Plaintiff v Defendant

2 At the time of the sale, the directors of Morerand, Frank Ernest William Levy, Leon Moscovitch and Angelo Tesoriero, were the executors of the will of Mr Rand and the trustees of his estate.[1] Mr Levy, who was Mr Rand's long-time solicitor, had been, together with Mr Rand, a director of Morerand since its incorporation on 17 June 1994. Mr Moscovitch and Mr Tesoriero became directors of Morerand on 16 November 1997 after Mr Rand's death.

3 Some time after the sale, on 3 June 2004, this proceeding was commenced by the plaintiff, Southlink Holdings Pty Ltd ("Southlink"), alleging that the sale of the subject land was in breach of a joint venture agreement entered into between it and Morerand on 16 February 1995. Southlink, which was previously named Seventy-Seventh Street Pty Ltd, is the trustee of the Failsafe Trust and was controlled by its director, Paul Henry Harpur. Mr Harpur was qualified as a solicitor and had extensive experience in property development. It was said on behalf of Southlink that, under this agreement, the venturers agreed that the subject land would be held by Morerand pending its rezoning for residential purposes and then sold with the net profit to be distributed equally between them.

4 The timing and circumstances attending the issue of the writ caused the directors of Morerand to look upon the claim with some suspicion. These circumstances included the fact that, after the death of Mr Rand, there had been substantial litigation concerning his will and estate involving Mr Harpur and persons associated with him and that the alleged joint venture had not previously been asserted.

5 Judges have long counselled caution about claims made against a deceased person where this depends upon the evidence of statements made by that person. In Plunkett v Bull[2] Isaacs J said that there was no rule requiring corroboration of such statements and that such a claim should not be treated as prima facie fraudulent or even that it ought to be looked upon with suspicion; it should nevertheless be scrutinised carefully. I mention this at the outset because, although there was some documentary evidence which confirms the existence of the joint venture arrangement described by Mr Harpur, it is very sketchy and much of the plaintiff's case depended upon oral statements in very general terms which were attributed to the late Mr Rand.

6 Up to the date of the suggested joint venture agreement, the subject land was owned by Warman Kenny Pty Ltd, a company controlled by Mr Harpur. This had been the case since 1986 when Warman Kenny purchased the subject land for $105,000. The subject land was then zoned as part of Corridor A (C1) under the Melbourne and Metropolitan Planning Scheme. Part of the subject land was reserved for proposed public purposes and part for road widening, but these reservations are of no consequence for present purposes. This zoning was described by Mr Harpur as restricting the permitted uses to rural activities.

7 During 1989 the City of Frankston established its own planning scheme under which the subject land was effectively in a Rural 2 zone. This was a zone directed to preserving the rural landscape and to provide a buffer between Frankston urban areas and the Baxter township. Mr Harpur said that his purpose in purchasing the subject land was to add value to it and then to resell it at a profit. His expectation was that he would have the subject land rezoned to a higher use or would obtain a planning permit so as to increase its value.

8 Geographically, the subject land is situated in an area known by planners as the Baxter Triangle. This area which is approximately a right-angle triangle is bounded by the Baxter-Tooradin Road on the south, Fultons Drive on the west and Golf Links Road running in a northwest/southeast direction as the hypotenuse joining those two roads. The subject land is at the south-west corner of the area which corner constitutes the right angle to the triangle. An important feature of the vicinity of the subject land is the presence of what is called "the escarpment" to the north running more or less parallel to Golf Links road. This is more a modest hill rather then a true escarpment, but it was seen as a natural geographical feature marking the southern end of the urban area and the commencement of the rural land of the Mooroduc Plain and the Mornington Peninsula beyond it. Another important feature from a planning point of view is the reservation of a swathe of land to the west of Fultons Drive and parallel to it for the proposed Peninsula Link Freeway running through the Frankston area to the Mornington Peninsula. Moreover the township of Baxter represented a planning anomaly for it comprised a cluster of commercial and residential properties east of the Baxter-Tooradin Road near the railway station at the south-western corner of the triangle, and, at the eastern corner of the triangle, an area of residential development called East Baxter.

9 Mr Harpur, during the next nine years, made efforts to have the zoning of the subject land changed to permit residential use. For this purpose he made approaches to the planning authorities supported by submissions prepared by consultants engaged by him or his company. It is not necessary that I detail these efforts save only to record that, following a meeting held with the Minister for Planning in early 1994, the Minister on 11 July 1994 wrote to the responsible planning authority, the City of Frankston, recommending that the city undertake a review to determine whether further residential development in the Baxter area was appropriate. This Baxter Housing Review was to be funded in part by the State Government and the City of Frankston and in part by owners of the land in the area to be considered. This was seen by Mr Harpur as a very promising sign that his project might be successful.

10 Economic considerations intrude at this point. Mr Harpur told me that, at this time, in late 1994, he was being pressed by his bankers to reduce his indebtedness. He had agreed to sell the subject land, and for this purpose it was then being offered for sale by auction. He nevertheless remained optimistic that a profit was to be had upon its being rezoned. He said that he spoke to a Mr Roper who was representing his bank and that he was told by Mr Roper that the bank would be content if Mr Harpur could sell the subject land to a friend for $175,000.

11 Now it is necessary to step back in time to 1988. It was then that Mr Harpur and his family met Mr Rand who was a wealthy bachelor in his mid-60s. Mr Harpur and his wife, Pamela Faye Rand Harpur, had met him when they rented from him his substantial beach house at Sorrento. Thereafter he treated the Harpurs as family. He was particularly fond of Mrs Harpur and of one of her three sons. He referred to them as niece and nephew and gave the family free access to the Sorrento property and also to his home in South Yarra. They, for their part, treated him as a close friend and even adopted his name, Rand, as a given name.

12 The two men had, in the months prior to February 1995, discussions about Mr Harpur's financial position and his intentions with respect to the Baxter land. On one occasion they drove down to Baxter to inspect the subject land. There they discussed the prospects of having the subject land rezoned and the profit which this might produce. This was, of course, Mr Harpur's account of the visit. He said that Mr Rand was quite excited about the project and at the expectation of profit. Mr Harpur said, too, that both the men discussed it as a long term project. In his evidence in chief, Mr Harpur said this of the conversation between him and Mr Rand concerning the joint venture:

So just talking about the development, what was said? --- I can't remember the exact words.

