Lioncrest Capital Holdings Pty Ltd v O'Shaughnessy [2022] NSWSC 1410 | Case summary

Supreme Court of NSW|2022-10-06|Before: Darke J, Knoll AM, Mr P

) Joshua Robert Palmer (Ninth Defendant) Mark Andrew Cottom (Tenth Defendant) Brian Astley Walton (Eleventh Defendant) Representation: Counsel: Mr D D Knoll AM with Ms N Maddocks (Plaintiff) Mr P T Russell (First and Second Defendants) Mr I Griscti (Third to Eleventh Defendants)

Introduction

These proceedings concern a Deed of Call Option ("Deed") dated 22 January 2019 that was entered into in respect of a property situated at 8 Torrens Street, Blakehurst. The Deed was entered into by the first and second defendants (Mr and Mrs O'Shaughnessy) as Grantor, and Touma Property Developments Pty Ltd ("Touma") as Grantee. The Deed was subsequently amended in various respects by written agreements executed by the parties on 20 March 2019, 23 May 2019, 24 February 2020 and 6 April 2020. On 17 August 2021, Mr and Mrs O'Shaughnessy, Touma and the plaintiff ("Lioncrest") entered into a Deed of Novation of Call Option pursuant to which Lioncrest was effectively substituted for Touma as the Grantee under the Deed.
A dispute has arisen between Lioncrest and Mr and Mrs O'Shaughnessy in relation to the purported exercise by Lioncrest of the Call Option on 24 November 2021. Mr and Mrs O'Shaughnessy contend that the purported exercise was ineffective because, contrary to the requirements of cl 2.6 of the Deed: 1. it did not occur during the Call Option Period (cl 2.6(a)); and 2. the Grantee did not deliver to the Grantor (at the Grantor's Solicitors' address) a bank cheque payable to the depositholder under the Contract for the amount of the deposit under the Contract less the Call Option Fee (cl 2.6(b)(iv)).
As to the former, Lioncrest contends that the Call Option Period had not expired when it purported to exercise the option on 24 November 2021. As to the latter, Lioncrest accepts that it did not exercise the Call Option in accordance with the terms of the Deed insofar as it required the delivery of a bank cheque for the deposit (cf Payne v Timilty [2021] NSWSC 986 at [38]). Lioncrest instead effected two electronic transfers of funds (totalling $238,492.96) into the trust account of the Grantor's Solicitors, Pikes & Verekers Lawyers ("PVL"). However, Lioncrest contends that, as a result of certain communications on 24 November 2021 between its solicitor (Mr Laliotis) and a solicitor employed by PVL (Mr Griffiths), Mr and Mrs O'Shaughnessy are estopped from asserting that as the transfer of funds for the deposit was not in accordance with the Deed the purported exercise of the option was ineffective.
The claimed estoppel is in the nature of an equitable estoppel by representation. It might also be described as a promissory estoppel. It is alleged by Lioncrest that Mr Griffiths, by his words and conduct in his dealings with Mr Laliotis on 24 November 2021, represented that Mr and Mrs O'Shaughnessy had agreed to the payment of the funds by electronic funds transfer. Lioncrest alleges that it acted in reasonable reliance upon the representation in effecting the transfer of funds into the PVL trust account. Lioncrest further alleges that Mr Griffiths had authority from Mr and Mrs O'Shaughnessy to make the representation, and that it would be unconscionable for Mr and Mrs O'Shaughnessy to seek to resile from the representation. It is further alleged by Lioncrest that it would suffer material detriment were Mr and Mrs O'Shaughnessy allowed to so resile.
Lioncrest seeks declaratory relief to the effect that it validly exercised the Call Option, and that a binding and enforceable contract for sale of the property exists between it as purchaser and Mr and Mrs O'Shaughnessy as vendors. Lioncrest also seeks orders in the nature of specific performance of the alleged contract for sale.
Lioncrest also brings a claim for breach of warranty of authority against PVL, the partners of which are the third to eleventh defendants. This claim is made in the alternative if Mr and Mrs O'Shaughnessy are held not to be bound by the representation said to have been made by Mr Griffiths. In that event, it is alleged that Mr Griffiths, by his conduct, represented that he (and hence PVL) had authority from Mr and Mrs O'Shaughnessy to make the representation that they had agreed to the payment of the funds for the deposit by electronic funds transfer. It is alleged that PVL are deemed to have warranted that the representation was made with authority, and are liable for any loss caused to Lioncrest by reason of a breach of the warranty.

The Deed of Call Option

The Deed is dated 22 January 2019. It was entered into by Mr and Mrs O'Shaughnessy as Grantor and Touma as Grantee in respect of the 8 Torrens Street property. By cl 2.2 of the Deed, the Grantor, in consideration of the Grantee paying a Call Option Fee of $102,211.26, granted to the Grantee an option to purchase the property for a price of $3,407,042 on the terms of an attached Contract, subject to the terms of the Deed.
Call Option is defined in the Deed to mean the option granted by the Grantor to the Grantee "under clause 2.1". That is an obvious error. The definition should be read as though it refers to the option granted by the Grantor to the Grantee "under clause 2.2".
There is no dispute that the Call Option Fee was duly paid, in instalments, as required by cl 2.3 of the Deed.
The exercise of the Call Option is governed by cl 2.6, which provides: The Call Option may be exercised only: (a) during the Call Option Period; and (b) by the Grantee delivering to the Grantor, at the Grantor's Solicitors' address: (i) the Notice of Exercise of Call Option, executed by the Grantee and completed by inserting the date of this document; (ii) the Contract with all details completed and executed by the Grantee; (iii) a duplicate of the Contract with all details completed, for execution by the Grantor; and (iv) a bank cheque payable to the depositholder under the Contract for the amount of the deposit under the Contract, less the Call Option Fee. (v) If the Grantee nominates a Nominee, by providing the Grantor with a Notice of Nominee recording the proper details of the Nominee.
Clause 1.1 of the Deed contains various definitions that apply unless the context otherwise requires. Call Option Period is defined in cl 1.1 to mean: … the period beginning the day after the expiry of the Due Diligence Period and ending eighteen (18) months thereafter. By the amending agreement executed on 6 April 2020, that definition was changed to read: … the period beginning the day after the expiry of the Due Diligence Period and ending twenty-four (24) months thereafter.
Due Diligence Period is defined in cl 1.1 to mean: … a period of 42 Business Days commencing on 22 January 2019. By the amending agreement executed on 20 March 2019, that definition was changed to read: … a period of 84 business days commencing on 22 January 2019.
Business Day is defined in cl 1.1 to mean: … any day other than a Saturday, Sunday, or a bank holiday or a public holiday in New South Wales and a reference to a date which does not fall on a Business Day is to be construed as a reference to the immediately preceding Business Day.
Reference should also be made to cl 1.2(b) of the Deed, which provides: 1.2 In the interpretation and application of this document, unless the context otherwise requires: … (b) in calculating any period of time commencing from a particular day, the period commences on the following day and the following day counts as part of that period;
It can be seen from the above that the Call Option Period is defined by reference to the Due Diligence Period. The Call Option Period is the period that begins the day after the expiry of the Due Diligence Period and ends 24 months thereafter.
However, the Call Option Period is subject to extension pursuant to cl 2.4 of the Deed, which provides: In consideration of the Grantee paying the Extension of Time Fee to the Grantor, the Grantor grants to the Grantee an Extension of Time of the Call Option Period to purchase the Property for the Price and on the terms of the Contract, subject to this document. The Grantee may only exercise the Extension of Time during the Call Option Period by delivering a written notice of exercise of the Extension of Time together with the Extension of Time Fee. Extension of Time Fee is defined in cl 1.1 to mean $34,070.42. Touma paid the Extension of Time Fee on about 21 May 2021. Extension of Time is defined in cl 1.1 to mean: … a further period of six (6) months commencing on the next date after the expiry of the Call Option Period.
Accordingly, the period during which the Call Option may be exercised is ascertained by calculating: 1. the Due Diligence Period of 84 business days commencing on 22 January 2019; 2. the Call Option Period that begins the day after the expiry of the Due Diligence Period and ends 24 months thereafter; and 3. if the Extension of Time is exercised, the further period of six months commencing on the next date after the expiry of the Call Option Period.
By cl 2.6 of the Deed, the Call Option may only be exercised during that period as calculated, and by the Grantee delivering to the Grantor at the address of the Grantor's Solicitors (PVL) the documents and things specified in sub-paragraphs (i) to (iv) and, if applicable, sub-paragraph (v), of cl 2.6(b).

