposit.[30] Barwick CJ noted that where a vendor is aware of a failure to pay the deposit, they cannot delay in exercising a right to rescind, and where a purchaser has been led to disadvantage in reliance on such a delay, a Court of equity may afford the purchaser some relief as the right to recission may have been lost.[31]
4. Mr Cimen contends the Peacocks and Mr Giummarra adopted a "lackadaisical" attitude toward the payment of the deposit, and, therefore, their conduct suggests that the term was not so essential that breach gives rise to an immediate repudiation of the Contracts. Mr Cimen argues it would be impractical and uncommercial if all incidences of failure to pay a deposit amounted in immediate repudiation and termination, as parties ought to be within their rights to elect to affirm the contract by extending time to pay the deposit.
5. As evidence of this supposed "lackadaisical" attitude, Mr Cimen focuses on the post-contractual conduct of the Peacocks, and the fact that at no point in time, up to and including 7 July 2021, did the Peacocks or Mr Giummarra even realise that the deposit was not paid, and that it was only after receipt of Mr Seyit Erciyas of Erci Lawyers' letter that they become aware of the fact. Mr Cimen submits that this amounts to a kind of indifference towards the payment of the deposit, and in turn does not indicate that a breach of this term was so essential such that it should provide an apprehension that Mr Cimen had repudiated.
6. Mr Cimen also notes that the failure to pay the deposits was a term capable of being remedied, and that damages were a sufficient remedy for any breach.
7. Mr Cimen contends that ever since his very first inspection of the farm he has consistently expressed a firm intention to purchase. He argues he informed the Peacocks that irrespective of the price, he definitely wanted to purchase the farm. Mr Cimen submits that he held true to this intention notwithstanding his failure to pay the deposit on 24 May 2021. Mr Cimen asserts that his bank statement in May 2021 demonstrates that he had the money available to pay the deposit.
8. Mr Cimen submits that he did not pay the deposit for the following reasons:

(a) The Peacocks failed to provide him with a contract in February 2021 as he requested;

(b) The Peacocks' selling of the farm to Mr Lonappan without informing him; and

(c) In May 2021, the Peacocks created issues with access to the farm which jeopardised his ability to complete a financier's valuation.

1. With regards to this final point, and the Peacocks' role in frustrating his ability to access the property for valuation, Mr Cimen said he contacted Mr Hanley on several occasions to organise a valuation but never heard back. In June 2021 after not having heard from Mr Hanley, Mr Cimen was subsequently informed the farm had been sold.
2. Mr Cimen says a valuation of the farm was essential to his ability to obtain finance as his broker, Mr McGregor, was trying to organise finance through a bank rather than a private lender, and according to Mr Cimen this would occur once the Contracts had been signed.
3. Mr Cimen contends that owing to his previous experience in real estate, he was confused by the fact that at no point in time was he ever questioned or followed up about the payment of the deposits by Mr Hanley, Mr Giummarra or Mr Erciyas. The implication here is that Mr Cimen believed, based on his experience, that the deposit was payable to the real estate agent and not to the Peacocks' solicitor and he expected the other side to contact him for payment of the deposits.
4. Mr Cimen argues that once a request was finally made pursuant to the Notices of Default and the subsequent offer on 2 August 2021, he immediately paid the deposit.
5. Mr Cimen points towards the following conduct as proof of his various attempts to finalise the contracts:

(a) Mr Cimen approached Mr Giummarra on 18 May 2021 requesting the first extension of the subject to finance clause to allow Mr McGregor enough time to seek finance from a bank (reserving a private lender as an alternative). Mr Cimen subsequently instructed his solicitor to write to Mr Giummarra and reiterate the extension request until 4 June 2021 and to seek the removal of SC 13;

(b) Mr Cimen submits that Mr Giummarra did not inform Mr Erciyas until 31 May 2021 that the extension had been granted, and that in the interim, despite Mr Giummarra providing advice to the Peacocks on 24 May 2021 regarding the Cimen contracts, the Peacocks were uncertain as to whether the Cimen contracts had ended or not; and

(c) Mr Cimen says that, on 31 May 2021, when Mr Giummarra confirmed the extension of time and the removal of SC 13, Mr Giummarra effectively demonstrated the Peacocks' reasonable awareness that the contracts remained on foot. Mr Cimen contends that it was a result of this 11-day delay between request and confirmation, combined with the fact that he, therefore, did not know when the extension commenced, alongside Mr McGregor's subsequent advice that the bank had not provided finance, which compelled Mr Cimen to ask for a second extension to the finance clause on 2 June 2021.

1. Mr Cimen argues that, although he was confused by the email from Mr Hanley refusing to grant the second extension, he did not interpret this refusal as terminating the contracts. Mr Cimen submits that he made the conscious decision to become unconditional and remained committed to the Contracts, he stated that he planned on meeting settlement in 6 months as this would allow him enough time to secure bank finance without having to rely on a private lender.
2. Mr Cimen submits that he lodged a purchaser's caveat over the farm on 25 June 2021 after Mr Hanley told him about the JJJP sale on 18 June 2021. Mr Cimen notes that Mr Giummarra acknowledged these steps in his letter on or about 9 July 2021, and that in that letter, Mr Giummarra said words to the effect that the Peacocks believed the contract was at an end for failure to secure finance, and upon the expiration of the original extension they were free to sell to another party.
3. Mr Cimen does not dispute that where a party terminates for breach, they do not need to be aware of another breach in order to rely upon it to justify their conduct.[32] However, here, the supposed breach is the alleged repudiation, which Mr Cimen submits is not in existence.
4. Mr Cimen says that he did not pay the deposit during the period 18 June 2021 and 2 August 2021 because, after becoming aware of the JJJP sale, he realised that there was a dispute on foot, and, therefore, thought it best no to pay the deposit until it was requested by the Peacocks.
5. Mr Cimen submits that the failure to pay the deposit did not amount to a repudiation by him nor did it evince an absolute refusal to perform the contract in the circumstances of this case. Mr Cimen argues that the common law claim for termination ceases and, according to the recent case of Castaway Avenue Pty Ltd v CSC1957 Investments Pty Ltd [33], he should have been issued with Notice under GC 27 of the Contract given that (as it was in that case), but for the applicant's repudiation and the respondent's acceptance, the respondent was required for give notice under GC 27 prior to terminating.

1. Mr Giummarra also refers to the Victorian Court of Appeal in Castaway[34], and the High Court's decision of Koompahtoo[35] as setting out the test for repudiation.
2. Mr Giummarra submits that in Castaway[36], the Court continued by quoting Jordan CJ's reasons in Tramways[37] as an authoritative exposition on the essentiality of terms of an agreement. Principally, a term will be considered essential if it may be understood from the contract that the innocent party would not have entered into the contract but for a guarantee of strict performance of that term. In that case, any departure from strict performance of the term justifies termination of the contract.
3. Much like the Peacocks, Mr Giummarra draws upon the test for recission articulated in Koompahtoo[38] and submits that Brien[39] and Romanos v Pentagold Investments Pty Limited[40] demonstrate that the non-payment of a deposit will generally meet the test from Koompahtoo[41].
4. Mr Giummarra contends that Mr Cimen repudiated the contracts by failing to pay the deposit for months after its execution and argues that Mr Cimen never had any intention of complying with the deposit obligations.
5. Mr Giummarra also argues that Mr Cimen's requests for extensions do not amount to proof of an intention to comply with the contracts, and instead merely expands the window in which he could walk away from the contracts without committing a breach.

1. Mr Cimen, the Peacocks and Mr Giummarra are in agreement that the relevant test for repudiation is outlined in Koompahtoo.[42]
2. I agree with Mr Cimen and Mr Giummarra that the test for whether a breach of a term amounts to repudiation is essential has been effectively articulated in Tramways.[43]
3. However, for the reasons which follow, I accept that, in the circumstances of the contract "as a whole", the payment of the deposit was in fact an essential term, and failure to pay the deposit is a repudiation.
4. I am persuaded by the Peacocks' reliance on Brien[44] that a purchaser's failure to pay a deposit, amounts to a fundamental breach which immediately entitles the vendor to terminate the contract. I agree with the Peacocks that a deposit amounts to effective security for the purchaser's performance of the contract, and that as security, its purpose is to reinforce a clear commitment to the purchase. Vendors understandably rely on deposits for assurance that the contract remains on foot and settlement is forthcoming.
5. In my view, a failure to pay the deposit not only deprives the vendor of this surety, but it is also clear communication that the purchaser is not committed to the contract. This is even more pronounced in the present case, where the time for paying the deposit is of the essence.
6. I further rely on Barwick CJ in Brien, who found that a vendor can "immediately, in my opinion, and without prior notice, out of hand rescind the contract" in circumstances where a purchaser has failed to pay a deposit.[45] Barwick CJ continues to explain that the vendor is also not "bound to give any notice to make the time for payment of the deposit of the essence of the contract", or "any intention to rescind". In a similar vein, Stephen J held that:

"It is this special character of a deposit which requires that a purchaser's failure to pay a deposit at the time and in the manner stipulated in the contract entitles the purchaser then and there to terminate the contract". [further citation omitted][46]

1. The clear purpose of these emphatic statements by Barwick CJ and Stephen J in Brien was to reinforce the essential nature of the deposit in almost every contract, and to highlight that a failure to pay is a paramount breach.[47]
2. Mr Cimen rightfully points towards the position of Barwick CJ in Brien[48], that in certain circumstances a vendor's delay in exercising a right to terminate where a deposit has not been paid might disadvantage the purchaser, and, therefore, in some situations, it might be arguable in equity that the right to rescind has been lost. Notwithstanding this statement, importantly, Barwick CJ prefaces this position by saying that such an inequity will only occur in circumstances where there is an awareness on part of the vendor, and a conscious decision to delay, that is, some form of "inaction". Barwick CJ notes:

"If a vendor is aware of the failure to pay the amount of the stipulated deposit, he cannot delay in exercising what, in my opinion, is his undoubted right of rescission of the contract."[49]

1. In my view, it is, therefore, essential that the vendor is aware of the failure to pay the deposit, and the point of this statement is to highlight circumstances where vendors knowingly do not take action to terminate the contract. In the facts of this case, the Peacocks were not aware of the failure to pay the deposit at the time they sought to terminate the contract, and, therefore, this principle has no relevance.
2. Consistent with Barwick CJ's view above, I am not persuaded by Mr Cimen's argument that the Peacocks' failure to realise that the deposit was not paid in anyway demonstrates a "lackadaisical" attitude towards the payment of the deposit, such that it might compromise a claim of repudiation and a right to terminate. It is not incumbent on a vendor to ask for a deposit, and, therefore, it is not "lackadaisical" not to ask for it.
3. Additionally, following Barwick CJ's line of reasoning, I find that ignorance of the failure to pay the deposit favours a view that termination is justified, as there is no evidence that the Peacocks were aware of the alleged repudiatory conduct and decided to do nothing.
4. Given my above finding, I am not required to engage with Mr Cimen's argument that a failure to request a deposit on the Peacocks' part indicates that the deposit was not an essential term. The Peacocks could not be expected to request something that they were not aware was outstanding. This lack of awareness, as has already been stated above, cannot be used as evidence of indifference, and has instead been viewed by the court as a circumstance which preserves the right to terminate, because there is no evidence of avoidance.
5. I am not persuaded by the argument that Mr Cimen can be excused from paying the deposit because he was not provided with a copy of the contracts in February 2021. In the lead up to the ultimate signing of the contracts on 1 May 2021, Mr Cimen had possessed, amended and signed the contracts. I also find that failing to inform Mr Cimen that the property had been unsuccessfully sold to Mr Lonappan in March 2021 had no influence on Mr Cimen's decision to pay or not pay the deposit, as this predated the final contract between Mr Cimen and the Peacocks.
6. I do not accept Mr Cimen's evidence that he contacted Mr Hanley multiple times and made a number of efforts to arrange for a valuer to attend the farm to conduct a valuation. Mr Cimen did not provide the court with corroborating evidence at trial that these enquiries had been made. From the Peacocks' perspective, the only evidence they possessed that any enquiry had been made for a valuation came from their agent, who said that a missed call they had might have been from the valuer (but otherwise no contact had been made). I am not convinced by the balance of this evidence that Mr Cimen was in any meaningful way hampered in his ability to obtain a valuation by the Peacocks or their agent's conduct, and, therefore, I do not view this is a valid explanation for failing to pay the deposit.
7. Mr Cimen argues that the context in which the deposit was not paid overwhelmingly favours the view that he had always intended for the contracts to remain on foot, and, therefore, supports his contention that not paying the deposits was more a product of inadequate communication on part of the Peacocks.
8. If anything, an examination of Mr Cimen's conduct in relation to the failure to pay the deposits, and a more detailed look at the context within which they were not paid, further suggests that Mr Cimen was only willing to procced in a manner that was substantially inconsistent with the terms of the contracts. I accept that the following as evidence of this intention:

(a) Mr Cimen was plainly aware of the significance of a deposit due to his prior experience settling properties. He had previously settled a number of real estate transactions in his private life and on behalf of his construction business.

(b) There were at least five critical moments leading up to the serving of the Notices of default and rescission which should have triggered an awareness on part of Mr Cimen that the deposits were required. Firstly, there was 24 May 2021 when the first instalment was due under the contracts. Secondly, there was the lapse of time between when the first instalment was due and 18 June 2021, where Mr Cimen learned that the Peacocks had resold the farm. Thirdly, there was the window of time between the reselling of the farm and the letter from Mr Giummarra on 9 July 2021, which detailed that Mr Cimen's solicitor had acknowledged the failure to pay the deposits and the absence of finance, and Mr Giummarra reiterated that from the Peacocks' perspective the contracts were at an end. Fourthly, at any time until 17 July 2021, when Mr Giummarra reiterated to Mr Cimen's solicitor that, despite Mr Cimen's view that the contract was still on foot, the Peacocks were operating on the assumption that the contract had ended. Fifthly, any time up until the serving of the Notices of default and rescission. Mr Cimen did not respond to any of the above by paying the deposits. He had plenty of opportunities, but at each of these crossroads he decided to withhold the deposits, allegedly because he was never asked for them. Mr Cimen should have realised from the various critical moments set out above that the deposits were required to complete the transaction, and, in my view, his decision to withhold was more than anything linked to his inability to obtain the necessary finance.

1. I am not convinced that contacting the Peacocks' real estate agent and solicitor to arrange for an extension of the subject to finance clause amounts to a genuine attempt to keep the contracts on foot and remain bound by it. In my view, these actions, taken in the context of the persistent failure to pay the deposits, suggests that Mr Cimen was wanting to alter the contracts to suit his changing circumstances. Mr Cimen was not committed to the contracts; he wanted the subject to finance clause to be extended to give himself an out to contracts he had serious doubts that he would be able to fulfill. The fact that he had not paid the deposits is further evidence of this overall position.
2. For the above reasons, I do not believe that Mr Cimen made the conscious decision to allow the contracts to become unconditional. Mr Cimen would not have requested so many extensions of the subject to finance clause if he was not concerned about the contracts becoming unconditional. The contract becoming unconditional is just another example of how the contractual milestones were not being met, and that Mr Cimen was not in a position to reach settlement.
3. It is inconsistent for Mr Cimen to argue that he lodged the caveat on 25 June 2021 because he thought he had a contractual right to the farm, only to argue conversely that he did not pay the deposits between 18 June 2021 and 2 August 2021 because he was unsure about his interest in light of the sale to JJJP (which he was told about on 18 June 2021). He cannot argue that he had a right to the caveat, but at the same time was unsure if it was a valid right and so did not want to commit to paying the deposits.
4. For the reasons above, I find that Mr Cimen's persistent failure to pay deposits was a persistence in performing the contracts in way substantially inconsistent with the terms of the contract.