What's the substance of what was said? --- The substance of it was very clear, that Peter would acquire the land and that we would, together, by way of joint venture through our companies, proceed to effect the rezoning of that land and that our major aim would be to add value to that land in whatever way we could, but in planning it's very hard to know what might happen. Peter knew that at that stage I was short of cash flow so ---

I want to know what was said? --- Okay, sorry. He said he would pay the third party expenses. He would not pay anything for my services.

Just a moment. He would pay? --- The third party expenses which I took to mean consultants, et cetera.

I see. Go on. He would not pay you for your services? --- No. I didn't ask for it, but it was clear that that was not ---

Did he say he wouldn't pay, or did you say you wouldn't accept it, or how was that arrived at. This is the core of the case? --- I can't remember who said what to whom, I just know that we agreed I would not be charging for my services.

Right, and? --- And that the property would be eventually sold.

First of all, how was it to be dealt with? The property is now in your company's name, what was to happen to the property? --- He would acquire it.

I want to know what was said? --- He would acquire it, through his company, Morerand.

Did he say on what terms? --- He was happy on the basis - the contract in existence and $175,000.

How was that figure arrived at? --- It was the figure that National Bank - or sorry, Ferrier Hodgson, wanted to see for that land. They felt it was the fair figure for that land.

Were there any discussions about how the rezoning was going to take place, that is, efforts to rezone? --- I was going to continue to oversee the efforts, that was made very clear, and that Peter already knew that I had consultants engaged and he knew that I had been trying to get it rezoned and we discussed - the reason he knew that is we discussed it. So I was to continue down that process.

And he would, however, pick up the cost of the consultants? --- Correct.

Not for the venture, but him? --- He would pay those, yes.

Or his company, presumably? --- Yes, and I would do my part of it.

Was there anything said in relation to, upon the sale, as to what parties or what expenses would be recouped by various parties? --- Yes. The situation on that was that we would be working out a profit at the end of the day and that we would split the proceeds. Profit would include the - sorry, the expenses would include the cost of the land. The expenses would also include any other payments that had been made on behalf of the project, and that was it.[3]

13 They then returned to Mr Rand's home where they continued this conversation in his sunroom. Mr Harpur said that they discussed other matters but that the conversation returned to the Baxter project. He described the discussion between him and Mr Rand in these terms:

Then we got back to Baxter. The precise words I can't remember but what did happen is he said, "Paul, we should put this into writing because I'm going away and you should be protected." I said, "All right Peter, I will put it down." So I then - having said that to him, I sat down again in his sunroom and I wrote out the page that's dated 17 February 1995 in my handwriting and I gave it to Peter and Peter looked at it and he said, "This is a bit too confusing" so he said, "I will" - he turned the page over, he said, "We will just do this", and so he wrote that out in his print and in his hand and signed it. So that was what occurred.[4]

14 The page on which the men wrote is in evidence. On the one side there appears in Mr Harpur's handwriting the following:

I the undersigned Peter Rand hereby acknowledge that myself or nominee have purchased 20 acres of land situated at the corner of Baxter Tooradin and Fultons Drive Baxter on behalf of myself and Seventy-Seventh Street Pty Ltd as trustee of the Failsafe Trust and that on sale of the land all profits and or losses shall be shared equally between myself or nominee and Seventy-Seventh Street Pty Ltd.

Dated this 17th day of February 1995.

Thereafter follows a place for Mr Rand to sign. But there is no signature. On the reverse of the page there appears in Mr Rand's handwriting the following:

16.2.95

It is hereby agreed that the net profit of the project is shared equally between Morerand Pty Ltd and Seventy Seventh Street Pty Ltd.

Then follows Mr Rand's signature. Mr Harpur said that the contracts of sale which had been prepared for an auction of the land were also executed at this time. It is dated 16 February 1995.

15 Mr Harpur was pressed as to the details of these conversations. He first said that the conversations in the sunroom and the signing of the document occurred on the day of the visit to Baxter. Then he said that the period of "maybe a month" elapsed between the time he first mentioned the matter and the date the documents were signed and that the project was discussed with Mr Rand on a number of occasions before the sunroom meeting.

16 Mr Rand's version of these discussions is, of course, not before me. What is known is that he took a signed contract to his solicitor, Mr Levy, with instructions to perform the necessary conveyancing work. Mr Levy's recollection of what he was told by his client was that he (Rand) was purchasing the subject land and that he did so at the urging of Mrs Harpur who told him that the subject land would otherwise be sold up by the bank and that, if an insufficient price was obtained, her husband would be made bankrupt. In response to a suggestion by Mr Levy that he obtain a valuation, Mr Rand rejected this advice saying that Mrs Harpur had pleaded with him to buy the subject land. Mr Levy said also that Mr Rand instructed him that Mr Harpur had said to him that if he purchased the subject land he (Harpur) would do the necessary work to have the subject land rezoned for residential subdivision. According to Mr Levy, nothing was said by Mr Rand about a joint venture or about any profit sharing arrangement.

17 Mrs Harpur gave evidence denying that she had had any involvement in dealings with Mr Rand leading to the purchase by Morerand.

18 The reliability of Mr Levy's account of these instructions was challenged. He had no notes, as the file had been destroyed in the ordinary course, some seven years after the transaction was completed. He did not have a high opinion of Mr Harpur and it was clear that the disputations between him and Mr Harpur following Mr Rand's death contributed to an antipathetic attitude between the two men.

19 Counsel for Morerand was critical of the reliability of Mr Harpur's evidence. Although he did not submit that he was deliberately untruthful. He drew my attention to the uncertainty of Mr Harpur's evidence and to the discrepancies between his accounts of the suggested agreement in the pleadings, in his outline of evidence, in his evidence in chief and under cross examination. He reminded me, too, that Mr Harpur had suffered a stroke in 1999 and that this might have affected his recollection of events.

20 I was pressed, too, with the surprising fact that it was not until 2004, nearly 10 years after the agreement was made, that Mr Harpur first raised it with the executors of Mr Rand's estate. This is surprising because he was aware that the subject land had been sold some three years before without any accounting of the profit to which he now claims to be entitled. This is surprising also because he was very ready to press his other claims against the estate in the years following 1997. The significance of all of this is diminished, in the context of my task of determining the existence and terms of the joint venture agreement, by the existence of the handwritten document. This shows that the transaction of February 1995 was something more than a simple sale of land.

