74 I have already referred to the absence of any allegation concerning these representations prior to the filing and service of Mr Graham's witness statement in November of this year, and to Mr Graham's evidence that these were by far the most important of the representations upon which he says he relied.
75 Mr Graham's evidence suggested that the representation as to $4500-$5000 may have been made prior to his advising Mr Bahen that what he wanted was a penthouse.[6] The express terms of this alleged representation concern "apartments", not penthouses. Mr Bahen said in cross-examination that there were no apartments available at the rate of $4500 to $5000 per square metre. The materials in the possession of selling agents in the latter part of 2001 suggest the contrary, however. As I indicated earlier, the tables of prices and related information in that material indicate that apartments at the lower levels were available for purchase at the rate of $4500 to $5000 per square metre. Mr Bahen denies making any such representation.
76 On the evidence I cannot make a finding that a representation was made to Mr Graham that apartments were available at the rate of $4500 to $5000 per square metre, but even if that representation had been made in the terms alleged, on the evidence before me I cannot conclude that it was misleading or deceptive. In any event, if made and if misleading it was not relied upon, as Mr Graham's evidence made it clear that the alleged subsequent specific representation concerning $4900 per square metre for apartment 1802 was, according to him, the operative representation when he bound himself by signing the contract on 12 December 2001.
77 The representation concerning $4900 per square metre for apartment 1802 was, if made, clearly false.
78 In the circumstances, Mr Bahen would have been very audacious in making such a misrepresentation. This is because it was almost certain that the falseness of the representation would be discovered, as Mr Graham himself conceded.
79 If made at all, the $4900 square metre representation must have been made at some time after apartment 1802 was designated as the apartment that Mr Graham was to purchase. The representation, if made, was still operative and uncorrected at the time Mr Graham signed the contract, according to his evidence. On that very day Mr Bahen wrote to Colliers referring to the fact that apartment 1802 was "now priced at $8403.07 per sqm".
80 According to Mr Graham, he became aware that this representation was false when he received the floor plan, which in his witness statement he said was August 2004, although in his oral evidence he said it was earlier, perhaps some time in 2003.[7] Whenever it was, it was then apparent to him that the price was not $4900 per square metre. Yet, according to Mr Graham's evidence, he did not raise this with anyone or complain to anyone at that time. In his witness statement he explained this as being a result of the "turmoil" in his life and his preoccupation with the "fallout" from the Media World collapse. Even if one accepted this explanation, it is incredible that when Mr Graham did eventually make complaints through his solicitors, and made complaints about representations which were alleged to have been made to him and to have been false, this representation was not mentioned.
81 Mr Bahen also bought an apartment in Watergate. His apartment is on a lower level and the evidence is that he was given a discounted price. It was revealed in cross-examination that in the course of preparation for the purpose of this trial, Mr Graham was told by his counsel that the price paid per square metre by Mr Bahen was $4900.[8] It was put to Mr Graham that this discovery was the explanation for the late introduction of the alleged misrepresentation concerning $4900 per square metre for apartment 1802.[9] Mr Graham denied this. This circumstance compounds my concerns arising out of Mr Graham's failure to refer to the alleged misrepresentation earlier and his unsatisfactory explanation for this failure.
82 In all the circumstances I cannot accept Mr Graham's evidence that the representation concerning a price of $4900 per square metre was made to him. If it was made, it is clear that it was false and that Mr Bahen would have known it to be false.
First 30% of sales "at cost"
83 In his evidence Mr Graham sought to bolster his position in relation to this representation by referring to his own experience in financing arrangements for resource projects in which he had been involved by referring to representations made to him by Mr Bahen concerning another Docklands development, and by referring to a general real estate marketing strategy put in place by the Terrain Group employing Mr Bahen.
84 Whilst in his pleading and his witness statement Mr Graham maintained that the representation made to him was that the apartment was being sold "at cost", in his oral evidence it seems to me that he departed from this position, suggesting that the representation made, or his understanding of what he was being told, was that the margin was very small, not more than 10%.[10] I found his evidence in relation to this representation vague and confusing. The letter concerning the other project does not suggest that apartments were being sold "at cost", rather, it suggests a very small margin of profit.
85 According to a valuer called on behalf of Mr Graham, Mr Bassett-Smith, Docklands was experiencing boom conditions in 2001. Mr Schwartz's evidence was that no "first 30% at cost" approach was ever countenanced by Pan Urban. Mr Bahen's evidence was that he had no knowledge of Pan Urban's profit margins or finance arrangements. He denied making any such representation.
86 In his evidence Mr Graham related this "at cost" representation to his own knowledge of project financing, especially in the resources sector. In final submissions, Pan Urban suggested that this representation was entirely a reconstruction based upon this experience.
87 I cannot find that the representation alleged was made.
Re-sell without difficulty at a profit of 20%
88 The allegations concerning this representation have also altered over time. Initially the allegation was that the apartment could be sold with a profit of 20% "in the first year of construction". The allegation now pleaded is that it could be sold without difficulty at a profit of approximately 20% "before settlement". This may not be a significant difference.
89 What is significant, however, is that in his cross-examination Mr Graham retracted the suggestion that Mr Bahen had represented that the appreciation would be 20% and suggested instead that this had been his own calculation.[11]
90 If Mr Graham was told anything specific about re-sale, and I am not able to find on the evidence that he was, I do not consider that he relied upon it. His evidence was that he was buying for the long term, with a 10 year view. At one point the following interchange took place with senior counsel for Pan Urban:[12]