The time within which the Call Option could be exercised

It is convenient to commence by considering the question whether the purported exercise of the Call Option by Lioncrest on 24 November 2021 occurred during the Call Option Period for the purposes of cl 2.6(a) of the Deed. As it appears to be common ground that the Call Option Period was extended pursuant to cl 2.4, the question may be posed as whether the purported exercise occurred during the Call Option Period as so extended.
The starting point in calculating that period is the Due Diligence Period. That period was originally defined as a period of 42 Business Days commencing on 22 January 2019. However, before the period expired, the definition of Due Diligence Period was changed to a period of 84 business days commencing on 22 January 2019. No party suggested that the expression "business days" was intended to encapsulate a meaning different to that of the expression "Business Days". I will proceed on that basis.
The parties are at odds as to when the Due Diligence Period commenced and ended. The plaintiff says that the period commenced on 23 January 2019 and ended on 24 May 2019, whereas the defendants say that the period commenced on 22 January 2019 and ended on 23 May 2019.
The plaintiff submitted that reasonable businesspersons would have understood the reference to "a period of 84 business days commencing on 22 January 2019" as a reference to 84 whole days. It was further submitted that, in circumstances where the Deed was exchanged during the afternoon of 22 January 2019, reasonable businesspersons would not have understood the Due Diligence Period to commence prior to entry into the Deed itself. The plaintiff contended that a commencement date of 23 January 2019 could also be supported by cl 1.2(b) of the Deed. In that regard, the plaintiff submitted that, in calculating the period of 84 business days commencing on 22 January 2019, cl 1.2(b) of the Deed operates so that, for the purposes of calculation, the period is taken to commence on 23 January 2019. It may be recalled that cl 1.2(b) provides that in calculating any period of time commencing from a particular day, the period commences on the following day and the following day counts as part of that period. If the plaintiff is correct that the Due Diligence Period commenced on 23 January 2019, then it ended on 24 May 2019.
The defendants submit that, in calculating the period of 84 business days commencing on 22 January 2019, the period is taken to commence on 22 January 2019, even if that is also the day on which the Deed was entered into. The defendants deny that cl 1.2(b) operates to make the period commence on 23 January 2019. If the defendants are correct that the Due Diligence Period commenced on 22 January 2019, then it ended on 23 May 2019.
The questions of construction that so arise are to be determined in accordance with the well established principles that apply to the construction of written commercial agreements, as stated in cases such as Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46]-[52]; and Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 at [16]. In accordance with those principles, the meaning of the terms of the Deed is to be determined by what a reasonable businessperson in the position of the parties would have understood the terms of the Deed to mean.
In my opinion, a reasonable businessperson in the position of the parties would have understood the Due Diligence Period to commence on 22 January 2019, even though the Deed was not entered into until part of the way through that day. Further, it is my view that a reasonable businessperson would not have understood cl 1.2(b) to operate such that the Due Diligence Period would commence on 23 January 2019. Rather, a reasonable businessperson in the position of the parties would have understood that the Due Diligence Period commenced on 22 January 2019. That is what the words of the definition plainly say, and I do not think that the context requires a different meaning to be given to the expression. The period is stated to commence on that date. Clause 1.2(b) is concerned with periods of time that commence from a particular day, and provides that any such period is taken to commence on the following day. However, the definition of Due Diligence Period does not speak of a period of time that commences from a particular day. Accordingly, cl 1.2(b) does not appear to be engaged (cf Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277 at 285-6 per Jordan CJ, with whom Street J and Maxwell AJ agreed).
The plaintiff's argument seems to assume that "from" and "on" can be treated in this context as synonymous or interchangeable. The difficulty with that is that the very terms of cl 1.2(b) seem to recognise a difference. Moreover, cl 1.2(b) will not operate if the context otherwise requires. In my view, the specific reference in the definition of Due Diligence Period to the period commencing on 22 January 2019 is a contextual statement that is inconsistent with cl 1.2(b) operating such that the period is instead taken to commence on 23 January 2019.
The parties, who entered into the Deed during the course of 22 January 2019, nonetheless chose to define the Due Diligence Period as a period that commenced on that date. The general position is that the law takes no account of fractions of a day (see Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 446 per Gibbs J - citing Prowse v McIntyre (1961) 111 CLR 264 at 270 per Dixon CJ and 280 per Windeyer J). That being so, and noting the substantial length of the period, I think that the parties should be taken to have intended the defined period to commence at the beginning of 22 January 2019, even though the Deed did not become operative until part of the way through that day. Had it been the intention of the parties to exclude that day from the period, it would have been a simple matter to instead refer to 23 January 2019. (It would also have been open to the parties to achieve that result by using the expression "commencing from 22 January 2019", thereby enlivening cl 1.2(b).)
Proceeding on the basis that, upon the true construction of the Deed (as amended), the Due Diligence Period commenced at the beginning of 22 January 2019, the period ended on 23 May 2019, as contended by the defendants.
The Call Option Period was originally defined as the period beginning the day after the expiry of the Due Diligence Period and ending 18 months thereafter. However, before the expiry of the period as originally defined, the definition of Call Option Period was changed to the period beginning the day after the expiry of the Due Diligence Period and ending 24 months thereafter. If, as I have found, the Due Diligence Period ended (or expired) on 23 May 2019, it is clear that the Call Option Period commenced at the beginning of 24 May 2019 and ended 24 months thereafter.
The Deed does not contain any definition of "month". However, s 181(1)(d) of the Conveyancing Act 1919 (NSW) operates so that the expression "month" as found in the Deed is (unless the contrary intention appears) taken to mean "calendar month".
By s 21(1) of the Interpretation Act 1987 (NSW), "calendar month" as found within the Conveyancing Act means: … a period commencing at the beginning of a day of one of the 12 named months and ending - (a) immediately before the beginning of the corresponding day of the next named month, or (b) if there is no such corresponding day, at the end of the next named month. Section 21(1) of the Interpretation Act further defines "named month" to mean "January, February, … or December."
The plaintiff submitted that s 21(1) of the Interpretation Act did not apply to the Deed. In support of that proposition, reference was made to the decision of White J (as his Honour then was) in McGregor v Henry [2006] NSWSC 368 at [37]-[41]. His Honour was there concerned with the question whether s 36(2) of the Interpretation Act applied to a lease. The question depended upon whether the lease was an "instrument made under an Act" to which the Interpretation Act applied. White J held (at [41]) that it was not. However, the question here is not whether the Deed is an instrument to which the Interpretation Act has direct application. Rather, the Interpretation Act supplies the meaning of "calendar month" as found within s 181(1)(d) of the Conveyancing Act. It is that provision which applies to the Deed, insofar as it uses the expression "month". The plaintiff did not dispute that s 181(1)(d) applied to the Deed in that regard. The statutory definitions contained in the Interpretation Act only apply in respect of the Deed indirectly, via that section.
Applying those statutory definitions to the definition of Call Option Period, and ignoring for the moment the Extension of Time, the period commences at the beginning of 24 May 2019 and ends on 23 May 2021 (immediately before the beginning of 24 May 2021). That is 24 calendar months later than the beginning of the Call Option Period. As 23 May 2021 was a Sunday, it is arguable that the definition of Business Day would further operate to make the Call Option Period end on Friday 21 May 2021. However, that argument will be put to one side for the moment.
It is then necessary to calculate the Extension of Time. That is defined to mean a further period of 6 months commencing on the next date after the expiry of the Call Option Period. If the Call Option Period ended (or expired) on 23 May 2021, it is clear that the further period of 6 months commenced at the beginning of 24 May 2021. Applying the statutory definitions of "month" and "calendar month" (and again ignoring the possible further operation of the definition of Business Day), the further period of 6 months ended on 23 November 2021 (immediately before the beginning of 24 November 2021). That is 6 calendar months later than the beginning of the Extension of Time period. That is to say, the Call Option Period, as extended pursuant to cl 2.4 of the Deed, ended on 23 November 2021. If that is correct, then the purported exercise of the Call Option by Lioncrest on 24 November 2021 did not occur during the Call Option Period for the purposes of cl 2.6(a) of the Deed.
However, the plaintiff submitted that the correct approach in relation to calculating the Call Option Period and the Extension of Time was to apply the so-called corresponding date rule as explained by the House of Lords in Dodds v Walker [1981] 1 WLR 1027. At 1029, Lord Diplock stated: My Lords, reference to a "month" in a statute is to be understood as a calendar month. The Interpretation Act 1889 says so. It is also clear under a rule that has been consistently applied by the courts since Lester v. Garland (1808) 15 Ves.Jun. 248, that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.
Dodds v Walker (supra) has been followed and applied in numerous cases, including by Barrett J (as his Honour then was) in Re Weston Application; Employers Mutual Indemnity (Workers Compensation) Ltd v Omni Corporation Pty Ltd (2009) 255 ALR 362; [2009] NSWSC 264 at [11]-[14]. In that case, his Honour applied the corresponding date rule in order to identify the end of a period of three years after a certain date (the relation-back day). The plaintiff submitted that if the Call Option Period began on 24 May 2019, and if the corresponding date rule were applied to the Call Option Period and also to the Extension of Time, the Call Option Period, as extended, would end on 25 November 2021. It was submitted that, if the Call Option Period began on 25 May 2019, the Call Option Period as extended would end on 26 November 2021.
In the present case, the relevant periods (Call Option Period and Extension of Time) are not expressed to be periods of a specified number of months after a particular event. They are expressed to be periods of a specified number of months commencing on a particular day or dates.
The Call Option Period is a period that commences at a certain time and ends 24 months thereafter. That seems to me to be a period of 24 months calculated from the beginning of the period. So, if the Call Option Period commences at the beginning of 24 May 2019, it ends 24 months (meaning "calendar months") later. One calendar month from the beginning of 24 May 2019 is a period that ends immediately before the beginning of 24 June 2019 - that is, at the end of 23 June 2019. By parity of reasoning, 24 calendar months from the beginning of 24 May 2019 is the end of 23 May 2021 (i.e., immediately before the beginning of 24 May 2021).
The Extension of Time is a further period of 6 months commencing on the next date after the expiry of the Call Option Period. It seems to me that the period thus commences at the beginning of 24 May 2021. A period of 6 calendar months from the beginning of 24 May 2021 ends at the end of 23 November 2021 (i.e., immediately before the beginning of 24 November 2021).
Accordingly, I do not think it is correct to apply the corresponding date rule as though the Call Option Period is a period of 24 months after its date of commencement, or as though the Extension of Time is a period of 6 months after its date of commencement. The dates of commencement should not be excluded from the calculations of the periods. In my view, there is another reason for rejecting the plaintiff's contention that the calculations of the Call Option Period and the Extension of Time ought to the exclude the dates of commencement of those periods. Considered as a whole, the Deed contemplates three periods with three distinct purposes, namely: a period within which the Grantee could conduct due diligence regarding the purchase of the Grantor's land; a period within which the Grantee might reserve to itself the option to purchase that land; and, if required, an additional period of time within which to exercise the option. Those periods are, respectively, the Due Diligence Period, the Call Option Period, and the Extension of Time period. The language of the Deed (in particular as found within the relevant definitions) and the fact that each period has a purpose distinct, though sequential, from that which precedes it, suggests to me that the three periods were intended by the parties to be contiguous. On this reading of the Deed, it would be incongruous to interpose days that would break the continuity of these periods.
It follows that the Call Option Period, as extended pursuant to cl 2.4 of the Deed, expired at the end of 23 November 2021. That is to say, the Call Option Period for the purposes of cl 2.6(a) of the Deed expired at the end of 23 November 2021.
For completeness, I note that the first and second defendants submitted that the Call Option Period, as extended pursuant to cl 2.4 of the Deed, ended even earlier, on 19 November 2021. That submission rests upon the propositions: 1. that as the Call Option Period ended on Sunday 23 May 2021, the definition of Business Day operates so that the period would instead end on Friday 21 May 2021; and 2. that as the Extension of Time would thus end on Saturday 20 November 2021, the definition of Business Day operates so that the Extension of Time would instead end on Friday 19 November 2021.
That is an arguable construction, but I do not think it is correct. In my opinion, the ascertainment of the Call Option Period for the purposes of cl 2.6(a) of the Deed calls for a single calculation of the period, albeit that the calculation must be performed by reference to two or three contiguous components, namely, the Due Diligence Period, the Call Option Period and, if applicable, the Extension of Time. In my view, the definition of Business Day would only operate to treat a date as a reference to the immediately preceding Business Day if the single calculation ended on a date which does not fall on a Business Day. In that situation, the period would be shortened to the extent necessary to ensure that it ended on a Business Day. Here, the Call Option Period for the purposes of cl 2.6(a) of the Deed ended on 23 November 2021. That was a Business Day. There was no occasion to shorten the period in the manner contemplated by the definition of Business Day.
For the above reasons, it is my opinion that the purported exercise of the Call Option by Lioncrest on 24 November 2021 did not occur during the Call Option Period for the purposes of cl 2.6(a) of the Deed. It follows that the attempt to exercise the Call Option was ineffective. However, in case that conclusion is incorrect, such that it remained open to Lioncrest to exercise the option on 24 November 2021, or even 25 or 26 November 2021, I will proceed to deal with the estoppel claim made by the plaintiff.