21 Finally, there was evidence that Mr Rand was a manipulative man who used his wealth to cause others to do his bidding and to perform services for him. Further, he was careful, even mean, with his money and he liked to make a profit where this was possible. I accept all of this and also that he was very fond of Mrs Harpur and at least one of her sons. It may be that he was less trusting and fond of Mr Harpur for it appears that he declined to participate in any of a number of commercial ventures which Mr Harpur had proposed prior to 1995. With respect to at least some of these, Mr Rand's decision might have been influenced by adverse advice from Mr Levy or others which recommended against them.

22 In approaching the evidence of all of these witnesses about the conversations with Mr Rand, I am conscious that the events occurred over 15 years ago and that no contemporaneous note has been retained of them. I observed the witnesses as they gave their evidence. My impression is that each of them was doing his or her best to recollect the events which they described. They were honest witnesses. This is not, however, to say that their evidence was reliable. It was apparent that the passage of time and subsequent events had, in some respects eroded or tended to distort their recollections.

23 Having scrutinised all of the evidence and considered what was contended for by the parties, I am satisfied that Mr Harpur's account of the conversation which I have set out above is reliable. I accept that he and Mr Rand did enter into an agreement more or less in the terms described by Mr Harpur. It was agreed that Mr Rand, through his company, Morerand, would buy the subject land from Warman Kenny for $175,000 with a view to its being rezoned to permit residential development and that it then be sold. It was agreed that Mr Rand would contribute the purchase price of $175,000 and that Mr Harpur would contribute his expertise and efforts towards the rezoning. It was agreed that third party expenses such as consultants' fees should be treated as costs of the venture and that they be borne in the first instance by Mr Rand or his company. It was agreed that upon the sale of the subject land the net profit, that is the proceeds of sale less the $175,000 purchase price and the third party expenses, would be shared equally between the venturers. These were matters which I find were specifically agreed to in discussions between the two men and in the note signed by Mr Rand.

24 I find, too, that at the time of this agreement the two men were optimistic that the project would be of relatively short duration. The Minister for Planning appeared to be supportive and the Frankston council was prepared to contribute to a housing review. Nevertheless, as realists, they accepted that the rezoning might take some time.

25 Counsel for Southlink contended in addition for a number of implied terms which were not altogether identical with those set out in the statement of claim. The two suggested terms which are relevant for my purposes are the following:

• Southlink would continue its efforts at rezoning and Morerand would continue to hold the subject land unless and until the parties agreed to sell it.
• If the subject land had not been sold at the end of a reasonable period, the parties would sell the subject land, recoup their expenses and split the profits.

These were said to be necessary for the efficacy of the agreement.

26 Counsel for Morerand contended for terms dealing with the event that the subject land was not rezoned within a reasonable time. He proposed the following implied terms:

• in the event that the subject land was not rezoned within a reasonable time the agreement would stand abandoned;[5]

• alternatively, the agreement was subject to a condition subsequent that, if the subject land was not, forthwith or within a reasonable time, rezoned to residential use and the subject land sold at a net profit, the joint venture agreement would be discharged.[6]

These terms, too, were said to be implied to give business efficacy to the agreement.

27 The background against which these competing contentions must be considered includes the express terms which the negotiators discussed and agreed. I accept too, that despite their confidence in the outcome, the success of the rezoning enterprise would have been seen by a reasonable bystander as being by no means a certainty and that it might have taken some years to achieve.

28 There are four requirements to be satisfied for the implication of terms such as those proposed in this case:

(ii) The term must be necessary to give business efficacy to the contract;

(iv) The term must be capable of clear expression; and

(v) The term must not contradict any express term of the contract.[7]

It is convenient to consider first, the term proposed on behalf of Southlink that the land be not sold. I would expect that, if asked, the negotiators would have said that they expected the land to be held by Morerand so long as the project was on foot and the rezoning had not been achieved. It would, of course, be possible for the venture to have been continued with another participant if Morerand had sold the land to that person. There was, however, a non-commercial bond between Mr Harpur and Mr Rand, so that this would be unlikely without the concurrence of the continuing venturer. On the other hand, I would accept that the agreement was not an open-ended one. If Mr Harpur's efforts to obtain a rezoning were unsuccessful, it could not be expected that the parties would have intended that Morerand be required to hold the land and pay the outgoings indefinitely. Again, I would suppose that the bystander would infer that the two friends would agree to terminate the project in such an event, if after a reasonable time, there was no real prospect of a successful outcome and that, absent such agreement, the joint venture agreement would terminate at the expiry of this reasonable time, perhaps upon the giving of notice.

29 I conclude, therefore, that there should be implied in the joint venture agreement the following terms:

(1) That, without the agreement of the other party, neither party would assign its interest in the joint venture or, in the case of Morerand, sell the land, so long as the joint venture remained on foot.

(2) The joint venture agreement might be terminated by either party if, after a reasonable time, the residential rezoning had not been achieved and there was no reasonable prospect of this being achieved in the near future. I would not accept as necessary or reasonable that the agreement should come to an end, as it were, automatically upon the happening of events such as those in the terms proposed by Morerand. This would be productive of uncertainty and would carry the prospect of disputation. This is particularly the case since such a term would, in all likelihood, be operative only where there was no agreement between the venturers as to the prospects of the project. I would therefore include in this term a requirement that the exiting party give reasonable notice of termination.

30 The other suggested implied terms concerned the events which should follow such termination. On behalf of Southlink, it was said that the term to be implied was that the land would be sold and the net profit or net loss distributed equally. It was said that this reflected the thinking of the parties at the time of contract. Moreover, it was an equitable outcome.

31 The alternatives offered by Morerand would have the consequence that the contract of sale to Morerand would become, as it were, unconditional in the sense that the joint venture agreement of which it was an integral part would disappear, leaving Morerand free to deal with the land as it pleased.

32 Again, I adopt the position of the bystander knowing the facts and objectives which the negotiators shared. In particular, I am mindful that each of them was to make a contribution to the venture. Mr Harpur was to contribute his expertise and efforts. Having regard to the fact that he was the person who was to perform the only activity involved in the project, namely, that required for the rezoning, this might have been seen as a significant contribution and one which would have been wasted if the joint venture were terminated without the rezoning. The contribution of Morerand was essentially a financial one: it would contribute the cost, the holding costs and the third party expenses of the venture. These, too, would be lost in the event of termination without rezoning. The only prospect for either venturer in that event would be that the land would increase or decrease in value without a change in the zoning. It is difficult to suppose that the negotiators at the time of agreement would have thought, if they had turned their minds to it, that this benefit or disbenefit should fall entirely upon Morerand.

