North Coast Conveyancing Pty Ltd v Bradbury

Court of Appeal (NSW)|2015-10-06|Before: Basten JA, Leeming JA

Solicitors: Maccallum Lawyers (Applicant) Byrnes Lawyers (Respondents) File Number(s): 2015/87060 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 24 February 2015 Before: Maiden SC DCJ File Number(s): 2012/377790

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Issues

The trial commenced in the District Court at Port Macquarie on 6 November 2013 and proceeded for three days. It was then adjourned to Sydney on 30 January 2014 when an amended statement of claim was filed containing 13 particulars of breach of duty on the part of the appellant, including some 20 subparagraphs. In fact, the case ultimately run was not complex. The respondents relied upon a report of a solicitor with particular experience in the area of property law, Dennis Raymond Bluth, who identified various elements of inadequate advice on the part of the appellant. His opinion was accepted by the appellant and breach of duty was ultimately conceded. The breaches were, broadly speaking, twofold. First, the appellant failed to provide written advice to the respondents, on or before the deed of option was signed, that the term of the option was for a period of 12 months with no mechanism for an extension of the term and that, if the option were not exercised by 5pm on 18 September 2010, the respondents would forfeit the option fee.
Secondly, although by mid-September 2010 the respondents were not in a position to settle the purchase, they should have been advised to exercise the option, a course which would have placed them in a better position to negotiate an extended period for settlement and might in any event have permitted them to rescind the contract and recover the option fee, as the deposit under the contract.
Breach being established, it was necessary for the respondents to prove on the balance of probabilities the harm which was caused by the negligence. [3]
In seeking leave to appeal, the appellant contended that, having identified causation as an issue, the trial judge failed to make the necessary findings of fact to support a judgment in favour of the respondents. The respondents conceded that there were no express findings as to causation, but nevertheless contended that the loss suffered was the forfeited option fee and that there was an implicit finding (which was correct) that the negligent conduct of the appellant caused the loss of the option fee. Given that the amount of the fee was not in dispute, the respondents also submitted that, if there were some basis for asserting that a lesser loss had been suffered, the onus to establish a reduction lay on the appellant, a task which it had not assayed.
Before addressing the issues in greater detail, it is appropriate to note that the task facing both the parties and the Court was rendered considerably more difficult than it should have been due to the form of the judgment provided by the District Court. The form of the judgment suggests that it was a draft. The date on the front cover was recorded as 18 February 2015, but it appears to have been delivered on 24 February 2015. Although there was a stamp on the final page (numbered page 1) certifying the correctness of the document, it did not indicate the number of preceding pages, was dated 6 June 2014 and was unsigned. Paragraphs were numbered but the numbering recommenced with each heading; there were indications within the text of omissions to be completed later. There were also paragraphs in which it was difficult to determine whether evidence was being summarised or findings of fact were being made. In the result, it has been necessary to proceed on the basis of a flawed record.