Summary of salient evidence relevant to estoppel claim

It is accepted that the purported exercise of the Call Option on 24 November 2021 did not occur in accordance with the terms of the Deed insofar as the delivery of a bank cheque was required (see cl 2.6(b)(iv)). Lioncrest instead effected electronic transfers of funds into the PVL trust account. Lioncrest contends, however, that an estoppel by representation arises to preclude Mr and Mrs O'Shaughnessy from asserting that, as the transfer of funds for the deposit was not in accordance with the Deed, the purported exercise of the option was ineffective. The estoppel is said to arise from the communications between the parties' respective solicitors, Mr Laliotis and Mr Griffiths, on 24 November 2021. Those communications are the central focus of inquiry, but they need to be considered in their context as part of the broader dealings between the parties concerning the Deed.
I have already referred to a number of provisions of the Deed. Reference should also be made to cl 2.7 which provides: When the Grantee exercises the Call Option in accordance with clause 2.6, the Contract is made on that date and the Grantor is bound to sell and the Grantee is bound to buy the Property for the Price on the terms in the Contract. Contract is defined as the form of contract for the sale of land that is attached to the Deed. The front page of the Contract provides for a price of $3,407,042, with a deposit of $340,704.20. The deposit is to be paid in accordance with cl 2 of the Contract. That is, the deposit is to be paid to the depositholder (Laing & Simmons St George, Carss Park) as stakeholder.
Reference should also be made to cll 10.2 and 10.8 of the Deed, which provide: 10.2 This document may only be amended, supplemented, replaced or novated by another document signed by each of the parties, whether in one or more counterparts. … 10.8 This document contains the entire agreement between the parties about is subject matter and supersedes all prior discussions, representations, agreements and understandings between the parties in connection with the subject matter.
In the period leading up to the purported exercise of the Call Option, the parties had engaged in negotiations concerning amendments to the Deed. These negotiations were carried out by the parties themselves, and by real estate agents acting for the parties. Mr Laliotis and Mr Griffiths do not appear to have become involved until about the first week of November 2021.
On 4 November 2021, Mr Toufic (also known as Tom) Chidiac, the partner of the sole director of Lioncrest (Ms Rahe), sent an email to Mr Laliotis stating that the tenants (meaning the owners) of both 8 and 10 Torrens Street had agreed to extend their option agreements on certain terms. The email included the following: The terms are as follow: 6 month extension to the option agreement to be granted 7% increase on sale price 1% cash incentive upon signing extension 8 week settlement period Can we please adjust the current agreements to reflect the new dates. Currently the options expire on the 24th of November 2021. New expiration date will be 24th of May 2022. … Can we please move on this as quickly as possible. I do not want these people changing their minds at the eleventh hour.
On 7 November 2021, Mr Laliotis sent an email to Mr Griffiths in respect of the 8 Torrens Street property. The email included the following: We refer to the Deed of Novation of the Call Option Deed dated 17 August 2021 at which time our client was nominated as the New Grantee with your clients consent. We are instructed that our respective clients have now agreed to vary the terms of the Option Deed and the Contract for Sale in the following manner: … We await your earliest response after which time we will submit the Amendment to Call Option for review and execution by your client.
On 8 November 2021, Mrs O'Shaughnessy gave instructions to Mr Griffiths to "put a hold on any actions until you have heard back from me".
On 15 November 2021, Mr Laliotis sent another email to Mr Griffiths, in the following terms: We refer to our correspondence below and note that we are yet to receive a response to our clients request to extend the Option Term or vary the terms of the Contract. We note that Option Term is due to expire on 23rd November 2021 Should we not receive your response by 5pm Wednesday 17th November 2021 we shall assume that your client is not agreeable to the requested amendments set out in our correspondence below. We await your urgent response
Mrs O'Shaughnessy gave instructions to Mr Griffiths to the effect that the proposed extension of the option was not agreed.
On 19 November 2021, Mr Laliotis sent an email to Mr Griffiths in the following terms: We refer to previous correspondence and attach draft Amendment to Call Option Deed for approval and execution by your client. We are instructed that the parties have agreed to the variations contained in the amendment document. If your client is agreeable please arrange for execution of the attached by no later than 12.00 noon Wednesday 24th November 2021 Our client is required to pay the Initial Instalment of the Extension of Time Fee to your client and accordingly we request that you provide details of your clients bank account as soon as practicable. We await your urgent response in regard to your client's approval of the amendment document
Mr Laliotis deposed that he sent an email in similar terms to the solicitor for the owners of the 10 Torrens Street property.
It seems that Mr Laliotis and Mr Griffiths had a telephone conversation on 22 November 2021 in which Mr Griffiths referred to Mr Laliotis' emails of 7 and 19 November 2021, and said that his instructions did not "align" with Mr Laliotis' instructions.
There were at least two further telephone conversations between Mr Laliotis and Mr Griffiths on 23 November 2021, and Mr Griffiths left some voicemail messages on Mr Laliotis' telephone. Both Mr Laliotis and Mr Griffiths made file notes in respect of these communications. It is not necessary to refer here to the details of the communications. It is sufficient to note that no consensus was reached in respect of any amendments to the Deed.
The critical events, so far as the estoppel case is concerned, occurred on 24 November 2021. Those events are summarised in the paragraphs that follow.
Mr Laliotis deposed that at about 9:50am he had a telephone conversation with Mr Chidiac. Mr Chidiac also deposed that such a conversation occurred. According to their accounts, which differ in some respects: 1. there was discussion about what would be required in order to "exchange" on that day, including the obtaining and delivery of a bank cheque for the deposit; 2. Mr Chidiac questioned whether there was sufficient time for that, and raised the possibility of instead transferring the funds electronically into the solicitor's account; and 3. Mr Laliotis agreed to find out whether that would be acceptable.
There is also evidence that, shortly after that telephone conversation, Mr Laliotis spoke on the telephone to Ms Chantal Elias, Mr Chidiac's cousin. She had agreed to lend $35,000 to Mr Chidiac to be put towards the deposit. Mr Laliotis told Ms Elias that she would need to obtain a bank cheque, and that he would provide her with the details of "who to make it payable to".
Mr Laliotis' mobile telephone records indicate that he indeed made telephone calls to Mr Chidiac (at about 9:50am) and Ms Elias (at about 9:54am).
The records of the landline used by Mr Laliotis indicate that he telephoned Mr Griffiths on that line at about 10:03am. The duration of the call is recorded as 1 minute and 41 seconds. In his first affidavit (dated 17 February 2022), Mr Laliotis deposed that at about 10:05am he had a telephone conversation with Mr Griffiths to the following effect: Mr Laliotis: Stephen, your client not agreeing to the extension places my client in a very tight position time wise as they are endeavouring to exercise the option today in any case. Obviously, in order to facilitate this by the end of today, will you accept payment of the deposit into your firms trust account instead of by bank cheque to the agent? This way you can be sure that the deposit has been paid today. Mr Griffiths: I will get instructions. In his second affidavit (dated 17 May 2022), Mr Laliotis deposed: … Since swearing my previous affidavit, I have located my file note of that conversation. Having looked at my file note, I now recall also saying to Mr Griffiths in the conversation set out in paragraph 6 of my previous affidavit words to the effect: Mr Laliotis: I need to know this is OK because is not in accordance with the option terms - but we can do it today. Mr Griffiths: So your client still intends to proceed with this? Mr Laliotis: Yes, but we will have to move quickly.
The file note referred to above was not made at or around the time of the call. It seems that it was not made until the afternoon or the evening of 24 November 2021. However, the relevant portion of the note is in the following terms: T/A Stephen Griffiths advised him that despite his clients lack of co-operation - we intend to still exchange contract today Advised him my client is getting money from 2 separate sources and would prefer to pay deposit by EFT into his trust account If this is OK cause its not in accordance with option terms - we can do it today He said "I will get instructions" (which I thought was a tactic to drag the matter and waste time)