33 I therefore reject the terms proposed by Morerand as being unreasonable and inequitable; they are not obvious and certainly not necessary in order to give business efficacy to the joint venture agreement. To my mind, the term proposed by Southlink should be accepted. It has all of the necessary characteristics which the others lack and it reflects the thinking of the men as is recorded in the document which Mr Rand signed.

34 Again, I would expect that, if the negotiators turned their mind to it, they would have contemplated that, in the event of termination without rezoning, they would either agree the value of the land or sell it so as to fix the value for the purposes of winding up the joint venture. The net profit or loss would then be determined in accordance with the terms of the joint venture as if the land had been sold following a rezoning.

35 I conclude, therefore, that the joint venture contains the following third implied term:

(3) In the event the joint venture is terminated without the subject land having been rezoned, the parties would share equally the profit or loss of the project. The net profit or loss would be the sum arrived at after deducting from the proceeds of sale of the subject land or its agreed value, first, the sum of $175,000 paid by Morerand upon the purchase and the third party costs of the attempts to achieve the rezoning.

36 In such an event too, Morerand would recoup the $175,000 and each party would receive any third party costs paid by it.

37 Next, on behalf of Morerand, it was contended that, even if the agreement for which Southlink contended were accepted, it should not be given effect to for the following reasons:

(a) The agreement was not enforceable because there was no intention to enter into a legal relationship.[8]

(b) The terms of the agreement were uncertain.[9]

(c) The agreement is void or unenforceable as a restraint upon the alienation of land.[10]

(d) The agreement was abandoned or discharged when rezoning was not achieved within a reasonable time.[11]

(e) That the agreement was abandoned or discharged sometime between mid 1998 and December 1999 by reason of Southlink's non-performance. [12]

38 The contention that the parties did not intend to enter into a legal relationship depends upon the evidence, which I accept, that there was an unusually close relationship between the Harpurs and Mr Rand. When asked, Mr Harpur said quite frankly that he would not have sued if his friend had breached the agreement and that he did not expect that Mr Rand or his company would sue in the event of breach by him. It is supported, too, by the evidence of Mr Levy that Mr Rand said that he made the purchase as a favour to Mrs Harpur.

39 I accept that the intention of Mr Rand in entering into the purchase was to assist his friend. Nevertheless, there was a commercial purpose in the transaction; there was a profit to be had and Mr Rand was aware of this. There was no evidence that the parties spoke of the agreement as being of a domestic or non-binding nature. Mr Rand told Mr Levy that he expected a profit. He later told those present at a dinner party described by Mrs Harpur that his share in this profit was to go to his lover, Douglas Claiborne, who was then present. He also told Peter Noel Norgrove, a property consultant, in 1994 that he expected to make a profit from rezoning the subject land and to share that profit with Mr Harpur. These statements not only confirm the existence of the joint venture agreement, they also suggest that Mr Rand saw it as a serious commercial commitment. He evinced an interest in the progress which Mr Harpur was making in his efforts to achieve the rezoning. He expected his friend to honour his side of the bargain. The question whether the negotiating parties intended to enter into an agreement binding in law is one to be determined by an objective assessment of what they said and did at the time the agreement was entered into. I am not concerned with any private reservation which one of the negotiators may have held.[13] I am satisfied that the parties intended to enter into an agreement binding in law. This is apparent from the terms in which they discussed the agreement. It is put beyond argument by the circumstances attending the recording of their agreement in the document of 16 February 1995 and in the document itself.

40 I will not dwell long on the contention put on behalf of Morerand that the agreement was void for uncertainty. I approach this aspect with a predisposition to uphold the commercial bargain which the parties had made. It was contended that it was uncertain what the project was to achieve. The evidence, however, makes it clear that the parties intended to upgrade the value of the subject land by achieving a rezoning. The rezoning would permit some kind of residential development so that a developer would be prepared to pay a premium for this, greater than the purchase price of $175,000.

41 It was then said that the event upon which the subject land was to be sold was uncertain. The words used by the negotiators were that this should be when the value of the land was increased by the rezoning. It is true that Mr Harpur did mention the prospect that this might be achieved by the obtaining of a permit for residential development. Nevertheless, I am satisfied that the project was to obtain rezoning and that when that occurred or when after a reasonable time, it had not occurred, the subject land would be sold. I am not troubled that the terms of this sale were not spelt out. In the event of disagreement as to this the law would imply a term as to the appropriate manner of sale which is reasonable in the circumstances.

42 I conclude that the agreement is not unenforceable or void for uncertainty.

43 The argument based upon the contention that the joint venture agreement is a fetter upon alienation of the land must fail. It is true that, under its terms, Morerand could not sell the subject land so long as the project was on foot. The restraint was, therefore, collateral to the principal objective of the parties that the subject land be rezoned. Morerand was free to dispose of the subject land under the terms of the agreement when the objective of the venture was achieved or after the expiry of a reasonable time when the objective was not achieved. This is not a restraint which offends public policy.

44 A contractual restraint on the alienation of property may be void and unenforceable.[14] Such a restraint, however, will not be struck down if it secures a collateral benefit.[15] In the present case, the restraint is clearly directed to what can be seen as a collateral benefit to the parties, namely, the opportunity to have the land rezoned and to receive the profits that may flow from that rezoning. Further, given my finding with respect to the third of the implied terms,[16] the restraint is not open-ended as Counsel for Morerand submitted; it is subject to a temporal limitation in that it might be terminated by either party if, after a reasonable time, the residential rezoning had not been achieved and there was no reasonable prospect of it being achieved in the near future. In these circumstances, the argument that the joint venture agreement is unenforceable as a fetter upon alienation of the land must be rejected.

45 These arguments depended upon the insertion into the joint venture agreement of terms that, in the event that the subject land was not rezoned within a reasonable time, the agreement would stand abandoned or the contract would be discharged.[17] I have found that these were not terms of the joint venture agreement; these arguments must therefore be rejected.[18]

46 In any event, I am not persuaded that, as at December 1999, a reasonable time had expired. At that time, rezoning had not been achieved but I accept that it would have been reasonable for the parties to have waited longer noting that pressure for residential development would build up to a point where a rezoning application might have a better chance. I shall return to this in a little more detail when considering the town planning position at that time, in the context of the damages question.

