Plaintiff v Defendant

Plaintiff v Defendant - [2011] VSC 366 - VSC 2011 case summary — Zoe

[204]

Question: Are you able to, if I can take you a bit further forward in time, take you to when you first heard about the property that we're all in court over, the Portland property?

Mr Harpur: Yes.

Question: Do you recall when that was?

Mr Harpur: Yes, it would have been about a week prior to the contract being signed.

Question: How is it that you're able to recall it was just a week prior to the contract being signed?

Mr Harpur: Only because I - it all happened very, very quickly, so the contract date pins it down for me.

Question: Do you recall where it was that you first heard about the Portland property?

Mr Harpur: I first heard about the Portland property from Gordon when I was with him having a coffee in a St Kilda Road coffee lounge very near my home.

Question: And that was in early December?

Mr Harpur: Yes.

Question: You've just indicated the week before the contract?

Mr Harpur: Yes, yes, early December, exactly.

Question: What was it that Gordon told you about the property?

Mr Harpur: Well, he told me that it was a terrific opportunity. By then I got to understand Gordon, or I thought I had, pretty well, and when he said that I took notice because I think he had a terrific project in Flemington that I'd looked at with him but we didn't proceed. So, he told me - because he knew I'd done some developments in bulky goods, so he told me that this one was ready to go. It was a situation where they had - firstly, the size of it was very - was quite large, about 18 acres. It was on a corner, a very important corner to Portland. He told me that. He told me that the situation was that it was fairly much a turnkey situation.[174]

....

Question: What did he tell you the property was like?

Mr Harpur: Well, he told me that the property was obviously flat with a lot of road frontage. He told me that he had tenants, there were tenants available for the property, and there were a number of names, but the two that stood out because - were really Bunnings and the interest of Coles and Aldi, because those names on a site are like gold.

....

Question: What was it that he told you about Bunning?

Mr Harpur: Well, he told me that Bunnings wanted to go there; they were in a situation where they were ready to be - get a proposal to actually go there, so it was being developed. They'd committed to the site in terms of what they wanted. He mentioned two sizes to me. One was fairly low for a Bunnings, 3000 metres, and the other one was more to the usual scale, about 6000. He told me that 3000 was a new module that they were looking at in regional areas, so.[175]

Question: Did he tell you which of those or was it both that Bunnings was interested in?

Mr Harpur: They were interested in a major part of the site and from that I devolved that the more likely it was the 6000 metres.

Question: What about Coles? What was said to you about Coles?

...

Mr Harpur: That Coles wanted to go to the site, that there had been representations by Coles to the city and that it would need the rezoning to go through to accommodate them on the site, that they were quite prepared to be involved in that process. And Gordon knew and said to me, "Well, when you've got a tenant of that size who want to go to a site and give it their imprimatur, then everything becomes much, much easier in relation to rezoning" ....[176]

Question: What was said to you in relation to Aldi?

Mr Harpur: Well, it was a very similar thing, um, he mentioned that, um, they were very keen to get into this area and they'd opened one in Warrnambool and he'd said this was the next target for them.

Question: Did he say anything else about Aldi?

Mr Harpur: Not that I - not that I can remember.[177]

....

Question: Now, did he show you a plan of the property when you had your meeting in early - - -?

Mr Harpur: Yes, he did, it was a - he showed me a few things. One was a set of titles, of five titles, um, and then there was a plan that consolidated or showed all those titles and showed the potential development could occur there, um, and that really broke into three areas. One was a straight forward B4 bulky goods, um, where the Bunnings was claimed to be the anchor tenant, um, the other area to be rezoned where the claim was that Aldi and Coles, ah, wished to go there, um, that was delineated and then, ah, at the other end, what they were - what he said to me about that being a major truck stop was that there were two parties involved, um, the - at this stage the only one that I can remember straight away is Scott, who was the major sponsor of the Adelaide Crows and had a major trucking (indistinct). And apparently when he leased any of the trucks to the owner or the operators, they were committed to using his fuel as well so that - and Portland being where it was, it was an obvious place for him to put a major truck stop and to fuel all his trucks that were flowing through there. And Gordon spoke about setting up accommodation with it as well so that truck drivers, ah, could get recharged, ah, briefly and then continue on their trips et cetera. Um, there was another one that he mentioned; I just can't remember who it was.[178]

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Question: Do you recall if Mr Turner said anything else to you about prospective tenants for the development?