Mr Griffiths deposed: I do not recall a conversation with Mr Laliotis on the morning of 24 November 2021. There is no file note of any such conversation but I cannot say for certain that no conversation took place between us on that morning. If a conversation did take place, I believe it was simply Mr Laliotis returning my telephone call and message from the evening before. I can say, however, that at no time on the morning of 24 November 2021 did a telephone conversation take place between myself and Mr Laliotis in which the words set out in paragraph 6 of the First Laliotis Affidavit or words to that effect were said. Specifically, there was no conversation at any time on 24 November 2022 [sic] in which Mr Laliotis raised the possibility of a payment of the moneys due under the Option Deed being made into Pikes' trust account as an alternative to payment by bank cheque. … Consistent with my regular practice, if I had received a request from Mr Laliotis to alter the method of payment for the exercising of the option from bank cheque to electronic transfer into my firm's trust account, I would have sought immediate instructions from the O'Shaughnessys. Further, I am alleged to have said "I will get instructions". If I had said those words, in accordance with my regular practice I would have requested instructions. The reason why I did not request those instructions is because the conversation as described by Mr Laliotis did not occur. … I refer to paragraph 20 of the Second Laliotis Affidavit … Mr Laliotis says in that regard that he said to me, "I need to know this is OK because it is not in accordance with the option terms - but we can do it today". I deny that those words, or words to that effect, were said to me by Mr Laliotis at any time on 24 November 2021.
Mr Laliotis deposed that he telephoned Ms Elias again at about 10:06am to tell her that Mr Griffiths was seeking instructions. His mobile telephone records indicate that he did call Ms Elias at about that time. Ms Elias deposed that such a conversation occurred, in which Mr Laliotis said that the vendor's solicitor is going to get instructions as to whether the deposit can be electronically transferred into the solicitor's trust account. It seems that Mr Laliotis had another conversation with Ms Elias on the telephone at about noon.
Mr Chidiac deposed that at about 12:35pm he received a call from Mr Laliotis who told him that they had "not yet" agreed for the deposit to be paid into their trust account. Mr Laliotis' mobile telephone records indicate that he called Mr Chidiac at 12:37pm.
Mr Laliotis deposed that, not having heard from Mr Griffiths, he sent an email to him at 1:38pm. The email was headed "8 Torrens Street, Blakehurst - Exercise of Option". The email was in the following terms: In anticipation of an exercise of the Call Option occurring today please provide urgently provide [sic] trust account details for payment of the balance of the 10% deposit today. Once the deposit monies have been transferred to your trust account we shall provide a receipt of the EFT
Mr Griffiths responded by email sent at 2:00pm in the following terms: The requested details are; BSB-062XXX A/C-XXX3000 But please ring me to verify these numbers before proceeding.
Mr Laliotis deposed that when he received the email he was having a telephone conversation with Mr Chidiac. Mr Laliotis deposed that he informed Mr Chidiac that the trust account details had been provided, that he would soon provide the details to Mr Chidiac, and that he (Mr Chidiac) should go to the bank to arrange the transfer of funds. Mr Chidiac deposed to a conversation in similar terms. Mr Laliotis' mobile telephone records indicate that he was on a call to Mr Chidiac at about 2:00pm. Those records further indicate that he made a call to Ms Elias at 2:01pm. She deposed that at about that time, she received a call from Mr Laliotis, and that he told her that he had "just received confirmation that they will accept payment of the deposit in the vendor's solicitor's trust account". She further deposed that Mr Laliotis gave her the account details, and told her that he would call her again once he received verification of the those details.
At about 2:02pm, Mr Griffiths sent an email to Mrs O'Shaughnessy that attached the 1:38pm email from Mr Laliotis. Mr Griffiths' covering email was in the following terms: Please note the attached. I'll keep you advised.
Mr Laliotis deposed that at about 2:50pm he received a call from Mr Chidiac, who informed him that he was at the bank. Mr Laliotis deposed that he told Mr Chidiac that he (Mr Laliotis) would need to call the solicitor to verify the account details. Mr Chidiac deposed to a conversation in similar terms.
At 2:58pm, Mr Laliotis sent an email to Mr Chidiac which included the terms of Mr Griffiths' 2:00pm email that contained the account details.
Mr Laliotis deposed in his first affidavit that at about 3:00pm he telephoned Mr Griffiths and had a conversation with him to the following effect: Mr Laliotis: My client is at the bank transferring the majority of the deposit right now. The remainder of $35,000 is being transferred from another account into your trust account shortly. Mr Griffiths: Okay. Mr Laliotis: My clients will be on their way to my office to sign the Exercise of Option and the Contract after which time I intend to have them hand deliver the documents to you together with the deposit receipts for each of the transfers. Mr Griffiths: What time do you think they will be here? Mr Laliotis: Hopefully before 5:30pm, will you be there at that time? Mr Griffiths: I won't be here but they should deliver the documents to a David Baxter, I will let him know to look out for them. In his second affidavit, Mr Laliotis deposed that the conversation also included words to the following effect: Mr Laliotis: Can I verify the trust account details because my client is at the Bank transferring the funds? I have that the BSB is 062-XXX and account number is XXXX3000. Mr Griffiths: That's correct.
Mr Griffiths deposed that he had a conversation with Mr Laliotis during which Mr Laliotis read out the PVL trust account details, and he (Mr Griffiths) confirmed that they were correct. Mr Griffiths also deposed that there was a conversation to the following effect: Mr Laliotis: All right. Well I guess theoretically that I have until midnight to deliver the documents. Will there be someone at your office if we deliver the documents by 5.30pm? Mr Griffiths: It won't be me but I will arrange for someone to be there. You should ask for David Baxter. Mr Laliotis: We will be giving you the Notice of Exercise of the Option, the Contract for Sale and the Deed of Novation. Mr Griffiths: You will also have to include a Section 66W Certificate if you want the exercise to be effective as at today. Mr Laliotis: Thank you. I'd forgotten that. Yes, we'll give you that as well.
Aspects of the accounts of the conversation given by Mr Laliotis and Mr Griffiths are disputed by the other, but it is at least clear that confirmation of the correct trust account details was given by Mr Griffiths to Mr Laliotis.
Shortly thereafter, Mr Laliotis called Mr Chidiac and told him that the account details had been verified. Mr Laliotis also called Ms Elias (at about 3:30pm) and told her that the account details had been verified.
At 3:13pm, Mrs O'Shaughnessy sent an email to Mr Griffiths, in reply to his email sent at 2:02pm. Mrs O'Shaughnessy's email was in the following terms: Interesting hey? They already said they can't get the funds. I hope you enjoy a well earned holiday, Stephen! Incase [sic] we need other advise [sic] over the next couple of days who should we contact? I am assuming Margaret Wong? Is that right? Cheers, Helene P.S. What is your favourite tipple by the way? P.S.S. We can't afford Grange.
At 3:51pm, Mr Chidiac sent an email to Mr Laliotis that attached a National Australia Bank document that shows that an instruction had been given by Ms Rahe to transfer $203,492.96 from a National Australia Bank account into the PVL trust account at the Commonwealth Bank of Australia.
At about the same time, Ms Elias arranged for $35,000 to be transferred from a Commonwealth Bank of Australia account into the PVL trust account. That transfer is evidenced by a Deposit Receipt, issued by the Commonwealth Bank of Australia at about 3:57pm.
(The account statements for the PVL trust account record that the $35,000 was received into the account on 24 November 2021, and that the $203,492.96 was received into the account on 25 November 2021.)
Ms Rahe and Mr Chidiac went to Mr Laliotis' office at about 4:30pm to sign documents required for the exercise of the Call Option. At 5:06pm, Mr Laliotis sent an email to Mr Griffiths in the following terms: We attach by way of Exercise of the Call Option Deed dated 22 January 2019 the following the originals of which are currently being hand delivered to your office: Notice of Exercise of Call Option Duly executed Contract for Sale dated 24 November 2021 Counterpart Contract for Sale for execution by the Vendor and return to us in accordance with the terms of the Option Deed S.66w certificate Deed of Nomination of Call Option dated 17 August 2021 Confirmation of payment of balance of deposit monies in the sum of $238,492.96 into your firms trust account We note that you will not be in the office from 5pm today until Monday 29th November 2021 and we ask that your office provide written receipt of the hand delivered documentation