47 The fifth and final point taken on behalf of Morerand was that the agreement was abandoned because, at no time after the death of Mr Rand on 7 October 1997 and prior to the commencement of this proceeding in 2004 did Southlink perform the agreement.[19]

48 I can say immediately that the evidence does not support this allegation as it is expressed in the pleading. On any view, Mr Harpur pursued the venture until about mid-1998 with some energy. It is not necessary that I outline these efforts because it was contended that abandonment occurred at or about this time and, alternatively, in September 1999 when Morerand decided to sell the subject land. The evidence showed that, in 1997, submissions were addressed to the Mornington Peninsula Planning Scheme Review Committee which was then preparing a new planning scheme for the Shire under the New Format Planning Procedure Processes. The submissions were addressed to it by Alan Farquhar who had been Mr Harpur's town planning consultant from the early days when he was concerned with the land and by Ron Mason who was a town planner with the Westernport Development Corporation and later with Connell Wagner. In early 1998, too, they made submissions to the review panel appointed by the Minister for Planning. In its report of 1 April 1998 the panel recommended against residential rezoning of land in the Baxter triangle including the subject land. This was seen as a set-back for Mr Harpur's efforts and the available options were discussed at a two hour meeting held at Como on 3 June 1998 between him, the Honourable Gary Rowe the Member for Cranbourne, Mr Farquhar and Mr Mason.

49 This was, for practical purposes, the last significant activity undertaken by Mr Harpur in pursuance of the project. Mr Farquhar said that, in a formal sense, this was his last involvement in the process. In 1998 his work commitments elsewhere meant that he was unable to act further on the Baxter project. Mr Harpur in his answer to interrogatory 11 said that he engaged Connell Wagner, presumably through Mr Mason, to undertake the lobbying process and that it did so until about February 1999. Mr Mason was not called to give evidence. No Connell Wagner account for work in this period was produced. In his answer to interrogatory 10, Mr Harpur said only that the application to rezone was "under consideration by local and State authorities".

50 When asked what he did after June 1998 to progress the rezoning project, Mr Harpur said, first, that he was hoping that events would fall his way. He then said that he did not pursue the matters with the planning authorities; he looked into those matters which he saw as important for the future prosecution of his project. The first of these matters was the escarpment. He looked at the geographical nature and height of the escarpment which was seen as the natural border for residential development to the north of the Baxter triangle. Second, he made enquiries as to the location and timing for the construction of the freeway as proposed to the west of the Baxter triangle. Third, he looked into the availability of services for the land, but he acknowledged that this work had already been done by 1998. But when these matters were explored, none of them amounted to very much.

51 The question of abandonment also involves a consideration of the role of Morerand at this time. The short answer to this is that it continued to do nothing other than, presumably, pay the outgoings in respect of the subject land as they fell due. The subject land was not let. It will be recalled that, at the first time of the suggested abandonment, in June 1998, Mr Rand had died some eight months previously. Mr Rand had said nothing to Mr Levy, Mr Moscovitch or Mr Tesoriero about the joint venture and they were entirely ignorant of its existence, save that Mr Levy had been told in February 1995 that Mr Harpur would be doing the necessary work to have the land rezoned. In these circumstances, it might have been expected that some enquiry would have been made of Mr Harpur as to his progress in this endeavour. But Mr Harpur was, by late 1997, an adversary of the executors of Mr Rand's will and it may be that communication between him and the executors was difficult.

52 Against this factual background, I turn to the legal principles applicable to this issue. It is well established that parties to a contract may, by their conduct, evince an intention to abandon it.[20] This conduct will usually be conduct which is inconsistent with the continuing existence of the contract, as was the case in DTR Nominees Pty Ltd v Mona Homes Pty Ltd.[21] The intention may also be evinced by inactivity. In such a case, the inactivity of the parties must produce a clear inference that both parties do not wish to proceed or that one party does not wish to proceed and the other party consents to that situation.[22]

53 In this case, the inactivity of Mr Harpur after June 1998 does not give rise to such an inference. While it may be true that there were further things he might have done by way of representations and submissions, his relative inactivity was not inconsistent with his non-abandonment of the project; it is consistent with the attitude which I have found he had, of waiting a little until pressure from the housing demand from the north, coupled with opportunities offered by the freeway construction, would make his representations less resistible.

54 The inactivity of Morerand presents different difficulties for the abandonment argument. In short, Morerand's role in the venture was a passive one and it continued in this role. It is difficult to say that it consented to or acquiesced in the abandonment by Southlink of a contract of which its directors had no knowledge. And if Morerand is fixed with the knowledge of its deceased director, Mr Rand, the position is no different. I reject the abandonment argument.

55 I conclude from this that the joint venture agreement was on foot in December 1999 when the subject land was sold. The sale was in breach, albeit an unknowing breach, of the agreement so that the liability of Morerand for damages for breach of contract has been made out.

56 Southlink seeks damages. In its statement of claim it specifies three heads: its share of the net profit upon the sale of the subject land, reimbursement of its third party expenses incurred, and its lost opportunity to pursue the project and, having brought it to a successful conclusion, its share of the profit which this would have produced. Although, as will be seen, the first two heads would be included in the third, I shall nevertheless consider each in turn.

57 I will deal first with the third party expenses since these represent a modest sum of $16,834.40 and they pose little difficulty. They are payments made to Westernport Development Council, to Mr Farquhar and to Connell Wagner for work done in 1995, 1996 and 1997. They were paid on various dates between November 1995 and December 1997. Mr Harpur said, and I accept, that they were expended in pursuance in the rezoning of the land. The only issue of substance raised on behalf of Morerand arose from the fact that they were paid, not by Southlink, but by other companies controlled by Mr Harpur, Trans Pacific Holdings Pty Ltd and Flemalle Pty Ltd. The evidence showed that these were merely administration companies within Mr Harpur's group. They made payments on behalf of member companies including Southlink. I am satisfied that Southlink paid these expenses. This head of damage is made out.

58 The subject land was sold on 11 December 1999 and the sale was settled on 10 March 2000. Following adjustments to the price, the amount paid by the purchaser was $220,378.01. There were expenses incurred with the sale of which I would suppose the most substantial would have been the selling agent's commission and the legal costs. The commission charged by the agent is not known. The tax invoice rendered by the solicitor for the vendor shows costs of $1,490.10 were charged so that the net proceeds were $218,887.91.

59 From this sum must be deducted the purchase price of the subject land in 1995. The purchase price was $175,000. The gross profit on the resale is therefore $43,887.91. Next, I deduct the third party expenses of $16,834.40 so that the net profit for distribution between the venturers is $27,053.51. The share of each is therefore $13,526.76.