Fifth issue for trial: Did the Peacocks effectively accept that repudiation and bring the Cimen contracts to an end by selling the farm to JJJP under the JJJP contracts on 5 June 2021, or in any other way at any later time?

1. The Peacocks submit that a repudiation may be "accepted" by the vendor's conduct in re-selling the farm, or even by placing the farm on the market for re-sale, as per Holland v Wiltshire.[50] This is what they did when they re-sold the farm to JJJP on 5 June 2021, and, therefore, they accepted Mr Cimen's repudiation.
2. The Peacocks contend such actions were consistent with the applicable principle in Holland, which is that the Peacocks were entitled, at any time that the repudiation continues, to treat the contracts as no longer binding on them.[51]
3. The Peacocks argue that, if their resale on 5 June 2021 was not effective repudiation, then they accepted the repudiation on 18 June 2021, this being the time when notice of the re-sale had come to the attention of Mr Cimen, confirmed by the real estate agent Mr Hanley on the telephone.
4. If this notice was also not repudiation, then the Peacocks' solicitor's letter to Erci Lawyers on 9 July 2021 was ultimately effective as an acceptance of communication, as Mr Giummarra stated unequivocally that the Peacocks regarded the contracts with Mr Cimen as at an end. Mr Giummarra's email to Mr Erciyas on 17 July 2021 made the same statement and is also effective as acceptance of repudiation.
5. The Peacocks submit that, even if the contracts remained on foot as late as 22 July 2021, Mr Giummarra's letters to Erci Lawyers on that date and/or the enclosed self-executing default and rescission Notices constituted an acceptance of the repudiation, subject to Mr Cimen being offered an opportunity to "revive" the contracts by complying with the Notices. For the proposition, Nund v McWaters[52] is relied upon as a Supreme Court Full Court authority for the position that a defective contractual notice of rescission is nonetheless effective to accept a repudiation.
6. The Peacocks contend that it does not matter if the reasons stated for discharging a contract are erroneous. Parties may later rely on a ground that did exist at the time, and which had validly brought the contract to an end.[53]

1. Mr Cimen submits that only a finding of repudiation crystalises the Peacocks' right to bring the contracts to an end without following the provisions of the contracts including the giving of notice under GC 27.
2. Mr Cimen notes that the Peacocks rely on Ryder v Frohlich[54] as authority for the notion that, although no formal or direct notice or communication of acceptance is required, words or conduct may communicate acceptance if they are consistent only with the electing party's right to terminate the contract. Mr Cimen says that, in applying Ryder[55], the Peacocks need to establish that their conduct demonstrates an acceptance of repudiation and does not conversely affirm the existence of the Contract.
3. Mr Cimen argues that the letter from Mr Giummarra to Mr Erciyas on 9 July 2021 gave rise to his uncertainty as to whether the Peacocks considered the contracts to be at an end and whether they had elected to terminate.
4. Mr Cimen's contends that Mr Giummarra's email dated 17 July 2021 reveals that at the time of the email the Peacocks believed that the contracts were on foot and placed the onus on Mr Cimen to terminate the contracts. Mr Cimen submits that Mr Giummarra's phrases "this is unfortunate situation has arisen as a result of miscommunication and misunderstanding between the parties" and "[t]hey sincerely regret the disappointment [Mr Cimen] must be feeling" are indicative of this view. Mr Cimen contends that this view is reiterated by the Peacocks' email to Mr Hanley, also on 17 July 2021, which was in his view designed to exert pressure on Mr Cimen to withdraw his interest under the contracts. Mr Cimen argues that this view is further evidence of his understanding that the contracts were still on foot.
5. Mr Cimen submits that there had been direct contact between him and the Peacocks during this period, and points to Mr Giummarra's email to Mr Peacock on 20 July 2021 which includes the comment "you could continue communicating with [Mr Cimen] but let's give Erci a chance to communicate with us first" as proof that there had been communication between the parties, and Mr Giummarra was aware of such contact. Mr Cimen gave evidence to this effect, which contradicted Mr Peacock's evidence that he only spoke to Mr Cimen on one occasion in his backyard.

1. Mr Giummarra submits that at trial, Mr Cimen rightly accepted that a repudiated contract may be ended by the vendor without following the notice procedure in GC 27 and 28.
2. Like the Peacocks, Mr Giummarra says that manner in which the Peacocks brough the contracts to an end was to sell the land to JJJP.
3. Mr Giummarra contends, if the re-selling of the farm to JJJP on 5 June 2021 was not sufficient to bring the contract to an end, he notes that throughout the period in which Mr Cimen remained in repudiation of the contracts:

(a) by 18 June 2021, or at least 9 July 2021, Mr Cimen became aware that the repudiation had been accepted through re-sale of the farm;

(b) on 9 July 2021, the Peacocks (via Mr Giummarra) expressly stated that Mr Cimen's contract was at an end;

(c) on 17 July 2021, Mr Giummarra again communicated via email the Peacocks' view that the contracts had ended; and

(d) on 22 July 2021, Mr Giummarra again confirmed to Erci Lawyers that the contracts had come to an end.

1. Mr Giummarra makes the same point as the Peacocks that a party purporting to exercise a right of rescission on an incorrect basis, will still succeed in bringing the contract to an end, as long as there was a valid basis for doing so (even if unknown to the party ending the contract).[56] Accordingly, Mr Giummarra notes there were four instances (as set out above) on which, if any earlier acceptance of repudiation had been insufficient, the Peacocks terminated the Cimen contracts by accepting Mr Cimen's ongoing repudiation of it.

1. I am not convinced by Mr Cimen's argument that the Peacocks' delay in replying to Mr Cimen's request for a second extension, and their delay in informing Mr Cimen that the farm was resold demonstrates that they had not terminated the contracts and accepted repudiation. While the authorities are clear in stating that re-selling the property amounts to an acceptance of repudiation, at no point do they say that it is also a requirement that for this to be valid it needs to be communicated to the other party.
2. I also do not accept that the original email from Mr Hanley on 5 June 2021, which was subsequently referenced in Mr Giummarra's letter on 9 July 2021 demonstrates that the Peacocks were uncertain as to whether the contracts had been terminated. The Peacocks were not uncertain as to whether the contracts with Mr Cimen had ended, as they would not have resold it to JJJP if they were. Instead, the Peacocks were attempting to give him "a good chance" in offering Mr Cimen a window for potentially reviving the contracts. If anything, the delay in correspondence suggests that, in the Peacocks' view, it should have been plainly obvious to Mr Cimen that the contracts had ended, and they had not anticipated that they needed to keep him in the loop.
3. I do not accept Mr Cimen's view that Mr Giummarra's email to Erci Lawyers on 17 July 2021 is evidence of the Peacocks' belief that the contracts remained on foot. The interpretation advanced by Mr Cimen seems to ignore the second sentence of the email, which clearly states that the Peacocks "remain of the view that the contracts have ended". I also do not agree with Mr Cimen that the settlement offer alluded to in the same email is further evidence of the Peacocks' understanding that the contracts remained on foot. A settlement offer to try and prevent a budding dispute is a pragmatic commercial decision, and can in no way be taken to demonstrate an admission of wrongful conduct. An acceptance of this proposition would have dire consequences for the law.
4. It does not matter whether, as submitted by Mr Cimen, there had been direct communication between him and Mr Peacock during the time the contracts were in flux. Even if this did occur, there is no evidence that anything was promised or represented in these interactions. The discussion around holding off or pursuing a recission notice also does not support Mr Cimen's argument that there was no acceptance of repudiation. This comment was not an admission of uncertainty as to whether the contracts were ended such that they needed Mr Cimen to "show his bona fides". It was simply Mr Giummarra explaining the options available to the Peacocks and weighing up which course of action was most likely to get the best result, being an acceptance on part of Mr Cimen that the contracts were terminated.
5. I accept the Peacocks' submissions that repudiation has been accepted when a vendor re-sells a property and can even be deemed to initially occur when the property is placed on the market for re-sale. Indeed, in Holland Dixon CJ stated that the vendor's "election to treat the contract as discharged by the purchaser's breach was sufficiently manifested by his proceeding to advertise the property for sale, and by selling it".[57] On this basis, the Peacocks' re-selling of the farm on 5 June 2021 to JJJP, when Mr Cimen was already 12 days late in the payment of the deposits, is effective evidence of repudiation.
6. In my view, though the above principle in Holland[58] does not mandate communication, a clear intention to not be bound by the contracts and accept repudiation was evidenced on:

(a) 18 June 2021 when the re-sale came to the attention of Mr Cimen;

(b) 9 July 2021 when Mr Giummarra sent a letter to Erci Lawyers saying that the Peacocks regarded the contracts as at an end; and

(c) 17 July 2021 when Mr Giummarra emailed Mr Erciyas saying the same.

1. All of these attempts to communicate that the Peacocks considered the contracts as at an end are examples of an acceptance of repudiations.
2. Finally, it was common ground that, pursuant to McWaters[59], it is no consequence if the purported grounds upon which repudiation is accepted do not exist, so long as other valid grounds do exist. Therefore, the self-executing default and recission Notices are also examples of acceptance of repudiation, as they were clear statements that the contracts had ended, albeit subject to an invalid right to revive the terminated and repudiated contract.

Sixth issue for trial: Did the Peacocks effectively terminate the Cimen contracts on or about 4 August 2021 by serving the Notice of Default and Rescission dated 22 July 2021 and Mr Cimen subsequently failing to comply with it?

1. The Peacocks submit that this question does not arise. However, even if the contracts remained on foot on 22 July 2021, the Notices served by Mr Giummarra were effective to bring the contracts to an end.
2. The Peacocks state that each notice was self-executing on its terms. The effect of having served the Notices in those forms was that the contracts came to an end without the requirement for any further notice to be given.
3. The Peacocks say that Mr Cimen did not pay interest and costs at the end of the 14-day period stipulated by the Notices, and that the effect of not paying these amounts was the contracts came to an end on the expiration of the notice.

1. Mr Giummarra argued that once the Peacocks' self-executing notice of default and recissions expired without payment of interest and costs, this was effective to terminate any contract that remained on foot until that time.

1. I agree with the Peacocks that this question does not arise because the contracts were already effectively terminated and, therefore, cannot be "revived". I also agree with the Peacocks that, even on the view that the contracts remained on foot, the Notices brought it to an end. Despite finally paying the deposit in response to the Notices, Mr Cimen's failure to pay the interest and costs under the Notice meant that the Notice was not complied with, and, therefore, the contracts came to an end at the expiration of the Notices.
2. Mr Cimen addressed the Notices in his submissions in relation to affirming conduct. His submissions will therefore be dealt with in relation to the seventh issue for trial.

Seventh issue for trial: Did the Peacocks, by their own conduct or by the conduct of an agent or solicitor, elect to affirm the Cimen contracts, so that they were still on foot as at 2 November 2021?

1. The Peacocks submit that once a contract is already at an end as result of a vendor electing to terminate it, it cannot subsequently be affirmed.
2. The Peacocks contend that, under the doctrine of election, once a person has either elected to affirm or terminate the contract and the decision is implemented the election cannot be retracted. The Peacocks argue this is consistent with Tropical Traders Pty Ltd v Goonan[60] . In line with this, the Peacocks submit that once they elected to terminate, they cannot subsequently elect to enforce the contract, as per Sargent v ASL Developments Ltd.[61]
3. The Peacocks contend that once the contract is determined to be discharged, no conduct can affirm it as there would be no contract to affirm.
4. The Peacocks argue that even if they did affirm it (which they say they did not), this does not mean that they cannot later accept a further or continuing repudiation.[62]
5. The Peacocks also note that a party can only affirm once they have knowledge of the circumstances which would give rise to right to terminate.
6. In applying the above principles to each sub-paragraph of paragraph 2 of the Amended Reply to the First Defendant's and Second Defendant's Defence to the Third Defendant's Amended Counterclaim dated 23 November 2023 ("the amended reply"), the Peacocks submit:

(a) They did not know the deposit had not been paid as of 31 May 2021, and, therefore, did not know of their right to terminate. As the deposit was not paid until August 2021, a new right to terminate would have arisen even if it is held that the extension of the finance approval date was an affirmation. This is also the case in relation to the instructions the Peacocks gave Mr Giummarra in relation to the removal of SC 13, in the period between 20 May and 31 May 2022.

(b) The evidence at trial was that the parties did not sign the Variation Agreement.

(c) The statement in the email from Mr Hanley on 5 June 2021 that the Peacocks "will sell" to Mr Cimen "if he continues to get finance and it comes through" is merely a statement of what they were already contractually bound to do, as they were obliged to sell to Mr Cimen in the event that he obtained finance as at 5 June 2021. Nonetheless, they did have a right to terminate because of an unpaid deposit (which they were still unaware had not been paid as at 5 June 2021).

(d) The Peacocks contend that the Notices of default and recission dated 22 July 2021 do not amount to an affirmation. The Peacocks argue this is consistent with the analysis of Dixon J in Holland,[63] where a demand for performance did not amount to an unconditional affirmation, but instead kept the contract open for a period of time conditional on compliance. The Peacocks note that no estoppel case was pleaded by Mr Cimen. Therefore, he relies on arguing that the Notice of recission amounts to affirming conduct despite the fact that he did not comply with this very notice. The Peacocks conceded that Mr Cimen may have been able to argue that he had accepted the offer to revive the contract had he complied with the Notices. But he did not.

(e) The Peacocks submit that the 2 August 2021 letter sent from Mr Giummarra to Mr Erciyas was also an offer to revive the contracts. The Peacocks analyse the letter as follows:

(i) Preliminarily, the Peacocks note the 2 August 2021 Notice was made without prejudice to the 22 July 2021 Notices, and, therefore, Mr Cimen was being offered to either comply with the earlier recission Notices, or the 2 August 2021 letter. The Peacocks contend that Mr Cimen did neither.

(ii) Whilst the letter did not state that Mr Cimen had to have "unconditional finance approval", the letter said that he had to obtain "necessary finance". The Peacocks submit that a reasonable businessperson, would interpret this as meaning that, by 5 August 2021 he had to say that he either had the funds or had access to the funds to satisfy the balance of the purchase price by 2 November 2021.[64]

(f) The Peacocks further describe the parties' position as at 2 August 2021 as follows:

(i) Mr Cimen failed to obtain finance by 1 May 2021, and instead asked for a 21-day extension.

(ii) Rather than being able to obtain finance as a going concern, Mr Cimen obtained advice from his broker to delete SC 13.1 to improve his prospects of obtaining funding.

