Mansard Developments Pty Ltd v. Sackville, Kareen Sherry [1981] FCA 209

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Appellant AND: KAREEN SHERRY SACKVILLE Respondent oO RD E RS JUDGES MAKING ORDER: Bowen C.J., Deane and Morling JJ. WHERE MADE: Perth DATE: - 12 November, 1981

THE COURT ORDERS: 1, THAT the appeal be allowed with costs.

2. THAT the orders of the learned trial judge be set aside.
3. THAT in lieu thereof there be a judgment of _acquittal in respect of each of the three charges and an order that the respondent pay the

Tit THe FESURAL COURT OF AUSPRALIA POsDEN AUSTRALIA DISTRIC? RAGISTRY DVERAL DIVISIO?T

M.A. lo. G25 of 1981 VWwA. Ho. G26 of 19381 VaA. NO. G27 of 1921

soy racer ema) rye yeas ses 2 ee ep aaany Sat at > CARD DEF GLOLD LIT 2Cy, TID an 7 _ nen ast wap et mee averatr a

CORAM: Boven C.J.,Deane and Morling JJ. 12 Tovenvder 1981 Perth.

gudze of this court given in proceedings brought by Kareen

Sherry Sackville (the srosecatrix) alleging thet Hansard

Deoveloncents Pty, Lanzted (lensard) coatravesed s.535A(1) (>)

of the Trate Fractices Act 1974, Thav cection rrovides,

"O74 (1) A corzoratic. 205, Lf trade or ccrerce, in coe mtn tue sale or grant, ov the ross ale or Grant, of an inverect 2.1 Lo ee.técic. th the tromovti any J@ars of the sal? or gra..v of ar est in Jana -

(bd) make a false or misleading statement concernin the nature of the 2nteréest an the land, the orice cayable for tne land, tne locatzon of the ia..d, the

characteristics of the laai, the to 'yhich the land is ca ,adle of b put or may lawfully be sut or the exictenrce or availability of facilities associated with the la.d;"

orececasrix alle-ed 1. oaen case "iat J@i.lari, DeLic 42 wOrtovacsion, i.. brave ur commerce, st, co. brary co Une

provisions of 5.79(1) of the Act, co.tvavore tne provisiois of s.53A(1)(b) in that, in connexion with the promotion of the sale of an interest in land, it nade a false statenent conceruing the existence of facilities associaved with the land. Section 79(1) provides that a verson .no contrave..es

s.53A(1) 18 guilty of an offence. The tarze _rosecutio.is

were heard together by consent. 'he varticulers of the +

first cnarse were tnat, ou or about 260 Antail 71950:

(d) not all tne lots in the advertisement referred to in parasraph (c) were serviced vith electricity." The particulars of the secord ami third charves were virtually ideatical with those given 2: respect of t first charge, exceot that they referred to alivertiserenis wublished in "She cuncay Pines" nevscaper of 11 ana é May

within the meantag oF 3.5534 of the .ct ama trat the three

GBAwAVEYULSementS ev hus Of Lts Year, " - - - Ws ace cranes , ~ yar o> =a The wv2r ral Taavs were 205 La i218 tut? Zt ine

undertaien i svaces. Tu i.volves the sabuirvisien of vroaa

acres into a large sumber of lovs for recor. .antial vrurcoses

sever ith wne provision of Laci for a er r.ary senoal

. a@.a recreation reverves. Kel: ccott 15 %0ut ovenwy-Tiv

"hen the three advertisenents; the subject of these

Flanning Soard, 'The roads hai been formed ani kerbed and mas, electricity, water, sewerage and drainage were available to the lots. Some of the lots had been sold and some houses erected, fhe defendant was promoting tne sale of the

aii the vlans of subdivision lodgea with tie Toi.m Flacning Toard for aoproval. The roacs nad bee: for'.eu anl hesbea ani vrovicio: nelte for severase ati drai.azre of gach lot. gLectricity mainc nad peen provicer alons We wiigvay Drive che souther: bourlavy of stave 5), epadlin connections to be ade te nine of vhe lots in that stage of

cvertisements in: question vere in the follovins terms:

jiansare Land division offers a lge selection of high, level building sites at an affordable orice, 29,000 to 311,050.

You can build with any puilder ara sell av any Time. 'There are absolutely ZSTRICTIO'S

with sas, elect. vater, kerbed roads ar. ween sewerage and drai-.age.

jive oF vne .@. Visco trargler etavie , Tue nelmscoty Villace choc. eceauvre and ohne Leliceots Sigh Sehnsol, vith Sw. ness of oDlari.2 Tiel-s ani The orimary senool on the estate.

AUP ON SITD JONDAY 2-5 Psi, FOLLO. Pik SIGVS OrF ADBALY HIGHWAY UP LAKT RD TO CAMILLO RD.