Later on 24 November 2021, at about 5:20pm, a letter and enclosed documents were hand delivered by Ms Rahe and Mr Chidiac to the office of PVL. The covering letter was in the following terms: We enclose herewith by way of exercise of option in accordance with clause 2.6 of the call option deed the following: Notice of Exercise of Call Option Duly executed contract date [sic] 24 November 2021 Counterpart contract for execution by the vendor dated 24 November 2021 Section 66W Certificate. Deed of Nomination of Call Option dated 17 August 2021. EFT confirmation of payment of balance of purchase monies in the sum of $23,8492.96 [sic]
It seems likely that Mr Griffiths was not in the PVL office when the documents were delivered. It is likely that he had left, having planned not to be in the office on either Thursday 25 November or Friday 26 November. It is clear that Mr Griffiths had informed Mr Laliotis of the fact that he would not be back in the office until Monday 29 November.
However, on the evening of 24 November, Mr Griffiths dictated a letter for his secretary to send to Mr and Mrs O'Shaughnessy on the following day. The letter was in the following terms: I refer to our telephone advice of 24 November last. The option holder has purported to exercise its option herein by delivery of the relevant documentation to our office after close of business last evening. As you know, I am away Thursday and Friday but I will carefully check the documentation on Monday 29 November to ensure that it was compliant with the option requirements. In the meantime, I think it is reasonable to assume that it is compliant. Your obligation under the option at this point is to sign the counterpart contract for sale and return it to us for exchange with the option holder within ten business days from 24 November. That document is now enclosed and we have marked up where you and a witness are to sign thereon. Please sign the document where indicated and return it to this office as a matter of urgency.
The letter refers to a "telephone advice" on 24 November. The only evidence of a telephone conversation between Mr Griffiths and Mrs O'Shaughnessy on 24 November is contained in Mrs O'Shaughnessy's affidavit of 10 June 2022.
Mrs O'Shaughnessy deposed that on the morning of 24 November 2021 she received a telephone call from Mr Griffiths in which he said words to the effect of: I have been told Lioncrest cannot exercise the call option.
There was no cross-examination about that conversation, or any other conversation that might have taken place between Mr Griffiths and Mrs O'Shaughnessy on 24 November 2021.
At 5:19pm on 25 November 2021, Mr Griffiths sent an email to Mr Laliotis in the following terms: We refer to your client's purported exercise of its option herein yesterday. Pursuant to the terms thereof, your client was to pay a deposit in the sum of $238,492.96. Our records show that only $35,000.00 was received into our trust account. When we made a further check at 1:17pm today, it showed no further monies as having been paid. Accordingly, your client is now in breach of its obligations under the purported exercise of its option and our client reserves its rights accordingly.
At 5:40pm on 25 November 2021, Mr Laliotis responded by email in the following terms: We have attached the remittance from our client's bank for the balance of $203,492.96 which was transferred over the counter at the Broadway Branch of the NAB into your trust account. One would think that having adopted this process rather than an on-line transaction would have effected the transfer sooner. As per the remittance the transfer of funds was effected at about 2.30pm on 24th November 2021 which we submit is within the time period required by the Option Deed. As our client attended the branch to effect the transfer the deposit funds she could have instead drawn a bank cheque and delivered the same to your office with the documents yesterday afternoon. Had this been the case the funds would still not have cleared in your trust account. Instead the funds were EFT into your trust account which was agreed to be acceptable and we would have thought the more expedient process in payment of the deposit. Please confirm when the funds have been received as they have certainly been paid.
On 30 November 2021, Mr Laliotis sent a further email to Mr Griffiths in the following terms: We refer to our telephone conversation today and confirm that despite the exercise of option occurring on 24 November 2021 we are yet to receive the vendor's executed contract. We are instructed that the delay in receiving the signed contract is delaying our clients finance application which, given the Christmas Holiday period will be severely hampered. We submit that our client is entitled to an extension of the completion date, equivalent to the time lost between the date of exchange and the receipt of the vendors contract. Kindly provide the vendors contract as a matter of urgency.
On 6 December 2021, Mr Laliotis sent an email to Mr Griffiths seeking an "update" as to when the vendors' signed contract would be received.
On 8 December 2021, Mr Griffiths sent a letter to Mr Laliotis that included the following: We refer to previous communications herein and, in particular, to your letter of 6 December last. Our clients have considered their position and do not accept that your client has validly or effectively exercised its option herein. Contrary to clause 2.6(b)(iv) of the Call Option, your client did not deliver a bank cheque payable to the depositholder during the call option period. Instead, your client elected to attempt to pay the deposit into the trust account of this firm (not the depositholder) by way of bank transfer. … Moreover, your client failed in its attempt to pay a deposit of $238,492.96 into our trust account by 24 November 2021 (being the last day of the call option period). Our trust records show that a sum of $35,000.00 was received into our account on 24 November 2021 but the balance of $203,492.96 was not received until late on 25 November 2021. For these reasons, our clients do not accept that the option has been exercised. Accordingly, we are instructed to arrange for the return of the $238,492.96 to your client herein.
On about 9 December 2021, the plaintiff lodged a caveat (AR701212) against the title to the 8 Torrens Street property, claiming an interest pursuant to a contract for the sale of land.
On 13 December 2021, Mr Laliotis sent a letter to Mr Griffiths that included the following: We refer to your letter dated 8 December 2021 and are instructed to respond as follows. Our client's position is that the option has been validly exercised for at least the following reasons. First, clause 2.6 of the Call Option Deed is a facultative provision, and its proper construction is one which will be consistent with its purpose and context, with it being appropriate here to adopt a flexible construction of the language so as to give effect to its commercial purpose (Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [33]-[34]). As noted by the Court of Appeal at [48] of Torbey, care must be taken in construing stipulations which use mandatory terms. Here, the proper construction of clause 2.6 contemplates the payment being made by a particular time, with the commercial purpose being payment of funds prior to the end of the option period (but not receipt of cleared funds). That commercial imperative was satisfied by the payments having been made by our client, about which we have provided evidence to you. Therefore the option has been exercised in accordance with clause 2.6, on its proper construction. Secondly, your client acquiesced in the payment being made by way of EFT. That was evidenced in an email exchange on 24 November 2021 between our respective firms, where our firm asked the vendors' solicitor to furnish their trust account details to facilitate the payment of the deposit in this manner. By return email of the same date, Mr Griffiths as solicitor for the vendor (and having the authority to act on its behalf) provided his firm's trust account details which permitted and accepted the payment of the deposit electronically. Consequently, the vendor is estopped from claiming that the method of payment did not comply with the Call Option Deed. Had the proposed payment method been a difficulty, then that should have been raised so our client could have made other arrangements. But it was not. Your client would be estopped from resiling from the representation and/or convention adopted by the parties as to adequacy of the method of payment.
On 14 December 2021, Mr Griffiths sent a letter to Mr Laliotis in the following terms: We refer to previous correspondence herein including your letter of 13 December last. Notwithstanding the matters set out in your letter, our clients remain of the view that the option was not effectively exercised. Accordingly, we have been instructed to return to your client the funds paid into our trust account. Not having received any alternative direction from you, we have drawn a trust account cheque for the said sum in favour of your client and that cheque is now enclosed herewith. Please acknowledge receipt of same.
The proceedings were commenced on 23 December 2021 by the filing of a Statement of Claim.
On 17 February 2022, Mr Laliotis sent an email to Mr Griffiths, stating that the purchaser "formally protests the return of the cheque".