(iii) Mr Cimen subsequently requested an extension of time to 4 June 2021 to obtain finance.

(iv) Although there was a delay on Mr Giummarra's part in communicating that SC 13.1 would be deleted, Mr Cimen could still have obtained finance pending the deletion.

(v) Mr Cimen did not allow the contract to become unconditional, and instead requested another extension to obtain finance to 18 June 2021.

(vi) The Peacocks refused the further extension and allowed the contract to become unconditional, after which they did not hear anything from Mr Cimen until 18 June 2021.

(vii) Mr Cimen did not seek an extension to pay the deposits and did not do so until he was compelled to do so.

(viii) Apart from a missed call received by the Peacocks' real estate agent, which was supposedly an attempt to conduct a valuation, there was no evidence of any serious attempts to conduct a valuation. The Peacocks had separately contacted Mr Erciyas on 29 July 2021 and 2 August 2021 to arrange access for a valuer.

(ix) The Peacocks were not made aware that the failure to conduct a valuation was not the only thing preventing finance approval. There were other conditions such as the requirement to obtain financial information from the Peacocks.

(x) It was not in the Peacocks' interests to offer Mr Cimen an unconditional opportunity to revive the contracts, as they would have lost their re-sale to JJJP.

(xi) The Peacocks say that they had doubts about Mr Cimen's ability to complete the purchase as he was struggling to obtain finance, and therefore, would not have offered him an unconditional offer to revive the contracts as they would have run the risk of losing their sale to JJJP.

(xii) A vague assurance that Mr Cimen had the finance to complete the purchase was not the commercial purpose of the 2 August 2021 offer, they wanted to know with certainty that if they allowed Mr Cimen to revive the contracts he would be able to complete the purchase on 2 November 2021.

1. The Peacocks say that Mr Erciyas' letter dated 2 August 2021 did no more than outline that Mr Cimen had the necessary finance to complete the business contract, and that the vague assurance that he "has the obtained finance approval in relation to the property" did not indicate with any degree of certainty or clarity that he had the necessary finance to complete the purchase on 2 November 2021. It is submitted by the Peacocks that he did not have the necessary finance given that:

(a) Nothing was provided from a lender stating that they had committed funds to provide the necessary finance, and there was no other indication that Mr Cimen's own funds would cover settlement; and

(b) It is unclear what conditions made up the "not unconditional" offer of finance. The Peacocks submit that it was not obvious that these conditions were limited to the valuation and there may have been others. The Peacocks state that their suspicion that there may be other requirements turned out to be well founded, as the lenders did go on to impose other requirements on Mr Cimen, such as the requirement to obtain from the Peacocks financial statements for the business for the three years prior to and including the sale, which Mr Erciyas requested in his letter dated 26 August 2021.

(c) The Peacocks contend that under these circumstances, clause 3 in the third paragraph of the 2 August 2021 letter had not been complied with and the offer lapsed on 5 August 2021 at 5.00pm.

(d) The Peacocks argue that Mr Cimen's ultimate payment of the deposit on 3 August 2021 is not an affirmation of the contracts, as he did not pay the full amount required by the Notices. The Peacocks submit that he had only satisfied one of the two conditions contained in the 2 August 2021 letter. They assert that condition 3 was not satisfied.

(e) The Peacocks argue that none of the particulars to paragraph 2 from (and including) subparagraph I to (and including) subparagraph (l) of the amended reply can be conduct which affirmed the contracts because the Cimen contracts were at an end on or after 6 August 2021. On this basis, the Peacocks submit that these paragraphs do not warrant further consideration.

1. Along with denying that a repudiation took place, Mr Cimen submits that the Peacocks affirmed the contracts. Mr Cimen contends that the Peacocks forfeited their right to recission at the point of affirming the contract, as they consciously made a choice between two inconsistent rights. Mr Cimen argues that Court has held that a representee cannot affirm in part and rescind in others, and, therefore, the Peacocks are precluded from relying on any previously held benefit.
2. Mr Cimen submits that in Wendt v Bruce,[65] Dixon J observed that a party that is entitled to terminate by reason of a breach will lose that right if they proceed to exercise other rights that it would only possess or be "justifiable" if the contract remained on foot.
3. Mr Cimen contends that, as per Sargent,[66] any election must be unequivocal in the sense that it is consistent only with the exercise of one of the two sets of rights, and by extension be inconsistent with the exercise of the other. Mr Cimen also notes that in Sargent it was held that there need be no actual, subjective intention to elect.[67]
4. To this end, Mr Cimen argues that any election must have been clear but may have been express or implied by conduct.[68]
5. Mr Cimen submits that Canberra Advance Bank Ltd v Benny[69] provides that, in determining if an affirmation has been made, the conduct of the innocent party after the right to terminate has arisen is of critical importance, and any conduct evincing that the right to terminate will not be exercised can potentially result in the loss of that right.
6. Mr Cimen contends that JAD International Pty Ltd v International Trucks Australia Ltd[70] is authority for the point that affirmation cannot take place in the absence of knowledge of the facts that give rise to a recission. Mr Cimen argues that given that in his evidence Mr Giummarra expressed that he only acted on instructions from the Peacocks, it can be assumed that when the Notices were provided the Peacocks understood that they had a right to rescind. Therefore, Mr Cimen submits they are bound to these words and/or conduct which amount to an affirmation of the contracts.[71]
7. Mr Cimen argues that, as the Court clarified in Goonan,[72] the issue is not the actual intention of the parties, but rather, an evaluation as to whether the conduct would only be justifiable if that election had been made.
8. Mr Cimen contends that, as per Sargent,[73] although affirmation or recission is not immediately required, a party can only keep its options open so long as it does not prejudice the other party. Mr Cimen submits that the effluxion of time did not amount to a prejudicial delay, and, therefore, in issuing the Notices the Peacocks chose to affirm the contracts. Mr Cimen notes that, given election cannot be withheld unreasonably, and a party can only act in a way which does not affirm the contract as per Champtaloup v Thomas,[74] acts which are done by a party demonstrating an unequivocal election of a willingness to perform the contracts will be seen as affirming.[75] Further, Mr Cimen says that, notwithstanding that the Notices, or rather their accompanying letter, contained a general reservation of rights, the formal Notices requiring completion still constituted an election to affirm the contracts.[76] Mr Cimen argues that the entirety of this conduct has been made within the context of the principle set out in Goonan,[77] in which it was the Court's view that once the election to affirm is made, it cannot be retracted.
9. Mr Cimen submits that the 22 July 2021 letter was an affirmation of the contracts, and required the payment of the deposits, interest and associated costs within 14 days and effectively re-fixed the requirement of time being of the essence.[78] Mr Cimen contends that because the Notices accord with the requirement of GC 27 and 28 of the Property Contract, if there was no repudiation by Mr Cimen and the Peacocks were to rely on these Notices to bring the contracts to an end, they are capable of doing so.
10. Mr Cimen argues that the Peacocks' willingness to facilitate Mr Cimen's required bank valuation in August 2021 demonstrated that an affirmation had occurred. Mr Cimen submits that, following the service of the Notices, the Peacocks were committed to advance the completion of the contracts, and had been in discussions to pursue this. Mr Cimen states that the Peacocks' direct email to Mr Cimen to try to organise a bank valuation of the farm, noting that they had not heard back from Mr Erciyas on Friday (being the 29 July 2021), as well as Mr Peacock's email to Mr Erciyas on 2 August 2021 reiterating that Mr Giummarra had not heard from him and seeking to arrange a valuation Thursday of that week (being the final day for compliance with the Notice) demonstrated the Peacocks' objective commitment to achieve completion.
11. Mr Cimen contends that, prior to 5 August 2021, being the expiration date under the Notices, on 2 August 2021, the Peacocks instructed Mr Giummarra to provide a further offer to Mr Cimen to settle. Mr Cimen states in his evidence, that Mr Peacock confirmed that his instructions were to provide an ultimatum not an offer.
12. Mr Cimen argues that the 2 August 2021 Notice superseded the 22 July 2021 Notice but reserved the Peacocks' rights under the former. Mr Cimen submits that the offer provided clear terms that settlement could occur under either compliance with the Notices or acceptance of the offer.
13. Mr Cimen's evidence was that he instructed Mr Erciyas to accept the offer by letter the same day. Mr Peacock acknowledged receipt of this acceptance in his evidence.
14. Mr Cimen's evidence was that he did pay the deposits when he was finally asked to do so on 3 August 2021. Mr Cimen said he had finance available to complete the transaction and believed that a letter of approval from the financier had been sent around that time. Mr Cimen submits that after advising the Peacocks of the payment of the deposit, he justifiably considered that the contracts were proceeding.
15. Mr Cimen contends that the evidence presented at trial posited that the Peacocks only notified JJJP on 3 August 2021 of the existence of the Cimen contracts. Mr Cimen further states that such evidence also demonstrated that, subsequent to the 3 August 2021 discussion with JJJP, the Peacocks called Mr Giummarra the following day for advice as to Mr Cimen's relative compliance with the contracts. Mr Cimen argues that this 4 August 2021 phone call establishes that the Peacocks were aware that they had competing contracts on foot, as Mr Jones said in his evidence:

"We rang Frank and said, 'They didn't finish that right.' You know? That's - that was the whole idea of sending it to them because we knew they couldn't get the money, so - yeah."

1. Mr Cimen submits that the Peacocks' email to Mr Giummarra on 10 August 2021 suggested simultaneously that the Peacocks could claim non-compliance with the offer and revert to relying on the Notices, but also provided instructions which unequivocally endorsed the contracts proceeding. In support of the view that the email contained a willingness to complete the contracts, Mr Cimen notes that the letter from the Peacocks stated that they wanted to obtain Cimen's financiers' details and proof of correspondence regarding unconditional finance and importantly, to start teaching Mr Cimen about the business for a favourable introduction to SRO.
2. Mr Cimen contends that the 11 August 2021 email from Mr Giummarra to Mr Erciyas acknowledged the payment of the deposits but noted that clause 3 of the offer still had not been complied with. Mr Cimen argues that, apart from this statement in relation to a failure to comply with clause 3, the letter did not contain any language which would indicate that the Peacocks believed the contracts were at an end and now relied on the Notices to terminate the Contract. Mr Cimen submits that any claim that this letter amounted to a termination would be contradicted by the conflicting message to Mr Erciyas to provide details of the proposed valuer.
3. Mr Cimen contends that the requirement of unconditional finance was added in through a subsequent email, and notes that the original offer never required for finance to be unconditional.
4. Mr Cimen argues that he remained compliant with the terms of the offer, and, therefore, the Peacocks should be barred from their attempt to resile from the accepted position of the Offer. Mr Cimen submits that in both the Peacocks' email to Mr Giummarra, and their subsequent email to Mr Erciyas, the Peacocks were silent as to termination. Mr Cimen contends that the Peacocks endorsed the continuation of the contracts, as after Mr Cimen emailed the Peacocks to advise them that Mr Erciyas would be handling the settling of the Contracts, they replied that they were happy with how the contracts were proceeding and requested that Mr Erciyas provide the broker's details as soon as possible because they would then be in a position to "get things moving".
5. Mr Cimen argues that Mr Giummarra's letter to Mr Erciyas on 16 August 2021 advising that the Peacocks would meet with the SRO to discuss the moving forward with offering Mr Cimen the SRO contracts was further evidence of their ongoing affirmation of the Contracts. Mr Cimen says it appeared the Peacocks were actively offering to assist with the valuation process, and notes that this was acknowledged in evidence. Mr Cimen notes that, after the Peacocks' meeting with SRO on 17 August 2021, they instructed Mr Giummarra to replicate and on-send the email to Mr Cimen from Steve Harris, Director of Steloni Pty Ltd, SRO's manager, along with a further follow up email on 18 August 2021 regarding SRO's requirements.
6. Mr Cimen does not view the email exchange on 26 August 2021, whereby the Peacocks passed on the financial details of their business to Mr Cimen's valuers on 2 September 2021, as an indication that they did not want to proceed with the contracts. Instead, Mr Cimen submits that, as demonstrated in Mr Peacock's evidence, he was simply hedging his bets that Mr Cimen would not be able to settle, and that had been his attitude throughout the whole transaction. Mr Cimen contends the result of this hedging was that the Peacocks found themselves in a situation where they were stuck between two parties who would not withdraw their respective caveats to allow settlement.
7. Mr Cimen argues that the Peacocks retained NWF Lawyers to liaise with Mr Erciyas so as to gauge whether the Cimen contracts were progressing. Mr Cimen submits that they acknowledged Mr Cimen's intention to meet his commitments under both Contracts through their email dated 27 September 2021.
8. Mr Cimen contends that, in the period from 27 September 2021 onwards, he engaged with the Peacocks, via their solicitors, to organise and prepare for settlement on 3 November 2021 and the subsequently re-scheduled dates.
9. Mr Cimen submits that the parties would have settled on either 3 November 2021 or a suitable re-scheduled later date but for the JJJP Caveat and their competing interest.

1. Mr Giummarra also relies in Sargent[79] and Goonan[80] and posits that once the innocent party possesses knowledge of the facts amounting to repudiation of a contract, the innocent party may elect to affirm or terminate it. But once that election is made it is irrevocable and may not be retracted.[81]
2. Mr Giummarra submits that repudiation had occurred, and the contracts had been terminated by 22 July 2021, it was impossible for the Peacocks' irrevocable election to be reversed; only a new and different contract could confer rights to Mr Cimen.