(a) executing the deed of option

The respondents' case on causation in relation to the initial breach of duty involved two simple propositions, namely that (a) they were not aware that the option was required to be exercised within 12 months without a mechanism for extension and, (b) had they been advised of that fact they would not have entered into the option. It followed, the submission continued, that (c) had they not entered into the deed of option they would not have lost the option fee. This last proposition was no doubt correct: the problem arose from the failure of the trial judge to make sufficiently precise findings with respect to the two earlier propositions.
With respect to the state of mind of the respondents, the judge made a finding in the following terms: "It is clear and I accept that the plaintiff Wayne Bradbury believed that the length of the option agreement was for more than 12 months and that he did not understand that if the contracts were not exchanged then the option agreement be forfeited on the September date. In his evidence he spoke of a belief that he had 12 months and six months in which to complete."
There was no finding as to the understanding of Ms Bradbury, although she gave evidence in that regard which will be noted below.
The respondents' case in this Court was that each had given evidence that, had they understood the terms of the option, they would not have entered into it. In written submissions it was said that Mr Bradbury was not challenged on those assertions; in the course of oral submissions, counsel conceded that he had been challenged in cross-examination, but had not been "controverted." [4] How that should have occurred was by no means clear.
Mr Bradbury gave evidence that he and his wife had taken up a franchise in the Harvey Norman Port Macquarie store in mid-2009. At or about that time, they placed on the market for sale a farming property of some 500 acres, near Yass, which they had purchased in 2004. (Prior to moving to Port Macquarie, they had lived and worked in Busselton, WA.) Mr Bradbury said that he and his wife had agreed to rent a property in the Port Macquarie area, ideally a property which they wished to buy, and complete the purchase when the Yass property was sold.
Mr Bradbury gave evidence of telling both the vendors (Robert and Mandy Murrell) and Cory Darcy, the principal of the appellant who was acting on the conveyance, that they would need "at least 12 months (and possibly 18 months) in which to sell the property in Yass." He then stated: [5] "I understood that, if we could not sell Yass within 12 months we would have a further extension of time in which to sell it. As such, I understood that there was no 'magic' in relation to that timeframe."
Mr Bradbury further stated, after noting the circumstances in which the deed of option was signed: [6] "I did not receive any letter from North Coast Conveyancing saying that we would lose out $67,500 [sic] if we did not exercise the Option by 18 September 2010. I assumed that if our house had not sold by that time we would simply get an extension of time to sell it."
Referring to the work done on the house, Mr Bradbury also said: [7] "We carried out those improvements because we had an expectation that we would complete the purchase. As noted above, I was not ever advised that if we did not exercise the Option by 18 September 2010 we would lose the Option fee and our right to purchase the property. Had I been advised of that I would never had [sic] entered the Option Agreement. Furthermore, I would never have carried out the abovementioned improvements. Instead I would have simply rented premises until we sold our property in Yass. At that time we would have purchased elsewhere."
Ms Bradbury made a statement partly in similar terms: [8] "Had I understood the effect of the document we signed I would not have entered into the Agreement. … We would have been much better of [sic] simply renting premises until Yass was sold and then looking to buy a property. Had I been advised of the potential pitfalls in proceeding along the way we actually did, I would never have entered into the agreement."
Counsel appearing for the defendant at trial objected to the evidence at [19] above on the basis that it offended s 5D(3)(b) of the Civil Liability Act. After discussion, the objection was withdrawn, although it was clearly a valid objection. On any view, statements made, after suffering harm, about what would have been done absent the breach of duty are of little weight. [9]