Determination of the estoppel claim

As pleaded, the factual foundation for the estoppel claim consists of: 1. the content of the telephone conversation which Mr Laliotis says he had with Mr Griffiths at about 10:05am on 24 November 2021; 2. the email sent by Mr Laliotis to Mr Griffiths at 1:38pm on that day; 3. the email sent by Mr Griffiths in response at 2:00pm on that day; and 4. the telephone conversation between Mr Laliotis and Mr Griffiths at about 3:00pm on that day.
In essence, it is alleged that in those circumstances Mr and Mrs O'Shaughnessy, by their solicitors (PVL) acting by and through Mr Griffiths: 1. knew or must have known that Lioncrest would proceed to transfer the deposit funds electronically rather than deliver a bank cheque, and would rely on doing so as sufficient to meet the payment requirement for the exercise of the Call Option; and 2. abstained from asserting the right to instead receive a bank cheque payable to the depositholder under the Contract.
It is then alleged that Mr Griffiths did not insist on payment by bank cheque to the depositholder under the Contract, but rather, by his conduct as referred to above at [98], represented that Mr and Mrs O'Shaughnessy "agreed to payment by electronic funds transfer".
Lioncrest further alleges that, acting in reasonable reliance upon the representation(s), it: 1. took no steps to obtain or deliver any bank cheque; 2. effected the electronic funds transfers of $35,000 and $203,492.96 to the PVL trust account on 24 November 2021; and 3. later that day effected the delivery of documents to PVL to exercise the Call Option.
Lioncrest alleges that had the representation(s) not been made, it would have obtained and delivered bank cheques payable to the depositholder under the Contract. It is then alleged that it is unconscionable for Mr and Mrs O'Shaughnessy to seek to resile from the representation(s) (which were made with their authority) and assert that Lioncrest did not validly exercise the Call Option.
A further estoppel claim, that is based upon the failure of Mr and Mrs O'Shaughnessy to act in a timely way to reject the payment by electronic funds transfer, is dealt with later in these reasons.
I turn first to the factual foundation of the alleged estoppel. The first element is the telephone conversation which Mr Laliotis says he had with Mr Griffiths at about 10:05am on 24 November 2021. Lioncrest alleges that the gist of the conversation was that Mr Laliotis asked whether the O'Shaughnessys would accept payment of the deposit into the PVL trust account instead of by bank cheque, and Mr Griffiths undertook to get instructions. Mr Laliotis and Mr Griffiths are at odds on this matter. Their respective accounts are referred to above at [62]-[64].
It is noteworthy that Mr Griffiths has no recollection of any telephone conversation with Mr Laliotis on the morning of 24 November 2021. That absence of recollection explains his reluctance in cross-examination to accept that any such conversation occurred. When he was directed to the telephone records which indicate that Mr Laliotis called him at about 10:03am, and that the call went for 1 minute and 41 seconds, Mr Griffiths accepted the existence of that record but said that, as it did not prompt his memory, he could not accept that he and Mr Laliotis spoke at that time for that duration. When pressed further, Mr Griffiths said that he remained uncertain as to whether any such conversation occurred because he simply could not recall the content of any conversation.
I was initially troubled by Mr Griffiths' reluctance in this regard. However, when the evidence he gave in cross-examination was further considered in the light of what is contained in his affidavit, as well as the broader evidence of his involvement with the transaction the subject of the Deed, and the manner in which he gave his evidence in the witness box, I think that his reluctance was not unreasonable. The evidence in relation to the transaction suggests that Mr Griffiths was a careful and conscientious practitioner, and I formed the impression that he gave his evidence carefully and deliberately, in an endeavour to answer truthfully the questions put to him.
In submissions, the plaintiff described Mr Griffiths' evidence as vague and unconvincing, and resting "solely on a vague memory, unsubstantiated by any contemporaneous document such as a file note". I do not agree with that characterisation, although Mr Griffiths' lack of memory means that his suggestion that on the morning of 24 November 2021 Mr Laliotis was simply returning his telephone call and message from the evening before, should be regarded as essentially speculative.
It is important to consider the totality of Mr Griffiths' evidence, including his affidavit evidence of his regular practice concerning the seeking of instructions where a request is made to alter the method of payment for the exercise of an option. That evidence was not challenged. Further, in cross-examination, Mr Griffiths said that if Mr Laliotis had said at any time that "this is a[t] variance with the terms of the option" that would have been of "enormous significance" to him. That answer seemed to me to ring true. So, too, did Mr Griffiths' rejection of the proposition that he said "I'll get instructions" precisely because Mr Laliotis had said there was a departure from the terms of the option. The evidence is clear that Mr Griffiths did not at any time on 24 November 2021 seek or obtain instructions from Mr and Mrs O'Shaughnessy about a proposed departure from the terms of the Deed, including in relation to cl 2.6 which deals with the exercise of the Call Option.
Against that, Mr Laliotis gave evidence that he had a telephone conversation with Mr Griffiths at about 10:05am on 24 November 2021 in which he spoke to Mr Griffiths about paying the deposit into the PVL trust account instead of by bank cheque to the agent, and said that this was "not in accordance with the option terms". Mr Laliotis further deposed that Mr Griffiths responded by stating that he "will get instructions".
That a brief telephone conversation occurred between Mr Laliotis and Mr Griffiths at about that time is supported by the telephone records.
Further, Mr Laliotis' account gains some support from the testimony of Mr Chidiac and Ms Elias, each of whom gave their recollections of conversations with Mr Laliotis on the morning of 24 November 2021 (at around 10:00am) in which the possibility of paying the deposit by way of electronic funds transfer instead of by bank cheque was discussed. In particular, evidence was given (also by Mr Laliotis himself) of a conversation (at about 9:50am) in which he told Mr Chidiac that he would see if payment by electronic funds transfer was acceptable, and a conversation (at about 10:06am) in which he told Ms Elias that he had spoken to the vendor's solicitor about paying the deposit by electronic funds transfer into the trust account and the solicitor was going to get instructions from his client. However, the accounts given by Mr Chidiac and Ms Elias were not aided by any contemporaneous notes or other documents, and I would not accept that those accounts are particularly accurate in their details.
Mr Laliotis' account also gains some support from the terms of the file note he says he made in the afternoon or evening of 24 November 2021. The relevant portion of the file note is set out above at [63]. The note goes on to refer to events later on 24 November 2021, including a further telephone conversation with Mr Griffiths said in the note to have occurred at approximately 2:50pm.
Mr Laliotis said in cross-examination that the file note was made at a time when the events were fresh in his mind. Nevertheless, the weight which might otherwise be able to be placed upon the terms of the file note is diminished by the fact that it was not made during or shortly after the conversation the subject of the note. That the note was made at a later time is reflected in its partly narrative style (e.g., "A few hours passed and rec'd nothing back about EFT from SG so I decided to email request in writing at 1:38pm"). I also note that the second conversation with Mr Griffiths is the subject of two separate parts in the note.
The accuracy of the file note (and the reliability of Mr Laliotis' evidence more broadly) is also called into question by other evidence given by Mr Laliotis. In his second affidavit, he deposed (in paragraph 14) to having called Mr Griffiths and having a telephone conversation with him in the afternoon of 23 November 2021. Mr Laliotis annexed some file notes of that and other conversations with Mr Griffiths on that day, which he said were made shortly after the conversations. However, Mr Laliotis conceded in cross-examination that in fact there had not been any telephone conversation with Mr Griffiths as deposed to in paragraph 14 of the affidavit. He accepted that Mr Griffiths' affidavit was correct in stating that he (Mr Griffiths) had instead called and left a message on Mr Laliotis' voicemail. Yet, as Mr Laliotis said in cross-examination, his file note (which commences with "T/A Steven Griffiths…") indicates a telephone attendance upon Mr Griffiths. As submitted by counsel for the third to eleventh defendants, this evidence shows not only that the annexed file note is inaccurate, it also shows that Mr Laliotis deposed to a conversation with Mr Griffiths, described in direct speech, that did not occur. I will add that, in his third affidavit (6 July 2022), Mr Laliotis deposed that he stood by his version of the conversation set out in paragraph 14 even though he could not locate his phone record of it.
I note in passing that Mr Laliotis said that he made his first affidavit without reference to his file note of 24 November 2021. It seems strange to me that he would take that course, given that he said in evidence that he would have had it available. Mr Laliotis' explanation for not have regard to the file note, namely, that the affidavit needed to be prepared quickly, is unconvincing. Mr Laliotis also said that he "remembered distinctly" the matters put into the affidavit, and did not see a need to add anything or refer to the file note. In that regard, I note that, whilst the account of the conversation contained in the first affidavit includes a statement by Mr Griffiths that he would get instructions, it does not include a statement by Mr Laliotis that payment into the trust account would not be in accordance with the option terms. A statement to that effect is included in Mr Laliotis' second affidavit which he says was made after he had located his file note and looked at it. It seems that Mr Laliotis added that statement based on the words in the file note: If this is OK cause it is not in accordance with option terms…