1. it is common ground that once an election has been made either to affirm or terminate the contract, it cannot be retracted.[82] The Peacocks argue that termination preceded any alleged affirmation, and, therefore, the termination cannot be retracted, whilst Mr Cimen contends that no termination took place, instead an affirmation took place by way of the notice of termination, and this cannot be retracted. For the reasons set out below, I agree with the Peacocks' version as to the nature of the election.
2. First, in my view, Mr Cimen is unassisted in relying upon Dixon J's observations in Bruce. Relevantly, in that case, Dixon J noted the following:

"But after failure to comply with a notice, the party not in default cannot himself exercise rights which he possesses only if the contract continues on foot and, after he has done so, treat the contract as nevertheless discharged by default. The law enables him to choose between rights; and that choice is exercised, whatever he may desire, when he proceeds to do what he could only lawfully do in virtue of one of the two sets of rights between which he may elect".[83]

1. In other words, the party not in default (being the Peacocks) cannot have it both ways. They cannot act as if the contract remained "on foot" and then later "treat the contract as nevertheless discharged by default". Rather the Peacocks had a choice to make. Relying on this passage, the Peacocks would not be able to claim the contracts had ended if they had previously acted in a way that was consistent with the contracts remaining on foot. However, that is not the case here. In the present case, the contracts were terminated, and then Mr Cimen argued that they were affirmed after the termination.
2. Mr Cimen makes the similar argument when he relied on Benny[84] and Carr v JA Berriman Pty Ltd[85]. Here, Mr Cimen refers to conduct that might have taken place after the right to terminate had arisen and argues that such conduct may amount to an affirmation where it amounts to conduct demonstrating that the right to terminate will not be exercised. Again, this is not the case here, as the right to terminate had already been exercised, and this Court is not tasked with reviewing conduct after the right has arisen but before any termination has occurred.
3. Mr Cimen is also not assisted by his reliance on the judgments of Stephen J or Mason J in Sargent[86]. Particularly, Mason J refers to elections relating to rights that have not been exercised, stating that a right of election occurs "when he has a right to...terminate a contract for breach...and the alternative right to insist on the continuation of...the performance of the contract".[87] Stephen J refers to the decision to exercise one of two inconsistent rights for the words or conduct to constitute a valid election. Both authorities are evaluating election in relation to unexercised rights, not the election to affirm after termination has been evidenced. For this reason, neither reasoning is relevant nor supportive of Mr Cimen's claim of affirmation.
4. The Peacocks and Mr Cimen concur that International Trucks[88] is authority for the proposition that affirmation cannot exist without knowledge of the right to rescind. Both parties also agree that the Peacocks did not have knowledge of Mr Cimen's failure to pay the deposit until the time when the Notices were sent by Mr Giummarra. However, Mr Cimen argues that it was at this point in time that affirmation took place, while the Peacocks argue that termination took place previously, and, therefore, it does not matter that the requisite knowledge was attained at the time of the alleged affirmation.
5. The Peacocks submit, and I agree, that the matters referred to in paragraph 2 of the amended reply and set out above do not amount to affirmation. In particular:

(a) The Peacocks did not have knowledge of Mr Cimen's ongoing failure to pay the deposit. On 31 May 2021, when the Peacocks agreed to extend the approval date for the purposes of the subject to finance condition in each contract, or when they gave instructions to Mr Giummarra in the period between 20 May 2021 to 31 May 2021 to remove SC 13 from the Cimen property contract. This is not an affirmation, per the authorities cited above.

(b) The parties did not sign the variation agreement.

(c) The statement in the email from Mr Hanley on 5 June 2021 that the Peacocks "will sell" to Mr Cimen "if he continues to get finance and it comes through" is not an election to affirm. The Peacocks had an election to terminate for repudiation by failing to pay for the deposits. In addition, as at 5 June 2021, the Peacocks still did not know that the deposits had not been paid.

(d) I agree with the Peacocks that Mr Cimen's argument that the Notices amount to an affirmation is inconsistent with the words of Dixon J in Holland.[89] That case, in a manner that bares similarity to this case, included a demand for performance coupled with an intimation that failure to perform would result in the vendor seeking remedies available. While it might be argued, as was argued in this case, that this kind of demand amounts to an affirmation because it is not a decisive termination, this demand was ultimately not considered to be an "unconditional affirmation" of the contracts. Instead, it was said that it "kept the contract open for a limited time and conditionally upon compliance". I agree with the Peacocks that had Mr Cimen complied with the Notices then this would have allowed him to revive the contracts. However, Mr Cimen did not comply with the Notices.

(e) Mr Cimen similarly cannot rely on the letter sent by Mr Giummarra to Mr Erciyas on 2 August 2021. I agree with the Peacocks that despite providing Mr Cimen with two courses of action, being to either comply with the Notices or the conditions of the 2 August 2021 letter, Mr Cimen complied with neither, and, therefore, cannot rely on either to revive the contracts. I agree that "necessary finance", as referred to in the 2 August 2021 letter, means that Mr Cimen would have enough finance to cover the balance of the purchase price under both contracts. Mr Cimen plainly did not possess necessary finance as of 2 August 2021 due to the following:

(i) Mr Cimen had not obtained finance at the time of purchase, despite negotiating for an extended period of time prior to entering the contracts. He subsequently requested a number of extensions to obtain finance approval. He asked for 21 days from 1 May 2021, and then additional further extensions of time to 4 June 2021 and 18 June 2021.

(ii) The closest Mr Cimen came to obtaining finance was some advice from a broker that he delete SC 13.1, so it would be easier for the broker to obtain finance for him by representing that the purchase was for a residential property instead of operating a chicken farm.

(iii) Mr Cimen resisted the prospect of the contract becoming unconditional, as evidenced by his attempts at extensions outlined above.

(iv) Mr Cimen made no serious attempt to obtain a valuation of the farm. Conversely, there is evidence of Mr Peacock reaching out to Mr Cimen to allow for a valuation to occur.

1. I agree with the Peacocks that the commercial purpose of the 2 August 2021 letter was to provide a window for Mr Cimen to obtain finance to complete the transaction on 2 November 2021. This assurance that Mr Cimen would be in a position to settle would not be achieved if it simply turned on Mr Cimen confirming in vague terms that he had the necessary finance.
2. In addition, I agree with the Peacocks that the letter from Mr Ericyas dated 2 August 2021 did not effectively communicate that Mr Cimen had obtained the necessary finance. Instead, it merely declared that he had enough funds to the purchase the business. I agree with the Peacocks that the vagueness of his proclamation that he had finance is demonstrated by the following:

(a) There was no clear statement that a given lender was committed.

(b) The presence of the qualifying statement "albeit not unconditionally" opens up the possibility that apart from the valuation, there may be other conditions being imposed.

1. Based on the above, in my view, clause 3 of the 2 August 2021 letter from Mr Giummarra had not been satisfied by the 2 August 2021 letter in response from Mr Erciyas.
2. I further find that the payment of the deposits on 3 August 2021 is not affirming the contracts, as it is:

(a) Less than the amount requested in the 22 July 2021 notice and did not include costs and interest; and

(b) Only satisfied one requirement of the 2 August 2021, not being clause 3.

1. Considering Mr Cimen's arguments, I do not accept that the 4 August 2021 phone call between Mr Peacock and Mr Giummarra to discuss the implications of the JJJP contracts proves that the Peacocks were aware of their having two competing contracts. Mr Peacock's oral evidence at trial in relation to this phone call set out above suggests that the Peacocks were under the impression that Mr Cimen had not and could not meet clause 3 of the 2 August 2021 letter from Mr Giummarra to Erci Lawyers. That is, that he could not get finance. Mr Peacock knew that Mr Cimen "didn't finish it right" in the sense that he was not able to finish the contracts and comply with the terms of the 2 August 2021 offer, and, therefore, the deal was off the table.
2. I do not agree with Mr Cimen's explanation that the Peacocks' letter to Mr Giummarra on 10 August 2021 amounts to an endorsement of the Cimen contracts. The letter is structured around the Peacocks' impression that Mr Cimen had not obtained finance despite the proclamations of Erci Lawyers on 2 August 2021, and as such, he has not complied with clause 3 of the 2 August 2021 letter. The Peacocks were not satisfied that the vague assurances in the 2 August 2021 email from Erci Lawyers indicated Mr Cimen's capacity to obtain finance and submitted that the reference to the outstanding valuation is an inadequate excuse. Relevantly, the letter states the following:

"We have decided we don't agree with Erci's response to clause 3 of our offer to sell Alp the farm and business and don't think it is appropriate or satisfies this request."

"Erci's response that Alp has obtained finance approval in relation to the property albeit not unconditionally due to the long-outstanding inability of his financier to conduct a valuation of the property is not sufficient. We reckon this is more just an explanation than confirmation in writing of finance approval."

1. Rather than affirming the contracts, these are clear statements that the Peacocks were unsatisfied with the assurances of Erci Lawyers' 2 August 2021 letter. The Peacocks are communicating that the 2 August 2021 letter amounts to an inadequate "explanation" as to the financing delays that is not "appropriate" in the circumstances.
2. The notion that the Peacocks intended to teach Mr Cimen about the ropes of the farm is not a true representation of what is articulated in the 2 August 2021 letter. The relevant statement is prefaced by the qualification that "we don't feel comfortable doing it until they have written proof that he has been 100% approved unconditionally to buy the property". The Peacocks did not want to demonstrate their farming practices to a non-committed purchaser.
3. I refrain from delving any further into the emails that were exchanged between Mr Giummarra and Erci Lawyers, or the Peacocks and Mr Giummarra, or any other emails which Mr Cimen alleges contain further evidence of an affirmation following the 2 August 2021 letters. In my view, all of these were made without prejudice. The Peacocks were at all times reserving their rights, and, therefore, none of this correspondence amounts to affirmation.
4. Finally, I do not accept the premise suggested by Mr Cimen that, if the JJJP caveat was not on foot the parties would have settled the on 3 November 2021, or at any other date. There is no compelling evidence that the parties were cooperatively working towards settlement, there is only correspondence which demonstrates the Peacocks' frustration with Mr Cimen's inability to obtain finance, and the failure to organise the valuation necessary for finance. Moreover, as submitted by JJJP, I am not satisfied that, even as of the date of trial, Mr Cimen was in a position to hypothetically settle the farm and believe that his inability to obtain finance remained as frustrated as they were in 2021.

Eighth issue for trial: If the Court makes an order in this proceeding that the Peacocks complete the JJJP contracts with JJJP:

(a) Is Mr Cimen entitled to damages against the Peacocks for breach of the Cimen contracts?

(b) If so, what is the quantum of those damages?

1. Mr Cimen is not seeking common law damages for breach of contract. He is seeking damage in lieu or in addition to specific performance.
2. Pursuant to s 38 of the Supreme Court Act 1986 (Vic) ("Supreme Court Act"), Mr Cimen will, therefore, need to first establish that he is entitled to a decree of specific performance.[90]
3. The Peacocks submit that Mr Cimen is not entitled to specific performance and as a result is not entitled to damages under s 38 of the Supreme Court Act. They contend that Mr Cimen would need to demonstrate that (as per King v Poggioli[91]):

(a) He has performed or been ready and willing to perform the term of the contract on his part to be then performed; and

(b) He is ready and willing to do all matters and things on his part thereafter to be done.

1. The Peacocks say the first of these requirements has not been satisfied, as the evidence demonstrated:

(a) Mr Cimen was not ready, willing or able on his part to complete the contracts on 3 November 2021. At this point in time, Mr Cimen was still dealing with issues relating to the proposed nomination, as evidence by the letter from Erci Lawyers to NWF Lawyers dated 12 November 2021 which outlined that a new nominee would be introduced to "avoid any dispute over the characterisation of the transaction as a going concern".

(b) Mr Cimen was not ready, willing or able on his part to complete the contracts on 6 December 2021. The loan documentation with the lender Equity One was only signed on 1 December 2021. The 6 December 2021 letter from Erci Lawyers to NWF does not confirm finance, it merely submits the revocation of nomination and put forward the new nomination, along with providing a signed copy of the Pullet Rearing Contract for the Peacocks to arrange for the producer to sign. In their letter to Erci Lawyers dated 7 December 2021, NWF Lawyers noted that Mr Cimen's financier, ANZ Retail and Small Business, had withdrawn from the PEXA workspace on 1 December 2021 and the replacement financier's representative, Purcell Partners, had not yet accepted an invitation to join the space in readiness for settlement.

(c) Mr Matthew Seed, the financier's representative from Purcell Partners, informed Erci Lawyers by email on 3 December 2021, and again on 10 December 2021, that they would need to provide the lender with evidence that the farm will not continue to be used as a chicken farm post-settlement and that correspondingly, no livestock will remain on the property. Erci Lawyers responded in an email dated 15 December 2021 stating that the best way to achieve this was to conduct an inspection, noting "although we understand this item has already been addressed, we believe the only way to verify the absence of poultry products would be to conduct a physical inspection following the settlement of the property". Despite this offer of an inspection, Mr Seed insisted in an email dated 16 December 2021 that they would require some form of written confirmation from either Mr Cimen or Mr Ericyas that the poultry business will not continue and will be removed post-settlement. The Peacocks submit that this requirement was not capable of being met, given that:

(i) The contracts were premised on Mr Cimen buying the farm as a going concern, and entering into new pullet contracts with the third party producer;

(ii) Mr Cimen had already signed a pullet contract with SRO and given it to NWF Lawyers on 6 December 2021 to arrange signing; and

(iii) Mr Erciyas reiterated that Mr Cimen was intending on settling as a going concern in his letter on 12 November 2021 to NWF Lawyers, which stated in clear terms "our client has at all times intended to settle on the basis of a going concern" and had registered for GST and rearranged its nomination of substitute purchasers for the two contracts to avoid any dispute over that.

1. The Peacocks contend that Mr Cimen has not provided the Court with sufficient evidence that he was capable of completing the contracts at the time of trial and subsequently give effect to any decree the Court might make in his favour. Accordingly, Mr Cimen is unable to satisfy the second limb of the above requirements.
2. The Peacocks argue that the screenshots of account balances tendered by Mr Cimen did not clearly identify who owns which account, or that Mr Cimen had the right to appropriate those moneys for his own benefit or the benefit of his nominee in completing the contracts. They submit that the Court is unable to rely on such screenshots as satisfactory evidence to support the premise that Mr Cimen was ready, willing and able to complete.
3. The Peacocks submit the letter from Mainstream Capital Corporation dated 21 November 2023 is also inadequate evidence given that it is unclear on the precise amount of money that would be available to Mr Cimen following the "release of equity", and by extension, whether this would be enough to meet the balance of the purchase price for the farm. Any amount to be advanced would be dependent on the valuation of the property at 198-206 Henry Road, Pakenham, and there is no information available to the Court as to the value of this property which the Court may rely on to infer whether this property would be adequate security for an appropriate "release of equity".
4. The Peacocks submit that the Court should be slow to assist Mr Cimen through either of the equitable remedies of specific performance or damages in substitution or addition to specific performance, in circumstances where Mr Cimen does not come to the Court with clean hands. In Black Uhlans Incorporated v New South Wales Crime Commission, Campbell J said:

"The unclean hands maxim requires the Court to look at the conduct of the litigant who seeks the assistance of equity, rather than the conduct of the defendant. Further, it is conduct which the litigant who seeks the assistance of equity has engaged in in the past which is required to be looked at. In this way it differs from the maxim that he who seeks equity must do equity, which looks at the conduct which a litigant who seeks the assistance of equity undertakes to engage in in the future." [92]

1. The Peacocks note that for the maxim to apply, there must be an immediate and necessary relation to the equity sued for.[93] There must be an immediate and necessary relation to Mr Cimen's entitlement to have the contracts specifically performed and any iniquitous conduct in which he has engaged in the course of or in connection with the transaction.
2. The Peacocks submit that Mr Cimen engaged in iniquitous conduct when, in arranging settlement, he made representations that (pursuant to the contracts) he would purchase the farm as a going concern and enter into a contract with a third party producer to raise chickens. The Peacocks contend that this conduct included the following:

(a) Asking the Peacocks to arrange an interview for him with SRO in August 2021, to which he attended that meeting;

(b) Asking to rearrange his nomination arrangements in November and December 2021, then stating through his solicitors Erci Lawyers on 12 November 2021 to the Peacocks through their solicitors that he "has at all times intended to settle on the basis of a going concern"; and

(c) Asking Peacocks' solicitors on 6 December 2021 to arrange for the pullet contract to be signed by SRO.