In order to make a finding as to whether or not the respondents would have entered into a deed of option had they been aware of the precise terms, it was necessary to deal with a number of factual issues. [10] First, as the material set out above suggested, Mr Bradbury appeared to have a different view as to the content of the legal document (providing for a 12 month period to exercise the option) and the separate possibility of an extension, which might need to be for six months. That he had such an understanding could also be derived from his evidence in cross-examination, which concerned a conversation with Mr Murrell, a vendor, prior to documenting the agreement: [11] "Q. And I'm suggesting to you that he [Murrell] said to you: 'We can give you 12 months but you need to pay 10% up front. I need some funds to complete the subdivision, including fencing and getting electricity onto the second block, but you can rent the place for $350 a week until settlement.' Did he say that to you? A. Not at that time but it was done when we first, when we decided to buy the property, that was the conditions. Q. So this was way back in the early -- A. Yes. Q. - early part of September? A. Yes. I've got no - that was exact words. Q. You said, 'That sounds fine. We would like to do some work on the place ourselves before settlement if that's OK'? A. Yes. Q. Do you remember saying that to him? A. Yes."
He was further cross-examined as to events during 2010: [12] "Q. In any event the months sailed past, you were paying the 350, you were living there, you were doing all these things - A. Yep. Q. - and you believe you had 18 months to get it altogether - A. Correct. Q. - to pay the rest of the price? A. 12 months with option, correct. Q. 12 months option? A. 12, 12 months with an option. Q. 12 months with an option, all right. A. Correct."
When Ms Bradbury's statement was tendered, objection was taken to the first sentence set out at [20] above. The judge dealt with it by stating, "Just state of mind, it's not binding against your client." The passage, like the similar statements by Mr Bradbury, was inadmissible, pursuant to s 5D(3)(b) of the Civil Liability Act.
Ms Bradbury also gave evidence as to her understanding of the period of the option in cross-examination: [13] "Q. Okay, and certainly you're not suggesting that Ms Darcy said anything about 18 months at that meeting, are you? You're not suggesting that, are you? A. I knew there was 12 months with an extension of 6 months which would take it to 18 months but how it was worded I'm not exactly - I know it was 12 months with an extension."
Again referring to the date on which the option deed was signed, 21 September 2009, in the presence of Ms Darcy, Ms Bradbury was asked: [14] "Q. … I'm suggesting it was said to both of you … 'If you lock this in today, you're able to move into the property and pay rent and you've got a year to get finance and purchase the property', do you remember those words? A. Honestly, no. … Q. Okay, 'If you don't, you will have to move out of the property and you will lose this' and she pointed to the cheque, do you recall that? A. Honest to God, I would never have handed it over if I thought we were going to lose $67,500. Honest to God, I wouldn't have done that."
It was a matter for the trial judge to determine whether the respondents believed on 21 September 2009 that, in paying 10% of the purchase price, they were required to exchange contracts within 12 months, pursuant to the option, but with an expectation (however induced) that they would be able to obtain an extension of that period, or, on the other hand, whether they believed there was a mechanism within the deed for the grant of an extension, without any other variation of the financial arrangements. It was also necessary for the trial judge to determine whether in stating that, had they been aware of the precise terms of the deed they would not have entered into it, they were really saying, as appears from Ms Bradbury's evidence, that had they appreciated the possibility that they would not be able to complete the purchase, they would not have taken out the option.
Precise factual findings in these respects were an essential step in determining whether the failure of the appellant to provide written advice as to the terms of the option, presumably in advance of the meeting at which the option was signed, would have led the respondents not to sign the agreement. No such findings were made. Nor can such findings properly be made on the basis of a transcript of their oral evidence.