60 The serious issue of controversy upon the question of damages is Southlink's claim for lost opportunity of earned profit upon the sale following rezoning. It was put on behalf of Southlink that, if the subject land had not been sold in December 1999, Mr Harpur would have pursued the project and that, if these efforts were crowned with success, the land would have a substantial value. It was put that the subject land, when zoned residential, would be worth $3.1 million in 2002. On this basis, it was said that the net profit of the venture would have been $2,908,166, representing $3.1 million less the $175,000 purchase price less the third party expenses of $16,834. It was accepted that this would have to be discounted to allow for the possibility that the venture might be unsuccessful. Counsel for Southlink suggested, on the basis of the evidence of its town planner, Nicholas John Hooper, that, after 1999, the chances of rezoning were "maybe 30 or 40 per cent" and that this should be the discount. At 30 per cent, the expected net profit is $872,450 of which Southlink should receive as its share $436,225 plus reimbursement of the third party expenses of $16,834.

61 On behalf of Morerand it was said that the plaintiff had failed to establish causation or that the suggested opportunity was of no value. In the alternative, it was said that, accepting in broad principle the methodology for calculating the value of the opportunity, its value was negligible or very much smaller than that claimed.

62 I mention before turning to the detail, that the methodology requires me to bring to account the $16,834 third party expenses but not the profit on the 1999 sale. The assessment of the lost opportunity, as the case for Southlink was presented, requires me to assume that the land was not sold in December 1999; rather that it was re-zoned by 2002 and sold in 2003 after the rezoning had been achieved. In the event that this loss is not proved, however, it will be necessary to return to the 1999 sale.

63 Counsel for Morerand said that the question of causation in respect of the loss of opportunity claim was closely connected with the quantification of that claim. This was because, he said, both matters invited consideration of the prospect of Mr Harpur succeeding in having the land rezoned.

64 Putting to one side the unusual case where the prospect is so remote as to be negligible, I do not see this as a causation question. In truth, the question of causation arises from the suggestion that Mr Harpur had, prior to December 1999, abandoned the project or, more correctly, that he no longer entertained any hope of achieving the rezoning. In such a case, if the land had not been sold in December 1999, Mr Harpur would have contented himself with recovering his expenses in due course from the realisation of the land as it stood.

65 In its defence Morerand says, first, that the opportunity to obtain the rezoning was exhausted in August 1995 when the Baxter Housing Review recommended against residential development or in February 1998 when the Mornington Peninsula Planning Scheme Review Committee took the same position, well before the sale. A further allegation which was not pursued at the trial was that any lost opportunity was lost, not by the sale of the land in December 1999, but by the act of the responsible authority having control over the planning.

66 The allegation of Southlink's failure to mitigate its loss[23] was not pressed.

67 The case of Morerand on this point was that Southlink had not demonstrated that, as at December 1999, there was a real or significant chance[24] of the venturers obtaining a rezoning of the land to permit residential development within a reasonable time. It was also said that, from 1999 onwards, the chance of a rezoning was so speculative that the value of the lost opportunity was "negligible" and therefore not compensable.[25]

68 It is first necessary to fix the time at which the assessment is to be made. The general rule is that damages are assessed as at the date of breach that is, at the date of the sale in December 1999.[26] This rule is, however, not inflexible for the Court seeks to place the plaintiff in the position it would have enjoyed had the breach of contract not occurred. This may, as Johnson v Perez[27] demonstrates, require the Court to have regard to certain facts occurring after the assessment date but which reflect the value of the lost opportunity.

69 In this case, Southlink was on 11 December 1999 a joint venturer hoping and perhaps expecting that the attitude of the planning authorities might change so as to permit residential development on the subject land. It was hopeful that, after the happening of this event, the rezoned land might be sold to a developer for a profit. The loss, then, which it suffered was the present value of this profit after allowing for the costs of achieving it. There was little, if any, evidence of the time within which this profit was expected to occur. Mr Harpur had recently recovered from a stroke in August 1999 and Mr Rand had been dead for over two years. Morerand had held the land for nearly five years during which little progress had been achieved. It was said that the prospect at that time of achieving the rezoning was affected by the following considerations, some favourable and some not at all favourable:

(1) The historic resistance of the planning authorities to further residential development in the Baxter triangle;

(2) The existence of the escarpment to the north as a convenient geographical feature to mark the edge of urban growth;

(3) The fact that the Baxter triangle represented a planning anomaly comprising Baxter, a township clustered to the west of the railway station, and Baxter east, another residential area on the Baxter-Tooradin Road at the eastern end of the triangle at the corner of Golf Links Road;

(4) The availability of services for the more intensive usage of the subject land. Their availability was, however, a matter of dispute between Mr Harpur and the planning authorities, Mr Harpur contending that the report of his consultant, KLM Development Consultants, showed that services were available;

(5) The presence in the near vicinity to the west of the railway and commercial development at the north-west corner of Fultons Drive and the Baxter-Tooradin Road. Furthermore, on the south-east corner the presence of the Baxter Inn and a public hall;

(6) The prospect that pressure for an extension of the residential development from the Frankston urban area would increase in the future, making it difficult for the decision maker to resist it; and

(7) The prospect that the Mornington Peninsula Freeway would be constructed with ramps permitting convenient access to the Baxter triangle.

70 While it must be acknowledged that these, and perhaps other considerations, were present in December 1999, the prospect of achieving the rezoning depended not so much upon the weight of the arguments in favour, but rather upon the prospect that those ultimately responsible for making the decision to rezone would accept them in preference to those against the rezoning. This brings into play another important factor, the identity and attitude of the person or persons making the decision and their readiness to make a change. This introduces into the equation personalities and politics which I would include as an eighth consideration. Let me say immediately that no evidence was offered as to this and I express no view upon this aspect of the case. I do note, however, that in Commonwealth v Amann Aviation Pty Ltd[28] it was said that "where compensation is sought in respect of the deprivation of a possible benefit which is dependent upon the unrestricted volition of another it may be impossible to say that any assessable loss results from the breach".[29]

71 Most of these considerations, and their significance are obvious enough. I should, however, say a little more about the planning history of the Baxter triangle. It should first be noted that it was, historically, the responsibility of no less than three planning authorities and this gave rise to anomalies which are now present. It makes little planning sense to have two residential clusters separated by rural land. This said, the planners responsible for zoning, since at least the 1980s, have taken the view that the land between these residential clusters was and should be rural and they have adhered to this view. This adherence has been despite numerous opportunities for change to residential zoning when they were pressed to make this change by or on behalf of Mr Harpur.