1. Consistent with the above, the Peacocks argue that, in his witness statement, Mr Cimen represented to the Court that the prospect of operating the poultry business was the specific reason he was so committed to seeking specific performance for the contracts.
2. Despite this conduct, throughout the course of the transaction in 2021, the Peacocks submit Mr Cimen was assuring the financiers that he had the opposite intention, in that he would be closing down the poultry business. On 8 June 2021, he signed a statutory declaration to declare that he would purchase the farm solely as his owner-occupied property and would not operate any poultry business on the property. On 23 November 2021, he made the same declaration to Equity One in connection with his application for finance. Finally, as late as December 2021, Purcell Partners, for Equity One, was insisting that he provide confirmation that the farm would cease to have any poultry business on it by the settlement date.
3. Under cross-examination, the Peacocks submit that Mr Cimen admitted that it was his prevailing intention to persuade the financier that he would not be operating the poultry business by temporarily closing down operations on the farm. The Peacocks contend that once the bank was satisfied the poultry business looked to have been closed down, Mr Cimen planned to recommence trading. The Peacocks say that this answer amounts to an admission that he planned to simultaneously mislead the vendor, SRO and the Court that he intended on operating the chicken farm after settlement. The Peacocks submit that such conduct has the immediate and necessary relation to the equity Mr Cimen is seeking, in asking for the Court's assistance to enforce a contract tainted by the misleading conduct of Mr Cimen in procuring finance by deceiving the lender as to his true intentions for the farm.
4. If the quantum of Mr Cimen's damages became relevant, the Peacocks contend that any damages should be limited to the difference between the current value of the farm as a going concern ($1,850,000.00) and the sale price under the Cimen contracts ($1,750,000.00 in total), plus $82,500.00 for the return of the deposits.
5. The Peacocks argue that their valuer, Mr Rose, should be preferred over Mr Cimen's valuer, Mr Rann. The Peacocks formed this view owing to the fact that while the other two experts are essentially in agreement, both valuing the farm at $1,850,000.00, Mr Rann's valuation is 46% higher at $2,700,000. 00.
6. The Peacocks submit that this valuation is flawed for the following reasons:

(a) Mr Rann was only provided with instructions to value the current market value of the farm and not the value of the business, while the farm sold as a going concern;

(b) Mr Rann's valuation was not done in accordance with the current standards or rules of the Australian Property Institute, as he conducted what is considered as a "kerbside valuation". While he drove onto the farm, he did not get out of the car or inspect the land or improvements;

(c) Mr Rann erroneously valued the farm on the basis that there were three chicken sheds, when in fact there were only two. The Peacocks submit that Mr Rann's refusal to answer Mr Giummarra's counsel's question regarding the impact of removal of asbestos sheds from the farm would have on his valuation (and the 50% increase he ascribed) should undermine his credibility;

(d) Mr Rann's explanation as to the origins of the 50% increase in valuation he applied also undermines the validity of his report. Mr Rann said that his opinion on the 50% increase in value over two years was justified based on one sale he was aware of for the sum of $1,600,000. When asked whether this was one of the properties in the table in his report, he said it was one in Mr Rose's table. M When asked where the Court could see that in his reflected in his report, he responded, stating it was not included. He then said, he had only seen Mr Rose's report the night before; and

(e) Mr Rann stated that he had valued poultry farms in his career, but none on a going concern basis. He had always valued them on the basis they were sold for alternate use. When confronted with a discrepancy in the description of the number of sheds between his report and that of Mr Rose, Mr Rann acknowledged that he would defer to Mr Rose as he was an expert in the valuation of broiler farms.

1. Finally, the Peacocks say that the damages Mr Cimen seeks by way of reimbursement of costs have not been sufficiently proved. The invoices admitted into evidence are for the most part in the names of entities other than Mr Cimen. Those entities are not parties to the proceeding and are not entitled to damages for their losses. Mr Cimen is limited to losses he has proved he himself has incurred.

1. Mr Cimen admits that he is seeking equitable relief in the form of specific performance or damages in lieu in circumstances where his hands are not clean. Mr Cimen says that the evidence in relation to this conduct was provided honestly and should be believed by the Court. Mr Cimen also professes that, whilst not an excuse, his misleading conduct was performed following his broker's advice on how to get the best deal at the lowest possible interest rate.
2. Mr Cimen's evidence was that he planned to temporarily suspend poultry farming operations to enable him to reassure the bank that he would comply with the terms of his finance, and to simultaneously enable him upon re-commencing farming to meet his obligations under the SRO contracts. Mr Cimen said that had the gone through with this plan, and dishonestly obtained finance under that premise that he would use the farm only as a place of residence, there would be no relief from an equitable standpoint.
3. Mr Cimen emphasises that he ultimately resiled from the questionable advice he received from his broker and, by 28 October 2021, had correctly applied for a business loan. He notes that it was the Equity One business loan which he eventually optioned as his financing choice.
4. Mr Cimen notes that courts of equity have held that a party who is guilty of having unclean hands may "wash one's hands".[94] This can be achieved if, well in advance of the suit, the parties' misconduct ceased. It is also possible to wash one's hands by the imposition of terms on the party who acquires relief. Such was illustrated in the case of Rhodes v Badenach[95] where the Court imposed a condition on a plaintiff to firstly return fraudulently obtained benefits before it would grant them the relief sought.
5. Mr Cimen says that he has washed his hands because he ultimately did not decide to apply for a residential loan, and, therefore, has not fallen foul of the equitable maxim.
6. Mr Cimen insists that, with regards to his ability to complete the contracts, it was his position in his evidence that he remains ready, willing and able to do so and currently has access to private lending allowing him to complete the contracts.
7. By his witness statement and evidence at trial, Mr Cimen deposed to having access to funds and asset backing, including funds held in a business account which was set up exclusively for the purchase of the farm. Mr Cimen submits that, evidenced in his witness statement at paragraph 89, a re-approval would be required for the outstanding finance amount, and this could be done forthwith pending a favourable outcome.

1. For the reasons set out below, I am not satisfied that Mr Cimen was ever in a position to obtain the funds he required to settle the sale, nor am I satisfied there is sufficient evidence he was in a position to settle at the time of trial.
2. The finance which Mr Cimen sought to obtain was to be advanced on the condition that Mr Cimen would not use the farm as a poultry farm, and that the sale was not made as a going concern. This directly contradicts a number of contracts, correspondence, and other assurances presented by Mr Cimen that the farm would remain operational as a chicken farm and that the sale was to be made as a going concern.
3. I rely on the following matters as evidence of Mr Cimen's intention to continue to operate the chicken farm business:

(a) In the letter from Erci Lawyers to NWF Lawyers dated 12 November 2021, Mr Erciyas states that "we confirm that our client has at all times intended to settle on the basis of a going concern", and "to avoid any dispute over the characterisation as a going concern, our client has provided revocation of nomination form and new nomination form" (which accompanied the letter). In this letter Mr Erciyas also states that Mr Cimen has arranged for the registration of GST;

(b) The contracts required Mr Cimen to buy the farm as a going concern, and that he enter into a new contract with SRO; and

(c) Mr Cimen signed a pullet contract with the producer, SRO and provided it to the Peacocks' solicitors on 6 December 2021 to "arrange for the Pullet contract to be signed by the Produced by the date of settlement".

1. The representative of Mr Cimen's financier, Mr Seed, had on a number of occasions informed Mr Cimen that finance would not be forthcoming unless Mr Cimen provided evidence that the farm would not be used as a chicken farm after settlement. There is much correspondence from Mr Seed's office insisting that Mr Cimen provide proof that the property would not remain an operating chicken farm. In response to these conditions of approval, Erci Lawyers sent Mr Seed emails assuring him that the farm would not be used as a chicken farm, and even offering to conduct an inspection post settlement ensure that this remained the case.
2. Mr Cimen was caught in between promising the Peacocks that he was purchasing the farm as a going concern, and promising the future lenders that he would not. Given the above evidence, I find that, at all times, Mr Cimen intended to continue to operate a chicken farm on the property. I am not satisfied that he was ever in a position to meet the conditions prescribed by his financiers, and, therefore, was never in a position to obtain finance.
3. The 21 November 2023 letter from Mainstream Capital is likewise insufficient to demonstrate that Mr Cimen has access to adequate finance. The letter clearly states that the release of funds was "subject to the valuations". In other words, as of 21 November 2023, the lender has not conducted a valuation of the farm that Mr Cimen was relying on for security, and, therefore, was not in a position to provide the necessary finance to Mr Cimen.
4. I agree with the Peacocks that Mr Cimen did not come to the Court with clean hands. I also agree with the Peacocks, in line with the principle in Black Uhlans, that there is a direct relationship between the iniquitous conduct and the equity sued for. That is, the specific performance of the contracts. Despite calling for enforcement of the contracts, Mr Cimen's ability to perform his own obligations under the contracts were premised on misleading conduct.
5. In support of this finding, I rely on the following matters:

(a) On 8 June 2021, Mr Cimen signed a statutory declaration to declare that he would "not operate any poultry business on the property" and that he was making the purchase as an "owner occupier"; and

(b) On 23 November 2021, Mr Cimen made the same statutory declaration to Equity One in relation to his finance application, declaring that "the pullet rearing business currently operated from the property will cease as at and from the date of settlement", and that purchase "will be completed devoid of a going concern".

1. The relevant iniquity occurred when Mr Cimen misled various financiers, the Peacocks, the third-party vendors, as well as the Court as to whether he intended to purchase the farm as a going concern and continue to operate the chicken farm. As already discussed, Mr Cimen repeatedly assured various financiers that he would not continue to operate the chicken farm, even going so far as to sign statutory declarations explicitly denouncing any intention to use the farm for that purpose. Despite these assurances, Mr Cimen stated in his evidence that he never intended to cease operating the chicken farm. This was apparent when Mr Cimen responded under cross-examination as follows:

Mr Rimmer: "So you were required under the contract, weren't you, to continue using this property as a pullet farm, to take the birds from them several times a year, is that no right?"

Mr Rimmer: "But the reality is, as you're telling the purchaser's declaration acknowledgement, whoever is receiving this document, you're telling them you are confirming acknowledgement that the pullet reading business will cease from the date of settlement."

Mr Cimen: "Yes, this wasn't my want, this is what the bank wanted."

1. I am not persuaded by the fact that Mr Cimen ultimately applied for a business loan, and the argument that this is proof that he wished to correct his dishonest conduct and "wash his hands" of an iniquity. The pursuit of the business loan was simply a pragmatic commercial decision. Under cross examination Mr Cimen repeatedly admitted he saw no issue in misleading previous lenders about his intentions. This is dishonest and inequitable conduct, and had these previous lenders decided to grant Mr Cimen finance, I am not convinced that he would have resiled from these dishonest representations.
2. If I am wrong in my findings set out above, then Mr Cimen's damages are in the amount of $182,500.00, comprising:

(a) The difference between the current volume of the farm as a going concern in the sum of $1,850,000.00 and the sale price under the contracts in the amount of $1,750,000.00; and

(b) $82,500.00 being the deposit.

1. For reasons previously stated, I refer the evidence of Mr Rose and Mr Ferrier over that of Mr Rann. Otherwise, the damages sought by Mr Cimen contained in his further and better particulars of loss and damage dated 3 November 2023 have not been sufficiently proved. The invoices in evidence are, for the most part, in the names of entities other than Mr Cimen. Those entities are not parties to this proceeding, such as Alpaslan Investments Pty Ltd. Mr Cimen would only be entitled to losses that he himself has incurred.

Ninth issue for trial: Did Mr Giummarra owe the Peacocks a duty of care as their solicitor on or before 5 June 2021 to advise them:

(a) the effect of the "subject to finance" clause in the Cimen contracts; and/or

(b) that they were not free to sell the farm to a third party unconditionally unless and until Mr Cimen had terminated the Cimen contracts under the "subject to finance" clause?

1. The balance of the issues only become relevant if the Court finds that both the Cimen and JJJP contracts remain on foot and are entitled to specific performance and/or damages.
2. Given my anterior findings, that:

(a) Mr Cimen repudiated his contracts by failing to pay the deposits by 5 June 2021;

(b) The Peacocks' acceptance of the repudiation by entering into fresh contracts with JJJP, alternatively, by the subsequent letters between the lawyers; and

(c) Mr Giummarra is not obliged to indemnify the Peacocks for any loss,

1. However, if I am wrong in my analysis, then the following reasons apply.

1. The Peacocks submit that a relevant duty of care arose in the course of Mr Giummarra's execution of his retainer to act as solicitor for the Peacocks as vendors of the farm.

(a) The Peacocks reached out to Mr Giummarra for advice via email on 24 May 2021 in response to a request they received from Mr Cimen for extension of finance approval dates to 4 June 2021. The email, relevantly, stated:

"We are fine with taking the clause out and letting him to go away and try to get his finance. But we aren't willing to keep the farm off the market any longer while 'he's doing so.

We've been here before a couple of times lately. Waiting, waiting with the farm off the market and nothing comes of it. One time costing us a potential sale!!

So if you think it's ok to delete that clause 13. I will get back to Adam and tell him to tell the prospective buyer it's ok and he can proceed with him trying to get finance."

(b) The Peacocks contend that a reasonable reader would have adduced from this email that Peacocks misunderstood the manner in which the finance condition operated in the contracts Mr Giummarra had in fact prepared the contracts completed with the particulars negotiated with the purchaser's solicitor Mr Erciyas, before the sale. The Peacocks were evidently under the misapprehension that the contracts had ended, that is, had "finished" if finance was not obtained by the approval date. This was in fact incorrect, as the contract merely became unconditional unless the purchaser gave written notice withdrawing the sale (which had not occurred).

(c) The Peacocks argue that it in light of this correspondence, it was reasonably foreseeable to Mr Giummarra that unless Mr Giummarra advised the Peacocks as to the true nature of GC 14 and explained that the contracts were now unconditional and had not ended, the Peacocks may agree to extend the finance approval date to 4 June 2021 and then re-sell the farm to a third party on the expiration of that extended approval date without first waiting for written notice from Mr Cimen ending the contracts in accordance with the finance conditions.

1. Mr Giummarra was retained by the Peacocks to act for them generally in the sale of their farm.

(a) The Peacocks provided information that Mr Giummarra required to prepare a form of contracts for the agent to use in selling the farm.

(b) Mr Giummarra then prepared the contracts and provided them for use in the sale. He referred to himself as "vendor's legal practitioner or conveyancer" in the particulars of the property contract and as "vendor's solicitor" in the particulars of the business contract.

(c) The Peacocks consulted him for advice twice prior to signing the Cimen contracts. The advice requested from the Peacocks and provided by Mr Giummarra related to amendments requested by solicitors acting for Mr Cimen as a prospective purchaser. Advice was provided once in February 2021 and again in April 2021.

(d) Mr Giummarra contacted the Peacocks for instructions on 18 May 2021 after receiving a direct email from Mr Cimen. He requested a copy of the contracts of sale from the Peacocks.

(e) The Peacocks replied with instructions on 19 May 2021.

(f) Mr Giummarra received a letter from Mr Cimen's solicitor requesting an amendment to the Cimen property contract and an extension to the finance approval date. He then received instructions from the Peacocks by email on 24 May 2021 and provided them advice over the phone on the same day.