It is clear that the advercisoients vere states: ts made by Mansard, ir trade or commerce, 1s conmnezioa vith the pronotion of the sale of interests in land, and tna the statenents concerned the e:tistence of facilities associaced

with the lasc, ramely, electricity. The critical icsne in

Sue cace Jac wagvher land veferr2c co i: the auverszscene: zreludec the lovc i: stace 3S. Tf shore lots wer? ricluuc.

then plainly the statement that "all lots cre fully servicec with ... elect." was false because orly nie of

The Toim Planning Board gave its fi..al approval to the subdivision ofthe land included in scaze 5 on 27 Vay

1980, that is to say, sone 16 days after the 1 tnree advertisemerts had bee. publishec. "Uarsari ¢id not commence to sell lots in stage 5 until eboout du..e 1930. Before that date the lots in that stase could theoretically

nave been offere? for sale (subdject to Tow Flanii..g Doari

auproval). Buy they vere vot, in fact, so offerec. There

~eads and iecy ceverage ard draw ase". gene of these

advertise ients cortained an offer by la:cara to say stamp duty ai legal coses incurred Dy purchasers who agreed to gurchase by 30 July. There 15 ..0 wuggecvic. that there

'aS auvenaig false or iusleadinag about the aivertzsenents

eed te Comte TO Ae re . 4 -n - ' AULA AID Loe. CO 112 od COGS Ak a ~ nen

'70 purenasers of lots is staze 5 gave evivel.ce Sor the prosecution. Mr. Ashby vho ourchased lot 160 saw tne edverticenent -vyhich appeared on 4 .ay. At that time he vas consicerijc the ourchase of a bloc of land in sone suitable area, but nad rot fixed uson Tllavarra Gardaeis as

the areca in which he wishec to live, Subseaue tly, late in

The offer of the payment of these fees varticularly i:.terested

o2 more', I was nore than interested in trat vartiacular

cvatvere .t i. cho naver, Theat vas 'nat precirivatea me

whic cexvicules cloex." de increcve. the Lani to ards

si. of July and Signei a contract To Du it o2 15 Ausus7 1930.

Tl@ sai. wnat whe. he wee veo look at the - vhe duly advertzceuent he assuied Unat nower oak reaaily

or Feluscotc., He inspected the Illawarra Gorte.c cubdivicion

ani made contact with a salesnan av the beracnang oF June 1550.

Ne had ao Jiscussio.. vith the calesmar., or with ayo'e else,

about the facilities 1: the area. Tle said: "Naving see. the

Scre were wider the wisvosci¢e: thay 2s. cas a fully cervicec vloeck; Las, ete", Se agree. to Tureance Lot

• AT me 7 ac vas oS c TA ~ nd Lot on 12 Oule 1350. Le @u pears tnat le oa .0t vce 2.7

cvisements at any time srior to makinig his purchase.

Snere vas no eviteice that the advertisenents co.tasniug the statesent thac all tne lows were fully serviced with, inter alia, electricity were cublisned or

1at the tnrec avvertise- nenvs which appeared in 4Aor2l and "lay referred to @il sisec,

being unsold av the date of sublication of those adver

a.cluséuw ia tne seneral iuescrivtio. of "Tllavarra Gaorieas

O- tie Kayes OF ouclrcation of cho 22 fe 2aners 12a Chach tne Ps mt apsartea anna ve eraaen - - 44 ee >

QuverTicemenvs acocaren, (2 AGTTS ulac Vis Was So. See aasty 7 2 MA tare Tae eqs 400 ra] T ne Tre iysen ve. Riley Vellay Fou. Tete. (1950) 29 A.D.LR. 257

c. The leer. ed trial eudege ascertea the Lrosecatrasts arguuent that the auvertiseroris referred to all cites veing u.cold at the cte of bublication of each acverticone: t, he was of the opzrion that the lan: described 2n the ELtS rererre. to yarcele of lend yhycically laig within the senerel CESCraptio.,

"Illawarra Garde:s 7 staces 3a, 4 and 5 fell within the descrinvtior "7 Gardens" He said that the pronotion of the sale of laid in subdivisions fox resicential surposes is ar on-ceing business activity. He thoucht that tne acverticin- of building sites or lots for sale under the general heacirg of "Tllawarra Gardens Kelmscott" wag part of ia@uisard's covered Dy that peneral

o proxotion of al] the unsold land vIUS included parcels of

. Seing ef th hec beer made ous anc Tined lansarc (300 0. each the rmocesty of the peralties urinosed no doub+

• view which his =orour BDPEEMS to have forned enars) thet Lalcaz. C1d sot 1:Ve@Ld to esfer co seece 5 i: the EnVELTLEE NG: CS VRLOL axe the questio

3 in the "Illavarra Garlens" subdivaciona, whetner or ot they were being offered for sale at the tame the advertisenents were »ublished, The :atter ic one of

impression ujgorn which -inds carn easily differ and we have

Lot Zoviu iv tasy to jec2r.e vinth @ .ft.inee., The cor.clusion to vhien °°? have ctre "Le thas the vetc.eice co Nal? Tove" 2