72 The first opportunity was in 1988 when the Frankston Planning Scheme was adopted and the land was zoned Rural 2.

73 In 1990, when the Baxter Outline Development Plan was under consideration, Loder and Bayley, a firm of planning consultants, which was retained to advise the local planning authorities and the Department of Planning rejected the extension of residential development in the Baxter Triangle, recommending that urban growth stop at the escarpment.

74 In October 1990 the Frankston Council as responsible authority resolved that the subject land be included in a Rural 1 zone permitting 12 hectare residential lots or one hectare cluster developments. This change, however, was not included in the planning scheme.

75 In April 1991 the panel which conducted hearings into amendment L8 observed that the subject land was outside the amendment but it did not recommend any extension of any residential zoning in the Baxter triangle. As a consequence, the existing Rural 2 zone continued notwithstanding the resolution of the Frankston Council in October 1990. This continued in 1995 when the subject land was excised from the Frankston Planning Scheme and included in the Hastings Planning Scheme. This planning scheme was administered by the newly created Shire of Mornington Peninsula following the municipal amalgamations of late 1994.

76 As I have mentioned,[30] the Minister for Planning in July 1994 threw his weight behind a review of planning for Baxter including the subject land. This review took some time to establish, perhaps due to the significant municipal changes which were then occurring. In any event, another firm of planners, Ratio Planning Consultants was appointed to conduct the Baxter Planning Policy Review. In its May 1996 report, Ratio Consultants resisted an extension of the residential zoning into the Baxter triangle. A reason for this was that the existing infrastructure was at its capacity. The review also confirmed that the escarpment should continue to be the limit of expansion from the north.

77 In December 1996 these issues were overtaken by the implementation of the New Format Planning Scheme process. This required the Shire of Mornington Peninsula to review the existing planning scheme applicable to the subject land. Its proposed planning scheme was put on exhibition in March 1997. Again, Mr Harpur pressed for change to the zoning of the subject land in the consultation process which followed.

78 The proposed Mornington Peninsula Planning Scheme then entered upon an exhaustive consultation programme. The committee of the Shire council in 1997 considered submissions including those put on behalf of Mr Harpur and his company for a rezoning of the subject land. I will not burden this judgment with a detailed account of this process. It is sufficient that I note that Mr Harpur's submissions were supported by the Honourable Gary Rowe, the member for Cranbourne. As part of the process, submissions, including those with respect to the subject land, were received and considered by a committee of council and by a panel appointed by the Minister. On 18 November 1997 the council accepted the panel recommendation that the zoning of the Baxter Triangle land be not changed to residential. The reason given for the recommendation was that the escarpment "acts as a coherent physical boundary" for urban development.

79 The submissions were then referred to a panel and advisory committee to advise the Minister. On 1 April 1998 the panel and advisory committee presented its report. It recommended against an extension of residential development in the Baxter triangle. It confirmed that the existing boundary for urban development along Golf Links Road should be preserved. It did, however, recommend that a development plan overlay be considered for the Baxter area to provide for the implementation of a proposed strategic planning study of that area.[31]

80 It was following this report that the meeting at Como on 3 June 1998 occurred, which was effectively the end of Mr Harpur's active pursuit of the rezoning project. It is clear that the adverse report of the panel was a significant set-back for his project.

81 On 1 December 1998 the Mornington Peninsula Planning Scheme was adopted by council. Included in the council papers was a statement to the effect that the existing limits of residential developments in the Baxter area should be maintained. It rejected the recommendation for the preparation of a development plan overlay or the undertaking of a strategic review of planning affecting the area. The planning scheme then passed to the Minister who approved it on 6 May 1999. This is how things stood at the date of the sale of the subject land in December 1999.

82 Thereafter, things from Mr Harpur's viewpoint deteriorated. In September 2002 the State government introduced a new concept of urban growth boundaries beyond which residential development was not permitted. The subject land was on 24 November 2003 left outside the urban growth boundary.[32] About the same time a planning document entitled "Melbourne 2030" recommended the creation of green wedges to protect non-urban uses. On 15 May 2004 the subject land was wholly included in a green wedge zone.[33] A change to this, I was told, would require the sanction of Parliament itself.

83 The evidence of the planners, which I accept, is that, since the changes of 2002, and even more so since the changes of 2003 and 2004, the prospect of a residential zoning for the subject land decreased significantly. This is not to say that changes might not occur in the future; it is just that the changes are unlikely to occur and will not occur in the near future.

84 According to the planners, there was still between 1999 and 2002 a hope for a rezoning. There were in this period planning amendments to the Mornington Peninsula Planning Scheme which might have affected the subject land: Amendment C18 in December 2001, Amendment VC16 in 2002, Amendment C7 in October 2003 , Amendment C57 in November 2003 and Amendment VC23 in 2004. In many of these amendments, submissions from the public were not sought. It was said by Mr Sabatucci, however, that these amendments presented an opportunity for further representations to be made. But no submission was made. Mr Harpur appeared content to bide his time.

85 Counsel on behalf of Morerand relied upon this planning history in support of his contention that the prospect of rezoning the subject land within a reasonable time in 1999, or at all, was negligible. He argued that, even if the opportunities presented by one of the post-1999 amendments existed, it was not seized upon by Mr Harpur. The answer to this must be that Mr Harpur knew that the land had already been sold, so that there was no purpose in pursuing the project.[34]

86 I return, then, to the question which this proceeding requires me to address. Looking at things as at the date of breach, on 11 December 1999, what was the value of the chance of profit which Morerand's breach of contract denied Southlink?

87 In the course of final address, the position of Southlink crystallised somewhat, so that it was put this way:

• As at 1999 there was open a window of opportunity that the subject land might be rezoned Residential 1. It was accepted by both sides that the alternative, low density residential, was not an available rezoning option. Although this would not have been known at the time, this window would in 2002 close, or effectively close, upon the introduction of the urban growth boundary.
• Perhaps with this in mind, counsel for Southlink put his "best foot forward" case that the window was open between April 1998 and October 2002 and that there was a 50% - 60% chance of the rezoning be achieved in that period, so that the subject land might be sold in 2003 and profit earned.
• The percentage chance of achieving a rezoning during this four year period varied, depending upon when Mr Harper chose to make his move. If he was able to do something before May 1999, his chances of success would be 40% to 50%. If it was after that date, the chances dropped to 30% to 40%.
• Upon rezoning and sale the subject land might be sold for $3.1 million as the valuer Mr Holland opined.
• The net profit for the venture, then, would be this sum less $175,000 being the initial cost of the land and less $16,843 being the third party expenses. This produces a net profit of $2,908,166, assuming no discount for the risk of failure.
• While there was some issue as to the detail and considerable dispute about the figures to be inserted, the logic of this approach was accepted on behalf of Morerand of reasoned way of assessing the value of the lost chance. I will use it as a convenient model.