1. The Peacocks argue that the above demonstrates that Mr Giummarra was retained to act for the Peacocks as solicitor for them in the sale of their farm by 24 May 2021 at the latest (and probably as early as February 2021). Mr Giummarra's own evidence is that he was acting as solicitor for the Peacocks in the sale, and as proof of his retainer, well prior to the signing and exchange of contracts he had rejected the request from Mr Lonappan to retain him to act in Mr Lonappan's purchase on the grounds he was already acting for the vendors.
2. The Peacock's rely on the Court of Appeal decision in Lederberger v Mediterranean Olives Financial Pty Ltd, where it was considered a solicitor's duty of care to advise a client in a transaction when retained to act generally in the following terms, which:

"[I]t has long been accepted that a solicitor should make clear to his client the legal effect of a step which the client is proposing to take. Accordingly, if, as in this case, a solicitor is retained generally to act in a client's interests in relation to a transaction into which the client is proposing to enter - here, obtaining probate and consequently accepting appointment qua trustee as a member of the partnership - the solicitor is bound to go through the contractual documents - here, at least the will read in light of the circumstances which were known to obtain - and explain to the client in terms she is likely to understand the rights and obligations to which it will subject her. Especially is that so where, as here, the client is inexperienced in the relevant area or the documents are in unusual form. Furthermore, even where a client is not lacking in sophistication, but the relationship between the solicitor and the client is one which suggests that the client is reliant on the solicitor for such advice as may be required, there is a duty on the solicitor to give that sort of advice and it may arise whether or not the advice is specifically sought." [further citation omitted] [96]

1. The Peacocks submit that this is consistent with earlier authorities. They cite the classic statement of principle in Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp[97] was restated by Rees J in About Life Pty Ltd v Maddocks Lawyers[98]:

"As a general principle, the duty of a solicitor under a retainer is to protect the client's interests and carry out the client's instructions in the matters to which the retainer relates, by all proper means. It is an incident of that duty that the solicitor will consult with the client on all questions of doubt which do not fall within the express or implied discretion left to the solicitor, and to keep the client informed to such extent as may be reasonably necessary."

1. The Peacocks argue that their inexperience in conveyancing issues was demonstrated in the confused instructions they gave Mr Giummarra in the period from mid-May 2021 to 5 June 2021 regarding their "rights" to treat the Cimen contracts as at an end and to offer the farm for sale to third parties. The Peacocks submit that even if they did not specifically ask Mr Giummarra some of these questions, this does not mean the duty did not arise to advise them on those rights and protect them from the risk of the reasonably foreseeable loss that they would incur if they acted on the premise of their instructions. This is magnified, they assert, given the Peacocks' lack of experience and obvious misunderstanding of their legal rights. The Peacocks rely on the authority of AVWest Aircraft Pty Ltd v Clayton Utz (A Firm) (No 2), in which Vaughan J included the following propositions summarising the scope of a solicitor's duty of care if retained to act generally in a transaction for a client:

"Where advice is sought as to whether a transaction can be implemented in a particular way there is a duty to warn a client of any material risk. A risk is material if a reasonable person in the client's position would be likely to give significance to it or if the solicitor is aware (or should reasonably be aware) that the particular client, if warned of the risk, would be likely to give significance to it. The scope of the duty may vary depending on the characteristics of the client. An inexperienced client may need explanation and advice before entry into a commercial transaction that would be pointless - or perhaps an impertinence - for an experienced businessperson. A solicitor will have to exercise judgment as to the manner in which he or she deals with the various aspects which could possibly arise for consideration. There is a point beyond which lawyers cannot be expected to go unless they are specifically asked to examine the possibilities."[99]

1. The Peacocks further cite Gino Dal Pont's observations in relation to inexperienced clients:

"[A] lawyer who in the course of carrying out instructions notices, or ought to notice, a problem or risk for the client of which it is reasonable to assume that the client may not be aware, must warn the client. This emphasises that the duty to warn is impacted upon by the nature of the client. As to the latter, the remarks by Pullin J in Capebay Holdings Pty Ltd v Marks Healy Sands should be noted:

'There is clearly a difference between the way advice is given to an experienced client and a client completely inexperienced in the type of transaction in respect of which a solicitor is retained. To take an obvious example, a solicitor retained by a bank to act in relation to a mortgage transaction, gives advice in a much different way from the advice given to the person who has never before been involved in a mortgage transaction. A solicitor acting for a bank, may simply have to tell the bank that there is a caveat protecting another interest in property over which the bank is to take security. That advice and a copy of the caveat may, in a particular case, be sufficient to inform the bank of the prior interest and the consequences. On the other hand, a solicitor acting for a completely inexperienced person, might have to start by explaining what a caveat is, how it operates, how it might be removed and what the effect of a claimed prior interest would be on that person's security.'"[100]

1. The Peacocks admit that they were not "completely inexperienced" given that they had some knowledge as to how chicken farms were sold, but they argue that they could not be considered "sophisticated" buyers and sellers of poultry farms either. As has already been alluded to, their inexperience was no more evident than in their obvious misunderstanding as to how the subject to finance clause worked. The Peacocks submit that this level of misunderstanding was apparent through their instructions to Mr Giummarra, and that he should have reasonably been aware through these confused instructions the likelihood that they would attach significance to that advice in putting the farm back on the market for sale to third parties.
2. The Peacocks cite Allsop P's decision in David v David, in which it was held:

"If, however, the solicitor during the execution of his or her retainer learns of facts which put him or her on notice that the client's interests are endangered or at risk unless further steps beyond the limits of the retainer are carried out, depending on the circumstances, the solicitor may be obliged to speak in order to bring to the attention of the client the aspect of concern and to advise of the need for further advice either from the solicitor or from a third party."[101]

1. The Peacocks submit that the presence of a duty of care is predicated on reasonable foreseeability of the risk of harm to the Peacocks as clients by failing to provide the relevant advice. They contend the limiting consideration is reasonableness, which requires that account be taken both of the Peacocks' interests and of burdens on Mr Giummarra as a solicitor.
2. The Peacocks respond to paragraph [35] of Mr Giummarra's closing submissions, in which it is said that Allsop P in David "makes plain" that it is actual knowledge, not constructive knowledge, of the solicitor that is relevant to the duty.[102] The Peacocks argue that the above authorities actually did say that constructive knowledge of the risk to the client is sufficient, in circumstances where the solicitor learns of facts which puts the solicitor on notice of that risk.[103] In this case, the Peacocks submit the risk was that they re-sell the farm to a third party without waiting for a notice from Mr Cimen under the finance conditions ending the Cimen contracts, and then end up with two sets of contracts on foot. They rely on the following facts which, they say, put Mr Giummarra on notice of that risk were:

(a) their email to Mr Giummarra on 19 May 2021, in response to Mr Cimen's direct request to Mr Giummarra for an extension of time to obtain finance, said:

"If we don't get it by Friday we will put the farm back on the market and if he comes back with the finances we'll re visit it then."

"In this property climate we can't just leave the farm off market endlessly while we're waiting for someone that may or may not get finance. We've given him 6 weeks already."

(b) the Peacocks had said that the contracts had "finished" on 22 May 2021 and that they intended to put the farm back on the market under circumstances where he had no instructions that Mr Cimen had ended the contracts under the finance conditions;

(c) Mr Cimen had requested an extension to the approval date direct on 18 May 2021 and through Erci Lawyers on 20 May 2021;

(d) on 5 June 2021, in response to a further request from Mr Cimen to extend the finance approval date for a second time, the Peacocks emailed the agent Mr Hanley with a copy to Mr Giummarra in the following terms:

"So no, we aren't prepared to extend the contract any further. This has dragged on long enough. If Alp wants to proceed with his loan application and the farm is still on the market when he gets things sorted, we'll have a look at it but as it stands it's back on the market.

So it's up to him. If he wants to keep going with it he can, but there's definately [sic] no guarantee that if and when his finance comes through the farm will still be available for those conditions."

(e) the finance conditions in the Cimen contracts (being in the form Mr Giummarra had drafted subject to amendments he had approved) provided that, if Mr Cimen was unable to obtain finance approval by the agreed approval date, the Cimen contracts would become unconditional unless he gave notice withdrawing from the Cimen contracts.

1. In summary, the proposition that the Peacocks put is:

(a) If a client is under the apprehension they have a right in a transaction, to which they have informed the solicitor;

(b) A solicitor acts as if the client does not have the right; and

(c) There is reasonably foreseeable risk that the client may act on their false understanding of their rights in the transactions and suffer loss as a result, the solicitor has a duty to advise their client of their true rights, and/or the risk of loss if the client were to act in accordance with their misapprehension of their rights. This duty becomes more paramount if the client is inexperienced in transactions of the kind in which the solicitor is instructed to act.

1. Mr Giummarra's primary submission is that Mr Cimen's claims against the Peacocks will fail, meaning the third-party claims against him should also be dismissed. There is no remaining claim to be made against Mr Giummarra.
2. The following submissions are premised on a finding that Mr Cimen's contracts remain on foot but, the JJJP contracts have priority. In that event, Mr Cimen recovers damages against the Peacocks.
3. Mr Giummarra claims, given the limited role entrusted to him, he did not owe the duties alleged.
4. Mr Giummarra argues that he is being accused of failing to do something that he was not asked to do and that it was not within the scope of this retainer. Mr Giummarra submits his contractual obligations could not involve a requirement that he give advice beyond the scope of the retainer, and so the claim must rest only in negligence. He contends that his alleged failure is of a kind often described as the breach of a "duty to warn".
5. Mr Giummarra argues that the claim made against him in the amended third-party notice is that the Peacocks did not know, but he asserts that it was the fact that:

(a) the Cimen contracts had become unconditional by the expiry of the finance condition;

(b) the Peacocks could not sell to another party without terminating the Cimen contracts; and

(c) the Peacocks had a right to terminate the Cimen contracts because the deposits had not been paid.

(d) Mr Giummarra submits that it is alleged that he breached his duty by failing to correct the Peacocks' misapprehensions, that he knew or ought to have known about by 5 June 2021.

1. Mr Giummarra points out that it was never pleaded that the provision of the advice supposedly required by the Peacocks was an express term of the retainer. Mr Giummarra submits that there is also no evidence of any request for this advice. He argues that the duty to advise supposedly arose from the time of Mr Giummarra's knowledge (or the fact that he ought to have known) of the misapprehension.
2. Mr Giummarra contends the limited circumstances in which a solicitor comes under a duty to give advice beyond the scope of their retainer were described by Nettle JA in AJH Lawyers Pty Ltd v Hamo:

"depending upon the circumstances, a solicitor may come under a duty to do more than simply perform the task defined by his instructions. A duty to warn may arise where circumstances give rise to a real and foreseeable risk of economic loss by the client..."[104]

1. Like the Peacocks, Mr Giummarra also relies on the decision of Allsop P in David.[105]
2. However, Mr Giummarra submits that Allsop P made it "plain" (and Nettle JA said nothing to the contrary) in David, the duty to warn arises from actual knowledge of a solicitor, not constructive knowledge.[106] Mr Giummarra asserts that to the extent that the claim is made based on something that Mr Giummarra ought to have appreciated, it must immediately be rejected.
3. Mr Giummarra contends that it is also well-established that a solicitor has no duty to repeat advice already given.[107]
4. Mr Giummarra submits that any supposed duty begins on 24 May 2021 with the email from the Peacocks to Mr Giummarra. In that email, the Peacocks tell Mr Giummarra that the contracts of sale with Mr Cimen ended at 22 May 2021. Mr Giummarra says that the Peacocks never asked him to advise on the correctness of this assertion, and that he could not provide this advice without the proper instructions. Mr Giummarra notes that, at this point, he did not even have a copy of the contract and he also could not have known whether he had seen all communications passing between the parties, especially in circumstances where the real estate agent had dealt with the termination of the Bijesh contract without recourse to Mr Giummarra. Mr Giummarra also was not aware that the deposits had not been paid. Mr Giummarra says that it was not a particular of negligence that he failed to scrutinise the contracts when it was finally provided to him (albeit amended by Erci Lawyers) on 1 June 2021, and he was never informed by the Peacocks which of the terms of those contracts were in the original executed document, and what changes had subsequently been made.
5. Mr Giummarra telephoned Mr Peacock on 24 May 2021 and received instructions to extend the subject to finance term to 4 June 2021. Mr Giummarra says that Mr Peacock's understanding of the status of this contract became irrelevant between 24 May 2021 and midnight 4 June 2021 because, during that window, his clear instructions were that he would allow Mr Cimen further time to obtain finance, and he correspondingly instructed Inline Real Estate not to sell to another purchaser in that window. Mr Giummarra submits that his advice in the 24 May 2021 correspondence was correct, as he explained that the Peacocks could not sell until the Cimen contracts was "finished". As Mr Giummarra's advice was correct, he says, he could not know that the Peacocks had misunderstood their obligations and, therefore, would misconstrue the advice.
6. Mr Giummarra notes that the Peacocks entered into a contract with JJJP less than a day after the Cimen contracts became unconditional on Friday, 4 June 2021. As so much of the negotiations had been handled by the real estate agents, Mr Giummarra says he could not have known that the Peacocks would sell the farm to JJJP while still under contract. He claims he only acted when called on and otherwise the matter was handled by the real estate agent. Mr Giummarra says that he discharged his duty to warn the Peacocks that they could not enter into simultaneous contracts when he provided advice over the phone on 24 May 2021. He contends he was not obliged to repeat this advice over a week later. Mr Giummarra argues that the Peacocks have not established a factual basis in the matters known to Mr Giummarra to give rise to a duty on Mr Giummarra to warn that the end of the subject to finance period would not, of itself, end the contracts.

1. I agree with Mr Giummarra that providing advice to the Peacocks apprehending all contingencies in their transaction with Mr Cimen was beyond the scope of his original retainer, which was to facilitate the sale of their farm. However, as acknowledged by Mr Giummarra, there are limited circumstances in which a solicitor will be bound by a duty to provide advice beyond the scope of their retainer. These circumstances were effectively outlined by Nettle JA in _Hamo,[108]_as well as by Allsop P in David, [109] set out above and relied on by the parties.
2. Therefore, the question before me is whether, prior to the 5 June 2021 sale to JJJP, Mr Giummarra was aware that the Peacocks were pursuing a second sale despite the Cimen contracts being unconditional. Such degree of knowledge would, therefore, obligate Mr Giummarra to intervene, correct the Peacocks' misapprehension, and avoid this subsequent sale.
3. I do not agree with Mr Giummarra's reading of David that actual knowledge is required and that constructive knowledge is insufficient. The above passage does not state that there needs to be actual knowledge of the precise issue or breach, just enough knowledge about "facts" that would suggest that the client's "interests are endangered". Therefore, it is irrelevant that Mr Giummarra did not possess a copy of the contracts prior to 5 June 2021, and did not know with absolute certainty that GC 14 remained in the contracts, as he still had enough facts at hand to know that GC 14 was most likely still in the contracts and that the Peacocks were at risk of breaching it.
4. My conclusion that Mr Giummarra ultimately did possess the requisite knowledge and, therefore, was under the above duty, is heavily influenced by Mr Giummarra's own evidence given at trial.
5. Mr Giummarra made a critical admission in relation to the email the Peacocks sent to him on 19 May 2021. The relevant passage of that was interrogated at trial read as follows:

"We've spoken to Adam this morning and told him, we want something in writing from the bank he's dealing with to state the finance has been approved and they just need the extra two weeks to finalize it. If we don't get it by Friday we will put the farm back on the market and if he comes back with the finances we'll re visit it then.