(b) failure to exercise the option

The events which took place in August and September 2010 tended to confirm the suggestion that Mr Bradbury knew that the contractual position involved a 12 month period within which to exchange contracts, but that there was an understanding with the vendors as to a possible extension, if the Yass property had not been sold in the meantime. He was cross-examined as to a conversation he had with Mr Murrell (a vendor) in August or September 2010 to the following effect: [15] "Q. But you knew that in or about 18 or 20 September - A. Yes. Q. - were out time, you knew that? A. Yes. Q. And I'm suggesting that you were never mistaken as to the fact that you only had 12 months to enter into the contract because you had a conversation on the property you were renting with Mr Murrell in early August 2010 when you said the following words to him, or words to the effect of, 'I'm starting to get a little worried as we're running out of time to settle on this place.' … Do you recall saying … that? A. I certainly do, I can tell you exactly where it was."
This evidence was immediately followed up in re-examination, but not greatly clarified: "Q. Just dealing with that last couple of questions… - where you said you were running out of time. A. I said 'Our time's up - our - our 12 months is up.' I said 'Our option' - which I gathered we had the option which was why we didn't take a 12 month contract, we did - did our deed of option which I now realise there was no option to it, it was a 12 months contract, and even that day Bob [Murrell] said 'There's no option' to me. Not to that word, he didn't say 'There is no option to extend' and with Ms Darcy and I, that's when we actually - I said - I made another circumstances to sell other properties so we could - and I said I would - I would be fairly confident we'd settle in four months which I think they rejected back to Ms Darcy and me - myself but I - and I got the letter back, this other option are these and I just - I'm not going to lose any more money."
In his statement Mr Bradbury said that Mr Murrell did not get back to him, but that, on 17 September 2010, he received a letter from Mr Murrell's wife, Mandy Murrell, who was a vendor and the solicitor acting for the vendors, addressed to the appellant, stating that the vendors would enter into a new option agreement for a period of three months, expiring on 18 December 2010, with contracts "to be exchanged and settled by 18th January 2011", the payment of a further option fee of $20,000 and an increased occupation fee of $850 per week. [16] The respondents did not accept that offer. Mr Bradbury stated: [17] "The terms of the proposed further Option Agreement were not acceptable to Narelle and I. We were not prepared to pay another Option Fee which (I now understood) we could lose if we hadn't sold Yass by 18 January 2011. We were not prepared to pay $850 per week rent. That figure was, I believe, extortionate."
According to Mr Bradbury's evidence, the option fee already paid, together with the amount spent on the property was some $90,000, without interest. The extra rental payment ($500 per week) would have been in the order of $8,000. From these facts it could be inferred that he considered the chance of selling Yass by 18 January 2011 to be remote. On this approach, it might also be inferred that the likelihood of the property at Yass selling within the six month extension, which would have expired on 18 March 2011, might also have been low.
The Bradburys gave no evidence as to the indebtedness of the Yass property, nor as to their ability to raise funds by way of mortgage. They appear to have approached the purchase at Port Macquarie on the basis that they could only complete if the Yass property sold. Accordingly, at least on the evidence, the negligence which resulted in the Bradburys believing they had a further six months to settle the purchase would appear to have been a lost opportunity, arguably of relatively limited value.
There is a qualification to this analysis derived from the expert opinion evidence of Mr Bluth. Mr Bluth's advice as to what should have happened in September 2010 included the following: "34. The actual positive covenant created upon registration of the plan required the establishment and maintenance of a 10,000 litre water supply tank and unobstructive [sic] access to within six metres of a dedicated water supply for category 1 heavy bushfire tanker would in my view be seen by the Court as a significant impediment on the land to constitute a defect in title and allow the Plaintiffs as purchasers to rescind. … 36. It is common practice that a practitioner in the position of the defendant would have further investigated the matter and ascertained that the plan was registered and a positive covenant was also created to the potential detriment of the plaintiffs. Therefore, upon exercise of the option to purchase by the plaintiffs, they would become the purchasers under the contract. However, the failure to act by recommending the exercise of the option denied the plaintiffs the opportunity to rescind the contract and have the deposit monies refunded. 37. A reasonably competent and careful practitioner in the position of acting for the plaintiffs would have in my opinion: (a) negotiated a longer time for completion of the purchase to coincide with a sale at Yass; (b) advised the plaintiffs of the risk of entering into a contract for purchase without finance arranged; (c) advised the plaintiffs of the risk of forfeiting the option fee if they were not going to exercise the option to purchaser [sic]; (d) have sought other opinions or advice at the time of exercise of the option; (e) have arranged for the plaintiffs to exercise the option to purchase. This required no further moneys, but would have put the plaintiffs in a far stronger position to delay settlement if necessary; (f) having exercised the option and the plaintiffs becoming purchasers advised the plaintiffs if they did not wish to proceed with the purchase to rescind and claim the deposit back."
Mr Bluth's evidence may be accepted in its entirety - it was not challenged - although it was arguably incomplete. However, he was concerned with the advice which ought reasonably to have been given to the respondents. He did not, understandably, purport to advise on the likelihood of particular advice being accepted, nor on the consequences of its acceptance or non-acceptance. Although, in the course of argument, counsel for the respondents contended that, had they exchanged contracts, they would then have had a "right" to rescind and recover the full amount of the deposit, Mr Bluth's evidence did not establish that as an inevitable outcome. Had there been any doubt as to the likely success of a purported rescission, or of proceedings under s 55 of the Conveyancing Act 1919 (NSW) to recover the deposit, there would then have been doubt as to whether the respondents would have taken such steps and, if they did, whether they would have succeeded. (Possible omissions from the advice Mr Bluth said should have been given were: (a) any assessment of the risk that a court would not accept his view, expressed at par 34; (b) the possible exposure to a damages claim if contracts were exchanged and settlement did not take place; (c) the discretionary nature of the court's power under s 55; (d) the potential costs if litigation eventuated, and (e) the general vicissitudes of litigation.)
Had the counter-factual hypothesis been addressed, it is almost inevitable that the court would have concluded that what was lost was not the full amount of the deposit (plus interest), as the respondents contended, but the loss of an opportunity. The value of that opportunity was not assessed, nor could it be without findings of fact as to the likely consequences of the respondents being given the advice which a conveyancer exercising reasonable care, skill and judgment should have given. That exercise cannot be undertaken on the transcript, where critical answers reveal ambivalence and ambiguity and a degree of inconsistency between them.