Tne adver*lsemencs tuculu 2100 Se sueveccod ac cefervi..> co all iientifiable unsold lots in the overall Illawarra Gardens Uovate, whether actually offered for sale or not, but to those lots to which the advertiseuents refer as being tk svbject of +

vane "Lani sale on sice today", A .aber of co.1siceraiions has

1PSt, the auverctiseize1ts maxe clear that Illavarra

Garders is a very emvensive cevelopmei:t«., Reference is made vo

8.5 hectares of wlaving fielc¢s and a orimary school beiug

• & = So

~aames ty 3 saat as wiht jane 6 SeGms to US vlat an Ora l.lery

the advertiseme:ts cubsequently refer. Yvlai:sly, sot all lots in the overall estate were wecluded 1n wiat "larse selection": soie lots had alceady bee. soli; oOvhers were ce sublic use. "The adverviceients invive ide: tificavion of the

Thiraly, the cravical reference to "all lots are fully serviced ... witn elect. ..." follo's the reference to the large seleevion of "building sites". 'thile we are conscious of the force of che argunent thai this reference snowla be seen as vrart of an overall provotion of the estate aid therefore as referricg to lots other than those crecently offered for

sale, we consider that an ordinary reauing of the advertisenent

HH o iy ror) oO ck fe) ct S oO i?) oO tS OQ et S 1¢s) fos ° pn st we % ch a yy Q bed oO

@ Lr oO Mr oO oO ¢ fe) @ je |e -! fo) cl i>) b pb

selecticn of Duildinrg sites, being the blocks offered for tele in the "la:c sale on s2ve to-day", to wich reference -

o his Jecision ari lave nesitaved o3fore placiztg a aiflerenc wc

_ . as . wan am Ae ~ ° 5. _ ~ ws a -* CO. STPUCTLON WpOA the Gliverticeve ta Zrom that vhieh comceries

rust toa. «The -12act.g of che woras used is not Free Tron doubt and it is untorvuw.ete that che land offered for sale .ac mot cescribeé with greater clarity. Tt may ell be tnat the woris used in the adverviserents vere ticleadi:s

seaniog of s.23(1)(o) of the Activ Duy trav vas .ov ailesed.

If there had been evideice that i a:sard led purchasers of lots within stage 5 to believe that the May adverviseneits referren to such lots, the positio. vould have deen different, If that had been the case, co.:traventions

OF Une 32Ctio1 * OULU Lave See. covnclivae.s. mech 301.ora-

vy enviorc ''0ul4a nave o OF Cie alveerzceEenentc, Suc at wre iaver of whe cuuceauert conduct leading purchasers co believe that the advertisemen

referred to the lots in stage 5. But there is no suggestion

that this was the case. ir. ashby caid that he assumed that

tne lots in stase 5 vere serviced with electricity. It is crue that he read the Vay advervisenents but subceavently he

reac other auvertisemerts betcore purcnasing his lot. Those

serviced, Apoarerntly ir. sioffatt did sot read any of the

advertisements. Ke :ade the assumption that the block ne ae

na. D282. SO servicer. Zt vay ve conree:i32d thas alvnes Zug vhree - acyerrii7?,.22.73 fraaa oriewarnall- -ublisne: rerevred orly +t A VED CL IS .oee Sy 2S. OPLTAnaLn | (Uta, Pere' 2a ¥Y vO -ho lard within states Fa aid +, ctuvsequens cveavs couic have ae _oos a Pn - - - + ° fod "Ay seespa ey?

ecuced Them co reter also to vhe lati in sva.je 5. Yor exanole,

. neste Wao <7 4 any eral irre Ts! or + font, 22 the cousany ned 2.1 Jue 1509 affined a cony of o..g€ oF the

advervwisemerts co a io¢iceboarci advertisi.g the sale of lond

wiviin svase 5, the reference to "all lots" in the advertisenent

would clearly refer to the locs then being offered for sale ik. stage 5, althouzn the words originally did not have that meaniuc.

But there is nothings in the evidence to suggest chat the

company did anything after the publication of the advertisements

that the advertisenents promoted the sale of the lots in

svase 5 of the subdivision although such lots were sot being offered for sale. 'Je agree that a perso. may promote the

2. ale of land without, at the same time, offerings 1¢ for sale. But ve do rot think the arguient assisvs in ceterminiig

whether, as a matter of construction, the advertisenents

referred to the lots in stage S. If the state.ent chat "all lots are full: serviced" dic not refer to the lots i:. sta.e a +nere was rotwning false about the statement and the offerces Jere .ot rade out.

Tt is trne that tne sale of the lot: in scage 5 eo menced within avout taree veers of tle publicatic.. of the advertisenent rudlishei on 11 lay. That say explazn way fir.

Agltr oglievert that che Llovs in stasje = sere servicei with

lots im stase 5. In the abse:ce of eviience thav the siaverents =] .

in the three advertisements verse applied, expressly or by

implication, to the lots in stave 5, ve wo not think that contraventions of the section were establicsned.

She azpeal should be alloved with costs. 'Zhe orners °a.e Ly the lear-eu terial gis le are set asice anu

a1 lieu cnereo? iheve choul? oe a gudmente of acauvittal wet O orar Gla t che veliso. dens

I CERTIFY that this and the 13 preceding pages are a true copy of the Reasons for Judgment of