I have endeavoured to carefully consider and weigh the totality of the evidence (including the evidence of Mr Chidiac and Ms Elias referred to above) that bears upon the content of the conversation which, based on the telephone records, I am satisfied took place between Mr Laliotis and Mr Griffiths at about 10:03am. I have come to the conclusion that whilst it is likely that Mr Laliotis raised with Mr Griffiths the prospect of Lioncrest seeking to exercise the Call Option later that day and, in so doing, the possibility of paying the deposit by electronic funds transfer into the PVL trust account, I am unable to be satisfied that Mr Laliotis made any clear statement to the effect that payment of funds into the trust account would be a departure from, or not in accordance with, the terms of the Deed. Even if Mr Laliotis also made reference to payment by bank cheque, I am not satisfied that he said words to the effect that payment instead into the trust account would be contrary to the terms of the Deed. I am also unable to be satisfied that Mr Griffiths said, whether in relation to the possibility of payment of funds into the trust account, or some other matter, that he would get instructions. To the extent that Mr Laliotis gave evidence to the contrary, I do not accept it.
In my view, the likelihood is that had Mr Laliotis made any clear statement to the effect that a payment of funds into the trust account would be a departure from, or not in accordance with, the terms of the Deed, Mr Griffiths would have understood the significance of that in the context of the exercise of an option. Moreover, had Mr Laliotis said that such a payment was proposed, it is likely that Mr Griffiths would have not only informed Mr Laliotis that he would need to obtain instructions from his clients, he would have promptly taken steps to do so. It is most unlikely that such statements were made, but not understood by Mr Griffiths, and even less likely that such statements were made, and understood by Mr Griffiths, yet he failed to seek instructions from Mr and Mrs O'Shaughnessy. I accept Mr Griffiths' evidence to the effect that Mr Laliotis did not tell him that payment into the trust account would be an alteration to the method of payment for exercising the option, and that had he been so told, he would have immediately sought instructions from the O'Shaughnessys.
In reaching these conclusions, I have taken into account the fact that no reference to the conversation is made in the email sent by Mr Laliotis at 1:38pm, in the letter that enclosed the documents delivered later in the day, or in the later written communications sent by Mr Laliotis - including the letter of 13 December 2021 (settled with the assistance of counsel) that merely refers to acquiescence in the payment being made by electronic funds transfer "as evidenced in the email exchange on 24 November 2021".
I have also taken into account the evidence given by Mr Laliotis in cross-examination to the effect that Mr Griffiths' email sent at 2:00pm was simply responding to a request for account details and "that's all he needed to do" (see transcript 122 line 7). Mr Laliotis also gave an answer (at transcript 125 line 14) to the effect that all he did in the discussion was ask for the deposit to be paid by EFT into the trust account, and "I just made the request, and then I made it in writing". This evidence suggests that the substance of the conversation did not extend to a request to obtain instructions about something that would not be in accordance with the Deed.
Mr Laliotis said in cross-examination that he did not consider cl 2.6(b) of the Deed to be a critical term. If that was his view on 24 November 2021, he might not have considered a change in the way the deposit is provided to be a matter of contractual significance. He might not have seen a need to raise with Mr Griffiths that proceeding to transfer funds into the PVL trust account would not be in accordance with the Deed.
In summary, I am satisfied that a brief telephone conversation occurred between Mr Laliotis and Mr Griffiths at about 10:03am on 24 November 2021. Whilst it is likely that during the course of the conversation Mr Laliotis raised with Mr Griffiths the prospect of Lioncrest seeking to exercise the Call Option and, in so doing, the possibility of paying the deposit by electronic funds transfer into the PVL trust account, I do not accept that Mr Laliotis made any clear statement to the effect that payment of funds into the trust account would be a departure from, or not in accordance with, the terms of the Deed. Further, even if Mr Laliotis also made reference in the conversation to payment by bank cheque, I am not satisfied that he said words to the effect that payment instead into the trust account would be contrary to the requirements of the Deed. Lastly, I am not satisfied that Mr Griffiths told Mr Laliotis that he would get instructions, whether about the payment of funds into the trust account, or on some other matter.
The second and third elements of the factual foundation for the estoppel are the email sent by Mr Laliotis to Mr Griffiths at about 1:38pm and the email sent in response by Mr Griffiths at 2:00pm. The terms of those emails (which are set out at [67] and [68] above) speak for themselves, but they must, of course, be considered in the factual context in which they were sent and received, including the conversation that occurred earlier that day at about 10:03am.
The fourth element is the telephone conversation between Mr Laliotis and Mr Griffiths that occurred at about 3:00pm on 24 November 2021. The respective accounts of the conversation are set out above at [73] and [74]. As already noted, both Mr Laliotis and Mr Griffiths dispute certain aspects of the account of the other. Mr Griffiths, for example, disputes that Mr Laliotis said that his client was at the bank. Mr Laliotis, for example, disputes that Mr Griffiths reminded him to include a s 66W certificate. I do not think that any of the those disputes are of significance. It is clear that during the conversation Mr Griffiths confirmed to Mr Laliotis the correct details for the PVL trust account. Moreover, having regard in particular to the terms of the emails sent at 1:38pm and 2:00pm, it must have been apparent to Mr Griffiths that the account details were being provided in connection with a possible payment by Lioncrest of the balance of the deposit under the Call Option into the trust account, by means of electronic funds transfer. In cross-examination, Mr Griffiths said that at that time he appreciated that that was what was being proposed.
On either version of the conversation that occurred at about 3:00pm, there was discussion about an exercise of the option occurring later that day. Whether or not Mr Griffiths had been told by Mr Laliotis that his client was at the bank, Mr Griffiths must have expected that if Lioncrest did seek to exercise the Call Option later that day, it would provide the balance of the deposit by means of electronic transfer of funds into the PVL trust account.
There is no doubt that, after having been provided with the trust account details at 2:00pm as requested by the 1:38pm email, and having the correctness of those details confirmed by Mr Griffiths at about 3:00pm, Lioncrest proceeded to effect the electronic transfers of funds (totalling $238,492.96) into the PVL trust account. The transfers appear to have been effected shortly prior to 4:00pm. At about 5:20pm, Lioncrest delivered the various documents to the office of PVL to complete its purported exercise of the option.
There is also no doubt that Mr Griffiths did not, at any stage on 24 November 2021, assert on behalf of the O'Shaughnessys that they had "the right" to instead receive a bank cheque payable to the depositholder under the Contract, or insist upon payment of the deposit by bank cheque payable to the depositholder under the Contract.
The question whether Mr Griffiths, by his conduct on 24 November 2021, represented that Mr and Mrs O'Shaughnessy "agreed to payment by electronic funds transfer" is more problematic.
As I have found, the brief conversation between Mr Laliotis and Mr Griffiths at about 10:03am did not include any clear statement by Mr Laliotis that payment by electronic funds transfer would be a departure from, or not in accordance with, the terms of the Deed. Nor did Mr Griffiths say that he would obtain instructions about whether payment by electronic funds transfer would be acceptable to Mr and Mrs O'Shaughnessy. I am satisfied that there was nothing said in that conversation by Mr Laliotis to indicate that Lioncrest was proposing something that departed from the terms of the Deed.
The email sent by Mr Laliotis at 1:38pm indicated that an exercise of the Call Option by Lioncrest was anticipated to occur later that day. The email contained a request that the trust account details be provided urgently. The email makes it clear that the purpose of that was to facilitate payment, by electronic funds transfer, of the balance of the deposit.
It is noteworthy that no reference is made in the email to the effect that proceeding as foreshadowed (including by making the deposit payment by electronic funds transfer) would involve any departure from the terms of the Deed. The email contains no request that Mr and Mrs O'Shaughnessy agree to any departure from the terms of the Deed. (There is also no request for confirmation that Mr and Mrs O'Shaughnessy have agreed to any departure from the terms of the Deed.) There is no reference to payment by bank cheque, or any statement to the effect that payment by electronic funds transfer was proposed instead of by bank cheque. It could not be safely assumed in the circumstances that Mr Griffiths would appreciate that what was being proposed involved a departure from the terms of the Deed.
The email sent by Mr Griffiths at 2:00pm was a prompt response to the request made by Mr Laliotis for the trust account details. Mr Griffiths did not seek or obtain instructions from Mr and Mrs O'Shaughnessy before he sent the email. The details were provided, and it can be said that they were provided to facilitate the making of the payment by electronic funds transfer as foreshadowed in Mr Laliotis' email. Mr Griffiths also requested Mr Laliotis to call him to verify the details before any payment by electronic funds transfer was made. In cross-examination, Mr Griffiths agreed that that was what he meant by the words "before proceeding". The email sent at 2:00pm contains no words to the effect that Mr and Mrs O'Shaughnessy have agreed to any departure from the terms of the Deed.