Conclusions

Because it was ultimately common ground that the trial judge did not make critical findings of fact relating to causation, it is not necessary to explore in detail the reasons which were provided. The judgment in favour of the respondents must be set aside and, subject to appropriate orders with respect to mediation, there must be a retrial. The retrial should not extend to the rejected claim for expenditure on improvements
Where the court directs mediation, it is sound practice to require that it take place expeditiously. The rules provide that mediation should be completed within 28 days (presumably from the date of the order); [18] a period of six weeks was allowed in Mouti v Nguyen. [19] However, given the time of year at which this judgment will be delivered, together with the degree of expedition obtained in this Court, it should be recognised that mediation may not be possible before the long vacation. As, on any view, a retrial (if required) will not occur until next year, some flexibility should be allowed with respect to the timing of the mediation. The Court will refer the proceedings to a Registrar to conduct the mediation.
The Court should make the following orders: 1. Grant the applicant leave to appeal from the judgment and orders in the District Court. 2. Allow the appeal and set aside orders (1) and (2) entered on 24 February 2015 and order (1) entered on 26 March 2015. 3. Refer the proceedings to a Registrar of the Court to conduct a mediation at a time to be fixed by the Principal Registrar. 4. Direct that the mediation occur, if possible, by 23 December 2015 and no later than 29 January 2016. 5. In the event that no settlement has been reached by 30 January 2016, remit the matter to the District Court for a retrial, limited to the claim for damages calculated by reference to the forfeited option fee and interest thereon. 6. Direct that the costs of the first trial be dealt with in the course of the mediation and otherwise be in the discretion of the trial judge on a retrial. 7. Order that the respondents pay the appellant's costs in this Court. 8. Grant the respondents a certificate under the Suitors' Fund Act 1951 (NSW).
LEEMING JA: I agree with Basten JA.
EMMETT AJA: This appeal is concerned with a deed whereby the respondents, Mr Wayne Bradbury and Mrs Narelle Bradbury, were granted the option to purchase a property at Telegraph Point in New South Wales. The appellant, North Coast Conveyancing Pty Ltd (North Coast), acted for Mr and Mrs Bradbury in connection with the grant of the option. The option was not exercised within the time limited by the grant and Mr and Mrs Bradbury lost the option fee of $66,750 that they paid for the grant of the option. They sued North Coast in the District Court alleging negligence in the performance of the retainer to act in connection with the option and the proposed purchase. A judge of the District Court gave judgment for Mr and Mrs Bradbury against North Coast in the amount of $66,750 plus interest.
Breach of duty was ultimately conceded by North Coast in two respects. It was accepted that North Coast was in breach of its retainer in failing to give adequate advice as to the term of the option. In addition, although Mr and Mrs Bradbury were unable to settle the purchase of the property by the time the option was required to be exercised, they should have been advised to exercise the option. Adopting that course would have placed them in a more favourable position to negotiate an extended time for settlement. That may also have given them the opportunity to rescind the contract and recover the option fee. However, it was still necessary for Mr and Mrs Bradbury to prove the loss that was caused by the negligent advice. North Coast contended that the primary judge failed to make relevant findings of fact to support a judgment in favour of Mr and Mrs Bradbury.
I have had the advantage of reading in draft form the proposed reasons of Basten JA for concluding that the appeal should be allowed and that there should be a retrial. I agree with the orders proposed by his Honour for the reasons proposed.

Endnotes

See District Court Act 1973 (NSW), s 127(2)(c).
Civil Procedure Act 2005 (NSW), Pt 4; Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), Pt 20, Div 1.
Civil Liability Act 2002 (NSW), s 5E.
CA Tcpt, 6/10/15, p 27(28).
Statement, 30 September 2013, par 54.
Statement, pars 66 and 67.
Statement, pars 89 and 90.
Statement, 30 September 2013, pars 33 and 34.
Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18 at [16] (Gleeson CJ); [26]-[27] (McHugh J); [221] (Callinan J).
Rosenberg at [45] (McHugh J).
Tcpt, 08/11/13, pp 47-48.
Tcpt, p 63.
Tcpt, 08/11/13, p 88(6).
Tcpt, pp 90-91.
Tcpt, p 74(16).
Statement, par 79.
Statement, par 80.
UCPR, r 20.5.
[2015] NSWCA 93. 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: 23 November 2015

Suitors' Fund Act 1951(NSW)

See District Court Act 1973(NSW)

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