In this property climate we can't just leave the farm off market endlessly while we're waiting for someone that may or may not get finance. We've given him 6 weeks already."

1. At trial, Mr Giummarra acknowledged that the above email suggested that the Peacocks were planning on taking a course of action which conflicted with their obligations under the Cimen contracts. Specifically, the Peacocks planned course of action would be incongruous with GC 14 which provided Mr Cimen with an unconditional contract following the expiration of the subject to finance clause. The relevant exchange between Mr Giummarra and counsel for the Peacocks, Mr Rimmer, was as follows:

Mr Rimmer: "Okay. I suggest to you though that it's something that is not - that what I said before is correct, that's not consistent with general condition 14. You'd agree with that, wouldn't you?"

Mr Rimmer: "Yes. So you'd agree that if a client - and you're acting for the vendors - that if a client says that to you, that you would form a view that they needed some advice on this?"

1. The only way to interpret the above exchange is that Mr Giummarra accepts that he knew the Peacocks were planning on breaching GC 14, and, ultimately, agreed that, given his level of knowledge, he should have stepped in and provided advice.
2. I do not accept that Mr Giummarra is absolved of this obligation because he did not have a final copy of the contract. Critically, at trial Mr Giummarra acknowledged that he expected that the finalised contract would be the same as the ones that he originally drafted, including the amendments which he had approved. The relevant exchange is as follows:

Mr Rimmer: "Yes. Now, you don't actually have the contracts at this stage, but you know, this is - the contracts are prepared by you aren't they? So they're going to be in the form that you've prepared them?

Mr Rimmer: "And you would expect that they would have those amendments in them, that you'd approved for the Peacocks in April?"

Mr Rimmer: "But other than that, you would expect that the contracts..."

Mr Rimmer: "Would be in the form you prepared. So that general condition 14 would be in it, and it wouldn't be your first conveyance' I'm not suggesting that. So therefore, you would know well from experience how this works? How the general condition works?"

1. The 24 May 2021 email which the Peacocks sent to Mr Giummarra is further proof of their misunderstanding of the Cimen contracts and the concept of an unconditional contract, along with their intention to potentially re-sell the property. Importantly, the email states:

"The contract of sale has finished as of last Saturday, 2nd of May.

We are fine with taking the clause out and letting him to go away and try to get his finance. But we aren't willing to keep the farm off the market any longer while he's doing so. We've been here before a couple of times lately. Waiting, waiting with the farm off the market and nothing comes of it. One time costing us a potential sale!!"

1. I agree with the Peacocks that the reference to the Cimen contracts as having "finished" demonstrates their erroneous belief that their contract with Mr Cimen ends at the expiration of any subject to finance clause, and, therefore, is proof that they did not understand how GC 14 or unconditional contracts work. At this point in time, the Peacocks were open to Mr Cimen obtaining finance and completing the purchase, but they also believed that they were not wedded to Mr Cimen and thought they could still entertain and ultimately pursue other offers. Their frustration with Mr Cimen's inability to obtain finance is what fuelled their desire to place the farm back on the market, a move designed to attract what they hoped were more committed and organised buyers.
2. As discussed below, Mr Giummarra's advice in the phone conversation that occurred later on the 24 May 2021 did not mitigate their erroneous beliefs. If anything, the phone conversation may have inadvertently reinforced such erroneous beliefs, and, therefore, is an example of how Mr Giummarra breached the above duty.

Tenth issue for trial: If yes to 9, did Mr Giummarra breach that duty?

1. The Peacocks submit that, during their phone call with Mr Giummarra on 24 May 2021, the Peacocks expressed that they were willing to extend finance but wanted to keep the farm on the market. Mr Giummarra advised that they could do that but could not sell until the contract "finished". While true, they contend this advice was misleading in the context, as Mr Giummarra knew that the Peacocks had used the very word "finished" when they told him in their earlier email that day that they believed the contract had already "finished" on 22 May 2021, and he also held no instructions that Mr Cimen had given any notice under the finance conditions to bring the Cimen contracts to an end. To this end, the Peacocks contend that Mr Giummarra was on notice that they needed further advice that the contract would actually only "finish" if Mr Cimen were to give notice to that effect. Absent that notice from Mr Cimen, the Peacocks were opening themselves up to the risk of a double sale (should they decide to re-sell the farm) on expiration of the extended approval date on 5 June 2021.
2. The Peacocks submit it is the misleading nature of the partial advice that Mr Giummarra gave on 24 May 2021 that should lead the Court in this case to reject Mr Giummarra's submissions that a solicitor does not have a duty to repeat advice already given. The Peacocks claim the import of Chesterman J's critique in Scottsdale Homes Pty Ltd v Gemkip Pty Ltd[110] of Staughton J's analysis in Yager v Fishman[111] of the solicitor's duty, is that the solicitor in the Yager case had been negligent in giving advice that was, in the circumstances, misleading and which should have been fuller.
3. The Peacocks submit this is their case as well. The advice they needed to avoid the reasonably foreseeable risk that they might sell to a third party on or after 5 June 2021 without first waiting for Mr Cimen to give a notice ending the contract was not that they could not sell unless the Cimen contracts were "finished", but rather the circumstances in which the Cimen contracts would be finished.
4. The Peacocks argue that Mr Giummarra's evidence appears to accept in large part the breach the Peacocks complain of, as follows:

(a) Mr Giummarra accepted that the email dated 19 May 2021 demonstrated that the Peacocks misunderstood how the finance conditions of the Cimen contracts actually worked (although he stated that he could not remember what he thought of the email at the time). Mr Giummarra also accepted that a vendor client in the position of the Peacocks would need further advice after having written an email such as the email on 19 May 2021, and that this would be so whether the client asked for it or not.

(b) Mr Giummarra said that he knew that the Cimen property contract contained GC 14 and how that clause worked.

(c) Regarding the email dated 19 May 2021, although he could not remember what he in fact thought about the Peacocks' statements in that letter, he accepted that it was inconsistent with how the finance conditions in the Cimen contracts actually worked. He also accepted that a vendor client who said what the Peacocks put in their email on 19 May 2021 would need further advice on that email, and this would be so whether the client asked for it or not.

(d) Regarding the email on 24 May 2021, he agreed the Peacocks were seeking his advice as their solicitor in that email. Again, he could not remember what he thought at the time on reading that email but agreed that it was written by a person who did not understand how GC 14 worked.

(e) Regarding the telephone conversation he had with the Peacocks later on 24 May 2021, its purpose was to respond to their email and to provide advice. Mr Giummarra accepted that he did not know how the Peacocks would know what he meant by using the term "finished" in his advice, without further advice about what he meant by "finished". He accepted that he had not advised them what he meant by "finished", and even volunteered that he would have written down that advice if he had given it.

1. Regarding his email on the morning of 5 June 2021, responding to the Peacocks' email to the agent into which he had been copied, he said that his response did not include any advice or warning of the kind he had given by telephone on 24 May 2021. Mr Giummarra provided no further advice after that and could not be sure when he read the last email the Peacocks had sent at approximately midday on 5 June 2021.
2. The Peacocks submit that Mr Peacock's responses under cross-examination reveals how confused he was about the operation of the subject to finance clause under the Cimen contracts. Mr Peacock argued that he was under the impression that Cimen contracts had finished on 22 May 2021. Mr Peacock also said at trial that he regretted extending the finance approval time and was an "idiot" for doing so, he said that he decided to so because he and Mrs Peacock were just "good people". Mr Peacock did concede that "probably, looking back on it" Mr Giummarra was telling them that the Cimen contracts were not finished. It was then put to him that he had not asked for Mr Giummarra's advice on 24 May 2021 or on some other occasion whether the Cimen contracts were finished, which he conceded he had not. Even his understanding of his position while the extended finance clause was on foot, and when that came to an end on 5 June 2021, was confused.
3. The Peacocks submit that a solicitor is not excused from their duty to advise simply because an inexperienced client failed to ask for the specific advice. The Peacocks argue that people hire lawyers to guide them through transactions and provide them advice precisely because they do not understand the legalities themselves. Nor is it an adequate answer, if the client says, when pressed and trying as best as he can some years later to remember advice given in a brief telephone call, that the solicitor "probably" meant the fuller advice the client needed, if the advice given was in all the circumstances misleading and incomplete.
4. The Peacocks note that the standard of the solicitor's duty of care to the client is not minimised by reason that the solicitor acts for a reduced fee. Therefore, whether Mr Giummarra charged a fee for his work or not is irrelevant to this third-party claim against him.

1. Mr Giummarra submits that his retainer was very narrow and the occasion to give the advice alleged to have been overlooked never arose. As such, he asserts that he discharged his professional and contractual obligations to the requisite standard.
2. In support of this position, Mr Giummarra relies on the following matters.
3. Mr Giummarra submits that he was retained to prepare the interdependent contracts to sell the farm on 5 February 2021. By email dated 8 February 2021, Mr Giummarra provided the Peacocks with the contracts, including the related s32 statement. He asked if the Peacocks had any questions to "please call". Mr Giummarra notes that the Peacocks did not call him.
4. Mr Giummarra contends that the Peacock's selling agent, Mr Hanley, edited the contracts to rectify minor errors identified by Mr Peacock, however, he was not given a copy of the revised contracts.
5. On 19 February 2021, Mr Cimen's solicitors emailed Mr Giummarra, seeking the addition of special conditions, including a subject to finance clause. Mr Giummarra says that he called the Peacocks to discuss Mr Cimen's request for "in principle" agreement to the addition of the three conditions. Mr Giummarra relies on Mr Peacock's witness statement which did not give evidence that he asked for an explanation or advice on any of the proposed changes. Mr Giummarra contends that he did not give advice on how to respond and Mr Peacock sought no advice on the amendments but rather approved the subject to finance clause but not a clause relating to a soil test. Mr Giummarra says that he then communicated that approval to Mr Cimen's lawyers.
6. Mr Giummarra argues that without informing him the Peacocks then:

(a) engaged a second agent under an exclusive authority, Inline Real Estate;

(b) Mr Hanley continued to negotiate with Mr Cimen, including the rejection of a request for further time to obtain finance;

(c) the Peacocks informed Mr Hanley that Inline Real Estate had been engaged;

(d) while the contracts were being considered by Mr Cimen, the Peacocks entered into the contracts with Mr Lonappan;

(e) under the contracts with Mr Lonappan, which had been drafted by Mr Giummarra, SC 14 (the subject to finance clause) applied and the deposit was payable to the agent; and

(f) the Bijesh contracts were terminated without recourse or notice to Mr Giummarra.

1. Mr Giummarra submits that in April 2021, when Mr Cimen's solicitors requested amendments to Mr Giummarra's contracts, the Peacocks expressed a view as to the acceptability of the proposed changes to Mr Hanley and asked him to make the amendments. Mr Giummarra contends that, apparently as an afterthought, Mr Peacock emailed him requesting his views on the proposed changes and asked him to take a "quick look". Mr Giummarra argues that Mr Peacock did not ask him for specific advice other than what might be termed "obvious red flags".
2. Mr Giummarra submits that Mr Peacock's email "made it plain" that he was unwilling to spend money on legal fees for fear that the contracts may fall over for want of finance. He contends that the Peacocks explained they would make the changes, rather than asking their solicitor to do so. Further, he claims that it was perfectly reasonable for him to assume that the clients understood the clause, specifically as they were unwilling to pay him to given them substantial advice on the amendments, or even to undertake the drafting of the amendments.
3. When the Peacocks had not received a response from Mr Giummarra by 23 April 2021, Mr Peacock followed up Mr Giummarra by email, asking for "just a simple yes to my answers and all is good".
4. Mr Giummarra argues that the Peacocks did not even ask him to review the contracts once they were amended by Mr Hanley, further demonstrating to him that they were relying on him for very little, if anything, more than the original drafting and the subsequent conveyance of the farm. Mr Giummarra contends that after the contracts were amended by Mr Hanley, they were not returned to him for review.
5. Mr Giummarra submits that further negotiations and redrafting was undertaken without his knowledge or involvement. The contracts were executed on 1 May 2021 without his knowledge. Mr Giummarra notes that the particulars, the provision for the deposits was altered so that $2,500.00 was to be paid into his trust account. Mr Giummarra contends that, Mr Hanley did not explain this to the Peacocks and that he was not told of the amendment or to expect that money to arrive.
6. Mr Giummarra submits that, by 18 May 2021, the Peacocks had not told him that the Cimen contracts had been signed. They expected Mr Hanley to do so. Mr Giummarra contends that instead of seeking advice from him, the Peacocks sought advice from Mr Hanley.
7. Mr Giummarra argues that Mr Cimen emailed him directly on 18 May 2021 to seek an extension of the subject to finance clause, informing him that "the process is still being worked on". He says, that on receiving that email, Mr Giummarra directly asked the Peacocks whether a contract had actually been signed and exchanged and asked for a copy. Mr Giummarra submits that he sought instructions on the request for extension of time.
8. Mr Giummarra submits that the next afternoon, the Peacocks responded and explained to him that the Cimen contracts had been exchanged, dated 1 May 2021, with a 21-day finance clause, which expired on 22 May 2021. He says that the Peacocks explained to him that Mr Hanley was dealing with Mr Cimen and "we've spoken to [Mr Hanley] this morning and told him, we want something in writing from the bank ... if we don't get it by Friday, we will put the farm back on the market". Mr Giummarra notes that the Peacocks did not send him a copy of the contracts because they were having difficulty sending attachments and expected someone else would forward it. Mr Giummarra submits that the Peacocks did not ask him for advice on the effect of the extension sought by Mr Cimen.
9. On 20 May 2021, when Mr Cimen's lawyers requested a further extension of time for the subject to finance clause to run until 4 June 2021, Mr Giummarra says that Mr Hanley sent the request to the Peacocks, who re-sent it to Mr Giummarra, asking for advice on whether deleting SC 13 would have financial, legal or tax implications. It is noted that that email also stated "[t]he contract of sale has finished as of last Saturday, 22nd May".
10. Mr Giummarra says that he called Mr Peacock on 24 May 2021 to advise on the question asked of him and discuss the extension of time. He says that he clearly explained to the Peacocks that they could not sell the farm until the contract was "finished" and Mr Giummarra submits that he received instructions to extend the subject to finance clause until 4 June 2021.
11. Mr Giummarra contends that the advice given in that phone call was correct and complete and discharged him of his obligations.m Further, he submits that, although perhaps not understanding at the time, with the benefit of hindsight, Mr Peacock's self-deprecation and concession under cross-examination showed how obvious it was that the contracts remained on foot after the 24 May 2021 conversation. Mr Giummarra argues that so much was plain because Mr Peacock agreed to the extension of time and Mr Giummarra said that the Peacocks could not sell to another party until the contract was "finished".
12. Mr Giummarra relies on Mr Peacocks' evidence at trial that he thought it was "obvious" that he could not sell his farm to two separate people and believed that if Mr Cimen had come up with the finance by 4 June 2021, he could compel the Peacocks to sell the farm to him. Mr Giummarra contends that in these circumstances, Mr Peacock did not ask him whether or when the contract would be "finished".
13. Mr Giummarra submits that he relies on his unchallenged evidence that at the end of the 24 May 2021 conversation, he thought Mr Peacock understood the contracts had not "finished".
14. Mr Giummarra contends that the Peacocks did not tell him that they had another buyer available, and they wanted to terminate the Cimen contracts or that Mr Cimen had not paid the deposits. Mr Giummarra argues that, in accordance with his advice, Mr Peacock instructed Inline Real Estate not to sell to another buyer until after 4 June 2021. He says, he did not know that the Peacocks signed a new s32 on 26 May 2021 which they provided to JJJP.
15. Mr Giummarra submits that, on 2 June 2021, Mr Cimen's lawyers requested a further extension of time, and the Peacocks gave clear instructions to reject that request. He says that at midday, Mr Peacock advised Mr Giummarra that there may be offers coming in shortly and he would be in touch if anything eventuated. Mr Giummarra contends that the Peacocks did not seek advice and he gave none. He says there was no discussion about whether the Cimen contracts remained on foot, and without further recourse to him, the Peacocks sold the farm to JJJP at 3pm that day.
16. Mr Giummarra submits that he was excluded from a large part of the negotiations with Mr Cimen and was not informed of the JJJP sale until it had occurred. He says that on the very limited range of matters that he was instructed to perform, he did so in accordance with his duty to exercise reasonable care and skill. Mr Giummarra concludes that:

(a) he told the Peacocks they could not re-sell the farm until the Cimen contracts had "finished" which was a clear indication that they remained on foot;

(b) he was not in a position to advise about termination rights as neither Mr Hanley nor the Peacocks had told him that the deposits had not been paid, or they wanted to terminate or that they wanted to sell to another purchaser;

(c) the Peacocks had not sought advice on the subject to finance clause; and

(d) there was no question about Mr Cimen terminating on the basis of the subject to finance clause, and so there was no obligation to explain or advise about it.