88 The starting point must be the sale price in 2003. The evidence of Mr Holland as to the value of the subject land, if zoned Residential 1, was $3.1 million being a value of $390,000 per hectare. He arrived at this by having regard to a sale in Ballarto Road, Skye in July 2003 for $578,871 per hectare and a sale in North Road, Langwarrin in February 2003 for $316,284 per hectare. His opinion was not really challenged and I accept it to be correct.

89 This is, of course, the gross selling price. The proceeds of sale must allow for the costs of selling including legal and selling agents costs. These are unknown.

90 There must be deducted from this selling price, too, the costs involved in achieving the rezoning. The witnesses were of opinion that if the rezoning project had any chance of success it would be necessary for a strategic review of the land in the Baxter triangle to be undertaken in the hope that this would recommend residential development. The cost of such a review in 1999 was estimated by Mr Hooper to be about $50,000. He said, however, that this cost might be reduced to about $30,000 if council officers were to carry out much of the work. I adopt the figure of $50,000 as the cost of the review, as there was no evidence to suggest that the council would be prepared to invest money in this project. There would also be costs to be incurred by Southlink in making representations to the persons conducting the review.

91 Doing the best I can on the evidence before me, I would allow for the costs of obtaining the rezoning and those associated with the sale, $100,000, so that the gross proceeds of sale would be about $3 million.

92 The discount for risk must be applied at this point. I have mentioned the assessment of the planners who gave evidence. It is to be noted that the percentages for the chances of success offered by Mr Hooper assumed that the strategic review had already been carried out. There is no certainty that such a review would be undertaken, that it would produce the desired recommendation, or that it could be completed by 2002 in time for a rezoning in that year. The introduction of these factors into Mr Hooper's estimates must reduce the chances of success substantially.

93 Ultimately, the two planners, Mr Hooper and Mr Sabatucci, made their assessments as a global reaction to all of the factors which bore upon the chances of success. I must do likewise, but informed by their considerable expertise and familiarity with the processes involved. In the event, I prefer Mr Sabatucci's assessment that the prospect of achieving a rezoning of the subject land by 2002 was negligible. I am of this opinion because the planning authorities had long maintained as a mindset that urban development should stop at the escarpment. Further, they had so maintained this position through a series of considered re-evaluations of strategic planning for the area. This may not have been an entirely logical position or, from a theoretical planning point of view, a sensible one. I express no view about this. It represented, however, a very serious obstacle in the path of Mr Harper's project.

94 In my assessment, Mr Harper realised this. This provides a very good reason for his inactivity after the setback of early 1998. He then adopted the eminently sensible position of biding his time, waiting for the pressure for residential development to build up and, perhaps, for the opportunities which the freeway completion might present. In these circumstances, and of course being unaware of the fact that he would suffer a stroke in 1999 and of the further setback which was to arise when the window of opportunity closed in 2002, he would not have continued to press for rezoning in the years to 2002.

95 The consequence of this conclusion is that the opportunity which was lost was a valueless opportunity. This head of damage has not been made out.

96 I conclude, therefore, that the loss which Southlink has suffered by reason of the December 1999 sale of the subject land is the sum to which it would have been entitled had the net profit of the venture been distributed upon the sale at that time. This is $13,526.76 , being 50% of the net profit[35] plus $16,834.40 being the third party expenses,[36] a total of $30,361.16.

97 It would seem, therefore, that there should be judgment for the plaintiff in that sum plus interest, plus costs. I will hear counsel further as to the precise orders to be made to give effect to this conclusion.

I certify that this and the 31 preceding pages are a true copy of the reasons for Judgment of Byrne J of the Supreme Court of Victoria delivered on 28 May 2010.

[1] The executors were unable to prove the will of Mr Rand because the validity of the will was in issue. They were acting as personal representatives of the deceased under a limited grant of letters of administration.

[2] [1915] HCA 14; (1915) 19 CLR 544 at 548 - 549.

[7] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 282-3.

[11] Defence para 4.2.8, para 4.2.15, 16.

[13] Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, 105.

[14] Hall v Bust [1960] HCA 84; (1960) 104 CLR 206, 217 - 218 (Dixon C.J.)

1. [15] Reuthlinger v Macdonald & Ors (1976) 1 NSWLR 88, 101. See also John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc & Anor [2004] SASC 128, [120] - [121] (Besanko J, with whom Mullighan and Gray JJ agreed); and Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] NSWCA 327, [81] - [84] (Giles JA) and [143] - [146] (Hodgson JA).

[20] Summers v Commonwealth [1918] HCA 33; (1918) 25 CLR 144, 151 - 152 (Isaacs J).

[21] [1978] HCA 12; (1978) 138 CLR 423.

1. [22] CGM Investments Pty Ltd v Chelliah [2003] FCA 79; (2003) 196 ALR 548, [18], per Finkelstein J. This decision was reversed on appeal sub nom. Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279, but his Honour's analysis was accepted by the majority of the Full Federal Court at [2] (Ryan J) and [40] (Kiefel J) . But note the reservations of Gyles J at [57].

[24] See Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64, 125 - 126 (Dean J) and 147 (Toohey J). See also Sellars v Adelaide Petroleum NL [1994] HCA 4; (1992) 179 CLR 332, 356 (Mason CJ, Dawson, Toohey, Gaudron JJ).

[25] See Sellars v Adelaide Petroleum NL [1994] HCA 4; (1992) 179 CLR 332, 355 (Mason CJ, Dawson, Toohey, Gaudron JJ).

[26] Wenham v Ella [1972] HCA 43; (1972) 127 CLR 454, 466.

[27] [1988] HCA 64; (1988) 166 CLR 351.

[28] [1991] HCA 54; (1992) 174 CLR 64.

[29] Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64, 93 (Mason CJ and Dawson J).

[31] Mr Hooper said that a DPO was not the appropriate vehicle for such a study.

[34] Mr Harpur did say, however, that he performed some work after learning that the subject land had been sold.