The conversation that occurred between Mr Laliotis and Mr Griffiths at about 3:00pm included Mr Laliotis reading the trust account details to Mr Griffiths, and Mr Griffiths confirming the accuracy of those details. There was also discussion about an exercise of the option that day, involving the delivery of documents to the PVL office. It must have been clear to Mr Griffiths that Lioncrest was proposing, as part of an exercise of the option, to pay the balance of the deposit under the Call Option into the account by electronic funds transfer. Again, however, nothing was said to the effect that what Lioncrest was proposing would involve any departure from the terms of the Deed.
The representation pleaded in paragraph 23 of the Amended Statement of Claim is that Mr Griffiths represented that Mr and Mrs O'Shaughnessy "agreed to payment by electronic funds transfer". The representation, as pleaded, seems to me to lack precision. Taken at face value, it would not satisfy the basic requirement of clarity. However, when it is read together with paragraphs 19 and 22, which refer to payment of the deposit by electronic funds transfer instead of by bank cheque, I think it should be understood as a representation to the effect that Mr and Mrs O'Shaughnessy had agreed to payment of the deposit by electronic funds transfer, instead of by bank cheque. As the Deed required a bank cheque for the deposit, it is inherent in that formulation of the representation that Mr and Mrs O'Shaughnessy had agreed to payment of the deposit by electronic funds transfer, instead of by bank cheque as required by the Deed.
In my opinion, the conduct of Mr Griffiths on 24 November 2021, viewed in its context, including the terms of the contractual relationship that existed between Lioncrest and Mr and Mrs O'Shaughnessy, does not convey a representation to that effect. To my mind, the conduct does not convey that Mr and Mrs O'Shaughnessy had agreed in any way to a departure from the Deed or an exercise of the Call Option otherwise than in accordance with its terms. I do not think that Mr Griffiths' conduct could reasonably be regarded as conveying such a representation.
The parties to the Deed must of course be taken to be aware of its terms, including cl 2.6 which sets out the requirements for the exercise of the Call Option. The Deed also contains cl 10.2 which provides: This document may only be amended, supplemented, replaced or novated by another document signed by each of the parties, whether in one or more counterparts.
In addition, it should be noted that Mr Laliotis said in cross-examination that he understood at all times that if the Call Option was not exercised in accordance with cl 2.6 it would not be effective unless the terms were varied. He then agreed that he understood that any variation had to be in writing signed by both parties, and that (at some point) he had advised Lioncrest of that (see transcript at pages 85 and 97-8). Mr Laliotis' later answer to the effect that he thought he could rely on Mr Griffiths' response "notwithstanding 10.2" seemed unconvincing (see transcript at page 110 line 48).
In circumstances where: it was not said to Mr Griffiths that payment by electronic funds transfer would be a departure from, or not in accordance with, the terms of the Deed; there was no mention of any variation to the terms of the Deed (or any mention of cl 10.2); and no request that Mr and Mrs O'Shaughnessy agree to an exercise of the Call Option otherwise than in accordance with its terms, the conduct of Mr Griffiths could not reasonably be understood as conveying that his clients had agreed to any departure from the terms of the Deed (see Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [35] per French CJ, Kiefel and Bell JJ; see also Galaxidis v Galaxidis [2004] NSWCA 111 at [93] per Tobias JA, with whom Giles and Hodgson JJA agreed).
At its highest, Mr Griffiths' conduct could reasonably be understood as conveying that Mr and Mrs O'Shaughnessy were content for Lioncrest to proceed in the manner foreshadowed, if they so chose. However, that falls well short of a representation that Mr and Mrs O'Shaughnessy had agreed that they would accept proceeding in that manner as if it were in accordance with the terms of the Deed.
Accordingly, I am not satisfied that the conduct of Mr Griffiths on 24 November 2021 conveyed any representation to Lioncrest (via Mr Laliotis) that would support an estoppel that would preclude Mr and Mrs O'Shaughnessy from relying upon the terms of the Deed.
Lioncrest chose to proceed to exercise the Call Option in a manner that was contrary to cl 2.6 of the Deed. It did so without either seeking to have the Deed amended in the manner required by cl 10.2, or otherwise clearly seeking the agreement of Mr and Mrs O'Shaughnessy that an exercise of the option in a manner contrary to the Deed, as proposed by Lioncrest, would nonetheless be effective. In proceeding as it did, Lioncrest took the risk that Mr and Mrs O'Shaughnessy would rely upon the terms of the Deed to assert that the exercise of the option in that manner was ineffective. In these circumstances, it would not be unconscionable for Mr and Mrs O'Shaughnessy to so rely upon the terms of the Deed.
The plaintiff's primary estoppel claim has not been made out.
A further estoppel claim is pleaded in paragraphs 34A-34D of the Further Amended Statement of Claim. This claim rests upon the same factual foundation as alleged in support of the primary claim, together with the fact that Mr and Mrs O'Shaughnessy did not, in a timely way (that is, prior to the expiry of the Call Option Period) reject the plaintiff's payment by electronic funds transfer and give the plaintiff a reasonable time in which to substitute a bank cheque.
I will approach this claim on the assumption that the plaintiff is correct in contending that the Call Option Period for the purposes of cl 2.6(a) of the Deed did not expire until either 25 or 26 November 2021.
The plaintiff cited the decision of the Supreme Court of New Zealand in Southbourne Investments Ltd v Greenmount Manufacturing Ltd [2008] 1 NZLR 30; [2007] NZSC 62 at [20]-[21] as illustrative of the way the claim was put. That case concerned an option to purchase which was exercised by the provision of the required agreement, accompanied by a personal cheque for the amount of the deposit, as opposed to legal tender (as was required). The covering letter from the purchaser's solicitor to the vendor's solicitor contained a request that receipt of the agreement and the cheque be acknowledged. The vendor's solicitor returned a copy of the letter with the words "Received 27/10/05" upon it. There were some further communications between the solicitors, but at no time before the end of the last day for the exercise of the option (31 October 2005) was any complaint made about payment by personal cheque.
The Supreme Court of New Zealand allowed an appeal by the vendor from a decision to enter summary judgment against it. The Court did not determine the estoppel question but allowed the appeal because there was not enough evidence before the Court for the question to be determined (see at [23]).
However, the general statements made by the Court indicate that the rationale for the claimed estoppel was that it would be manifestly unjust "when the vendor has given the appearance of accepting the personal cheque" to allow the vendor to resile from that stance after it is too late for the purchaser to remedy the position.
In my opinion, this claimed estoppel must fail in the present case because Mr and Mrs O'Shaughnessy, through Mr Griffiths, have not given the appearance of accepting as valid payment of the deposit by electronic funds transfer into the PVL trust account. As I have found, no representation was made by Mr Griffiths to the effect that Mr and Mrs O'Shaughnessy had agreed to any departure from the Deed or exercise of the Call Option otherwise than in accordance with its terms. In those circumstances, and having regard to the fact that Lioncrest took the risk that Mr and Mrs O'Shaughnessy would rely on the terms of the Deed, no injustice arises from any delay on the part of Mr and Mrs O'Shaughnessy in complaining about the manner in which the deposit was paid. It was not incumbent upon Mr and Mrs O'Shaughnessy to inform Lioncrest that payment in that manner was unacceptable. They were also entitled to take some time to properly consider the question whether the purported exercise of the option was effective.
I would add that, even if Lioncrest had been informed that the payments it had made were not acceptable, I do not think it has been shown that it would have been able to procure a bank cheque for the required amount within the required time. No evidence was adduced by Lioncrest on that particular matter. Also, the evidence suggests that whilst the $35,000 was received into the PVL trust account on 24 November 2021, the $203,492.96 was not received into the account until some time after 1:17pm on 25 November 2021. It was not shown when those funds could have been made available to Lioncrest to enable it to procure a bank cheque, and there was no evidence that other funds were available for that purpose.
The estoppel claims made by Lioncrest fail for the reasons set out above. It follows that Mr and Mrs O'Shaughnessy are not precluded from asserting that as the transfer of funds for the deposit was not in accordance with cl 2.6(b) of the Deed, the purported exercise of the option was ineffective.
As the estoppel claims have failed for reasons other than that Mr and Mrs O'Shaughnessy are not bound by the representations made by Mr Griffiths, Lioncrest's alternative claim against the third to eleventh defendants for breach of warranty of authority does not arise. It is not necessary to deal with that claim.

Conclusion

I have held (at [44] above) that the purported exercise of the Call Option by Lioncrest on 24 November 2021 did not occur during the Call Option Period and, hence, the attempt to exercise the option was ineffective. Even if that conclusion is incorrect, I have also held that the estoppel claims raised by Lioncrest have not been made out. It is accepted by Lioncrest that, absent estoppel, Mr and Mrs O'Shaughnessy can assert (as is the case) that the purported exercise of the Call Option was not in accordance with cl 2.6(b) of the Deed and was thus ineffective. On either basis, it must be concluded that no binding contract for the sale of the 8 Torrens Street property came into existence.
It follows that the Further Amended Statement of Claim must be dismissed. The Court will so order. The Court will also order that the plaintiff pay the defendants' costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2022

Lioncrest Capital Holdings Pty Ltd v O'Shaughnessy

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (16)

Cited By (1)