1. In my view, Mr Giummarra breached his duty of care owed to the Peacocks in having failed to advise them on the effect of the finance approval condition in the Cimen contracts. Specifically, I find that Mr Giummarra failed to advise on the following matters:

(a) that the finance clause was not for the benefit of the Peacocks, but rather, was for the benefit of Mr Cimen;

(b) that the finance clause gave Mr Cimen alone the right to terminate the contracts by written notice, if he did not obtain finance approval by the specified date;

(c) that Mr Cimen could only serve such a notice if he was not in default under the Cimen contracts;

(d) if Mr Cimen did not give such notice, then the Cimen contracts would become unconditional and both parties would then be bound to perform their obligations under the contracts; and

(e) in those circumstances, the Peacocks were not at liberty to sell the farm or business to any other purchaser unless and until the Cimen contracts had ended in that way.

1. I rely on the following matters in support of my conclusion.
2. On reading the 19 May 2021 email from the Peacocks informing Mr Giummarra that they were having difficulties with Mr Cimen in accommodating his requests for time to obtain finance, it ought to have been clear to Mr Giummarra that the Peacocks had a fundamentally flawed understanding of how the finance approval condition worked. The email demonstrates that the Peacocks regarded themselves as free to put the farm "back on the market" and if Mr Cimen came up with the finance, then they would "revisit it then". It ought to have been apparent to Mr Giummarra that the Peacocks thought they were discharged from the Cimen contracts if Mr Cimen did not obtain finance in time, and they were at liberty to sell or not sell to him later if he had such finance in place.
3. Regarding the 24 May 2021 email, in my view, the Peacocks' misapprehension was confirmed explicitly. The email stated that "[t]he contract of sale has finished as of last Saturday, 22nd of May". This statement is clearly inconsistent with the true legal effect of the finance condition. The Peacocks were seeking Mr Giummarra's advice in the 24 May 2021 email and he failed to give the advice that his clients needed.
4. I accept the Peacocks' position that it is in this context that the oral advice given by Mr Giummarra on 24 May 2021 was inadequate to dispel the Peacock's misunderstanding of their contractual rights if Mr Cimen failed to obtain finance within the specified time. It was apparent in light of the 24 May 2021 email that the Peacocks thought the Cimen contracts were already "finished" unless they agreed to extend it. In my view, the Peacocks needed advice that the opposite was in fact the case. Mr Giummarra failed to give that advice.
5. On 4 June 2021, after Mr Cimen was requesting a further extension of the finance approval date to 18 June 2021, Mr Giummarra was copied into the 5 June 2021 email to Mr Hanley with instructions that the Peacocks would not agree to extend the approval date any further and that they intended to put the farm back on the market. It was clear from the content of the 5 June 2021 email which relevantly provided that if Mr Cimen obtained finance, he could "keep going with it" but there was "definitely no guarantee that if and when his finance comes through the farm will still be available for those conditions". Mr Giummarra again failed to give advice to the Peacocks that the Cimen contracts were now unconditional unless the approval date was extended again, and the Peacocks had no discretion to refuse to complete the contracts.

Eleventh issue for trial: If yes to 10, did Mr Giummarra's breach of duty cause the Peacocks loss by reason of the Peacocks entering into the JJJP contract on 5 June 2021?

1. The Peacocks contend that their claim is for damages for economic loss.
2. The Peacocks say that this is not a case where complex questions of causation arise requiring expert evidence. The two requirements the Peacocks are required to prove under s 55(1) of the Wrongs Act 1958 (Vic) are:

(a) that the negligence was a necessary condition of the occurrence of the harm; and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused.

1. The Peacocks submit the requirement of factual causation in paragraph (a) is straightforward in this case.
2. The Peacocks contend they have suffered loss as a consequence of being bound (if the Court deems this to be the case) to two legally enforceable contracts, a situation that they would not be in if they had been given full non-misleading advice as they required. If they had been given this advice, they would not have entered into the JJJP contracts on 5 June 2023 or, if they had done so, they would have done so conditionally, subject to the Cimen contracts being terminated.
3. The Peacocks say the scope of Mr Giummarra's liability is also straightforward, if the Court accepts the Peacocks' submissions above that his duty of care extended to giving the full non-misleading advice that would have warned them of the risk of ending up with two binding enforceable contracts on foot.

1. If the Peacocks had been given the advice on the true operation of the finance clause by Mr Giummarra, then I find that they would not have signed the second contracts with JJJP. I infer this from the terms of the conversation that Mr Peacock had with Inline Real Estate, the selling agent for the JJJP contracts on 5 June 2021.
2. If I am wrong in my analysis in the primary proceeding, and the Cimen contracts are enforceable, then the Peacocks' losses caused by Mr Giummarra's failure to advise, flow from the Peacocks' having two enforceable contracts which they are liable to perform, one or both of which may result in orders for damages being made against them.
3. I find that in those circumstances Mr Giummarra would be liable to indemnify the Peacocks for any damages awarded against them in favour of either purchaser by reason of there being two contracts as damages in lieu or in addition to specific performance.

Twelfth issue for trial: If yes to 11, what is the quantum of that loss?

1. The loss the Peacocks are seeking to recover by way of damages over and above costs orders in the proceeding indemnifying them for costs awarded to Mr Cimen and/or JJJP against the Peacocks:

(a) amounts that the Peacocks may be ordered to pay Mr Cimen or JJJP as damages in this proceeding in lieu of or in addition to specific performance; and

(b) legal costs incurred by the Peacocks in the sale to Mr Cimen (if JJJP's contract is specifically enforced and Mr Cimen is awarded damages), on the basis that the Peacocks incurred two sets of costs in respect of two sales being on foot at the that they obtain the benefit of the costs in respect of that sale, they will have obtained no benefit from having incurred the cost in respect of the Cimen sale.

1. Mr Giummarra has not invoiced the Peacocks for any of his costs in acting for them in the sales. The latter claim is, therefore, limited to costs incurred from September 2021 onwards, after the Peacocks engaged NWF Lawyers. Their costs in respect of the Cimen sale are quantified in that firm's redacted invoice no 22468.50.

1. If the Cimen contracts remain on foot (which is not the Court's anterior finding) but the JJJP contract nonetheless has priority over the Cimen contract, then the Peacocks' losses will be any damages awarded to Cimen and any deposit money and interest to which Cimen is held to be entitled by reason of the Peacocks being unable to complete the Cimen contract and the Peacocks' costs thrown away on the lost sale.
2. The formulation of those losses are as follows:

(a) The amount of $208,690.00 comprising:

(i) the difference between the current value of the farm as a going concern in the sum of $1,850,000.00 and the sale price under the Cimen contracts in the sum of $1,750,000.00;

(ii) the amount of $82,500.000, being the deposit money; and

(iii) the Peacock's conveyancing fees thrown away in the sum of $26,190.00 (supported by NWF Lawyers invoice no 22468) on the basis that they will have obtained no benefit from incurring these fees in respect of the Cimen contracts.

1. Finally, the Court would ordinarily also award to the Peacocks' the net loss from costs thrown away on the lost sale in the sum of $10,685.46, comprising $58,585.99 interest on a loan taken out to assist with the purchase of a replacement property from 25 October 2021 and insurance in the sum of $3,779.47 offset against the rental income received of $51,680.00 because the property was to be their primary place of residence and not an investment property. However, the evidence relied on by the Peacocks included two derivative documents which did not disclose the source documents or the author of the calculations. In those circumstances, the amounts have not been sufficiently proven to the requisite standard.
2. If the Cimen contracts remain on foot (which is not the Court's anterior finding) and has priority over the JJJP contracts, then the Peacocks' losses will be any damages awarded to JJJP and any deposit money and interest to which JJJP is held to be entitled by reason of the Peacocks being unable to complete the JJJP contract. As set out above, that amount is the sum of $220,000.00 comprising of:

(a) $50,000, being the difference in value between what the Peacocks and JJJP's valuers ascribed to the farm;

(b) $90,000.00 being the combined value of the deposits, which is made of $75,000.00 paid under the JJJP Land Contract and $15,000 paid under the JJJP Business Contract; and

(c) $80,000.00 being the value attributed by the Peacocks to the plant and equipment sold under the JJJP Business Contract.

1. For the forgoing reasons, I find that there is judgment for JJJP against the Peacocks and Mr Cimen's counterclaim and the Peacocks' third-party proceeding are dismissed.
2. I invite the parties to prepare draft orders to give effect to these reasons. Any further issue as to costs will be determined on the papers.

I certify that these 115 pages are a true copy of the judgment of her Honour Judge Burchell delivered on 17 April 2024.

Kathie Pollock Real Estate Pty Ltd (ACN 083 194 736) t/a Poultry Farms Australia

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[2] [1993] VicRp 5; [1993] 1 VR 90 ("Fishman").

[3] J&H Just (Holdings) Pty Ltd v Bank of NSW [1971] HCA 57; (1971) 125 CLR 546.

[4] [1990] VicRp 14; [1990] VR 146 ("Platt Nominees").

[5] [2003] VSC 260 at [27] ("Mimi").

[6] [1990] VicRp 14; (1990) VR 146.

[8] Wright v Inserti Pty Ltd (2022) VSC 1 at [91].

[9] (1983) 154 CLR 326 ("Heid").

[10] Wright v Insert Pty Ltd [2022] VSC 1 at [91] citing Heid.

[11] J&H Just (Holdings) v Bank of NSW [1971] HCA 57; (1971) 125 CLR 546.

[13] Platt Nominees at [151], [159].

[17] [2011] NSWSC 311 at [13] per Pembroke J.

[20] [1978] HCA 50; (1978) 141 CLR 378 ("Brien").

[22] [1985] HCA 14; (1985) 157 CLR 17.

[23] [2007] HCA 61; (2007) 233 CLR 115 at [44] ("Koompahtoo").

[24] (1938) 38 SR (NSW) 632 at [642] ("Tramways").

[25] [2005] NSWSC 391 at [57] - [62].

[26] [2005] VSC 229 at [117].

[27] [1916] 2 Ch 187.

[28] [2016] NSWSC 1504.

[32] Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at [378] ("Shepherd").

[33] (2023) VSCA 30 at [78] ("Castaway").

[37] (1938) 38 SR (NSW) 632 at [641-2].

[40] [2003] HCA 58; [2003] 217 CLR 367.

[50] [1954] HCA 42; (1954) 90 CLR 409 ("Holland").

[52] [1982] VicRp 60; [1982] VR 575, at [585-589] ("McWaters").

[54] [2004] NSWCA 472 ("Ryder").

[57] Applied by Judge McNamara in Waysone Pty Ltd v M Property Group (2015) VCC 1422 at [93], citing Holland at [420].

[60] [1964] HCA 20; (1964) 111 CLR 41 at [55] ("Goonan").

[61] [1974] HCA 40; (1974) 131 CLR 634 at [642] ("Sargent").

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[65] (1931) 42 CLR 245 at [257] ("Bruce").

[68] Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298 at [304-5].

[69] (1992) 115 ALR 207 ("Benny").

[70] (1994) 50 FCR 378 at [385 - 86] ("International Trucks").

[71] Coastal Estates Pty Ltd v Melevende [1965] VicRp 60; (1965) VR 433 at [435].

[74] (1976) 2 NSWLR 264 at [273].

[75] Immer (No 145) Pty Ltd v Uniting Church of Australia Property Trust (NSW) [1993] HCA 27; 182 CLR 26.

[76] Barooga Projects (Investments) Pty Ltd v Duncan [2004] QCA 149.

[78] Poort Development Underwriting (Victoria) Pty Ltd (No 2) [1977] VicRp 52; [1977[ VR 454 at [461].

[79] [1974] HCA 40; (1974) 131 CLR 634.

[81] Allianz Australia Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 406 ALR 632 at [51].

[85] [1953] HCA 31; (1953) 89 CLR 327 at [348].

[90] King v Poggioli (1923) 32 CLR 22 at [249].

[92] (2002) NSWSC 1060 at [159] ("Black Uhlans").

[93] Black Uhlans at [164] - [169].

[94] Kettle and Gas Appliances Ltd v Anthony Hordern and Sons Ltd [1934] NSWStRp 51; (1934) 35 SR (NSW) 108 at [130].

[95] [2000] TASSC 160.

[96] [2012] VSCA 262; (2012) 38 VR 509 at [100].

[97] (1979) Ch 384 at [409].

[98] [2021] NSWSC 1370 at [311] ("About Life").

[99] (2019) WASC 306 at [374 - 379].

[100] LexisNexis, Solicitors Manual, Chapter 4 Duties of performance owed by a lawyer, 'B. Scope of the Duty of Care of Tort' [4065.20], How is the scope of the duty impacted by the nature of the client?'.

[101] (2009) NSWCA 8 at [76] ("David").

[103] AVWest Aircraft at pp 374 - 399, About Life at [308] and David at [76].

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[107] Scottsdale Homes Pty Ltd v Gemkip Pty Ltd [2008] QSC 326 at [96] - [104].

[110] [2008] QSC 326.

[111] (1944) 1 All ER 552 ("Yager").