Mr Harpur: Mr Turner, apart from talking, saying that Bunnings were available and saying he also indicated to me that Mitre 10 were also, had negotiations in relation to taking a part of the site, and we discussed the fact, well, if we can get Bunnings, we wouldn't be interested in Mitre 10. So that was the basis on which that went. He told me he had an electrical, a local electrical store, I can't remember who it was, but I just don't remember, but it was one of the ones that were already operating an electrical store in Portland, in the city centre. [179]

....

[348]

PAUL HENRY HARPUR AGAINST LORD BUDDHA PTY LTD

MEETING OF 1st FEBRUARY 2008 HELD IN BOARD ROOM OF ICR PROPERTY & INVESTMENT GROUP PTY LTD

LEVEL 1, 68 MOLLISON STREET, ABBOTSFORD, VIC. 3067

AT 12 NOON.

PRESENT: David Gibbs ("Gibbs") Lord Buddha Pty Ltd.

Paul H Harpur. ("Harpur")

Ron Hutchins. Forvale Property Group (R/E Agent)

Ken Tunbridge Harpur Group Accountant

PURPOSE: To

(a) discuss and resolve matters pertaining to the arrears of deposit monies as set out in Contract of Sale dated 11th December 2007.

(b) discuss forward planning of project.

OUTCOME: Terms of Deed of Variation dated 1st February 2008 settled and document signed by Vendor and Purchaser.

DETAILS OF

MEETING: All present agreed that the sudden death of Gordon Turner ("Turner") was a blow to all concerned and placed those present in a difficult situation as the Late Mr. Turner had been instrumental in bringing the parties together briefing Harpur and was the prime mover in the proposed development of the site.

Gibbs emphasised that he required the overdue part deposit to enable him to honour commitments made in other projects.

Harpur stated that he had relied of [sic] the information and calculations produced by Turner as agent for the vendor and had had no reason doubt [sic] what he was told.

Gibbs stated that he had not told anyone including Turner that he had tenants for the development nor that he had Council's agreement to ........................ an amendment to rezone the land to B1.

Harpur suggested that Gibbs might sell to the other purchaser he had or Harpur with his assistance might put together a consortium to carry out the project but this could take 12 some months to put in place.

Gibbs stated that he, Turner, had another purchaser at much the same price when he sold to Harpur.

Gibbs and Harpur by this time were becoming rather heated and agreed to have a break and then resume.

After some 15/20 minutes Gibbs returned, further discussion took place which resulted in the Deed of Variation being prepared and signed.

Gibbs and Harpur agreed to work together to achieve the development of the site with Gibbs to provide the details of his tenants and meetings with Council relating to the site to Harpur.

Harpur would work to form a consortium or property company to acquire and develop the property.

It was agreed by both parties that the development of the site would be a long term project which would best be completed by a property trust with substantial income from other ........................ properties.

[510]

The relevant principles. In Yorke v Lucas, Mason ACJ, Wilson, Deane and Dawson JJ said that a corporation could contravene s 52 even though it acted honestly and reasonably:

"That does not, however, mean that a corporation which purports to do no more than pass on information supplied by another must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing it on for what it is worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive."

In applying those principles, it is important that the agent's conduct be viewed as a whole. It is not right to characterise the problem as one of analysing the effect of its "conduct" divorced from "disclaimers" about that "conduct" and divorced from other circumstances which might qualify its character. Everything relevant the agent did up to the time when the purchasers contracted to buy the Rednal land must be taken into account. It is also important to remember that the relevant question must not be reduced to a crude inquiry: "Did the agent realise the purchasers were relying on the diagram?" To do that would be impermissibly to dilute the strict liability which s 52 imposes.

For the following reasons, the agent did not engage in conduct towards the purchasers which was misleading. Whatever representation the vendor made to the purchasers by authorising the agent to issue the brochure, it was not made by the agent to the purchasers. The agent did no more than communicate what the vendor was representing, without adopting it or endorsing it. That conclusion flows from the nature of the parties, the character of the transaction contemplated, and the contents of the brochure itself. [423]

..... [the court considered, the nature of the parties, the character of the transaction and the contents of the brochure]

....

Hence it would have been plain to a reasonable purchaser that the agent was not the source of the information which was said to be misleading. The agent did not purport to do anything more than pass on information supplied by another or others. It both expressly and implicitly disclaimed any belief in the truth or falsity of that information. It did no more than state a belief in the reliability of the sources.[424]

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Legislation Cited (35)

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