Mr Moores
38 Mr Moores gives evidence that he went to the auction willing to purchase the Land for up to $2m. He does not recollect hearing Alderman Buchanan saying anything at the auction. He says he did not try to top the bid of $1.65m because it seemed to him that once that bid had been given the auction stalled. He gives evidence that he negotiated, after the auction, with one of the men from the real estate agent who was not the auctioneer. He says:
"The real estate gentleman said to me that the highest bidder was prepared to go to $1.7; that wasn't accepted; would I go to $1.75 and if I did I would buy it. I agreed to do that, I said, "Yes, I'll pay $1.75." Then I thought it was going to be my property."
39 He says that he did not sign a contract that day, but that he was going to do it on the Monday morning.
40 Mr Moores also gives evidence that, about one hour after he had left the site where the auction was held, he returned and had a conversation with a lady, who he thought was a neighbour, as follows:
"She said, "You were the gentleman bidding at the auction?" I said, "Yes I was." She said to me, "Do you know this is not going to happen here? They are not going to build any units here. You should be very careful." I said, "What are you talking about?" She said I won't be building any units on this site. I said, "How do you know?" She said Alderman Buchanan would have it rescinded. She said that, "Did you see a man with a camera at the auction?" I said, "Yes I did." She said "That was Alderman Buchanan"."
41 Mr Moores' evidence is that this conversation caused him concern, so he rang the planning department at Randwick Council the following Monday morning. He spoke to a man there, who told him that the development application had been approved, but an attempt would be made to rescind it, and named three Aldermen (including Alderman Buchanan) as ones who would be voting against the development application. Mr Moores says that this news caused him immediately to decide not to go ahead with buying the property. He telephoned Mr Ziade, and had a heated discussion in which he accused Mr Ziade of trying to sell a site "that was going to be rescinded". A transcript of Mr Ziade's contemporaneous note continues:
ZIADE: "That is rubbish."
MOORES: "Look, I have been told by a Council Alderman that the development consent is going to be rescinded. I am going to report your firm to the Real Estate Institute."
ZIADE: "I can assure you it can not."
MOORES: "There are ample sites on the market. I do not need hassles with Council. Good Bye."
42 Notwithstanding what is recorded there, Mr Moores does not now say that he had been told by any Council Alderman that the development consent was going to be rescinded. He gives no evidence of any discussion with any Alderman on the topic, and says he did not talk with Alderman Buchanan.
43 Even if Mr Moores' evidence is taken at face value, the information which the lady passed on to him when he returned to the site after the auction is not shown to have, more likely than not, derived from anything which Alderman Buchanan said at the auction. In its terms, the information which the lady gave him does not purport to be derived from anything which Alderman Buchanan said at the auction, or indeed from anything that Alderman Buchanan said anywhere. In any event, Mr Moores' evidence about the remarks the lady made to him cannot be used as evidence of the truth of the statements the lady made (because of both the hearsay rule, and the basis upon which evidence of the conversation was admitted at the trial).
44 The controversy surrounding the redevelopment of this site was longstanding, and well publicised in the local community. Mr Ziade accepted that there would be difficulties in selling the property because of that publicity, and that there had been "a lot of bad press". Some of the publicity in the local press reported on not only the debate about the merits of the rezoning and development application as a matter of town planning, but also on the fact that Mr Shalhoub was prominent in the affairs of the Liberal Party in the area, and Aldermen who had supported the rezoning and development application were also members of the Liberal Party. There was no specific evidence of publicity about the moving of the Second Rescission Motion by Alderman Buchanan on 20 August 1991, but neither was the topic one concerning which one would expect secrecy to be maintained.
45 Mr Moores gives evidence he was "pretty sure" he had seen the lady at the auction, and that "I think she was near Mr Buchanan". She is not otherwise identified. The lady was not Mrs Goodwin, however, because Mrs Goodwin left the site soon after the auction had concluded, and did not return that afternoon. The evidence establishes that there was a Mrs Schramm, who was a neighbour, and had been (with her husband) very active in opposing the development. There is a realistic possibility, on the evidence, that the lady in question might have been Mrs Schramm (though it cannot be said that the evidence makes it a probability) and if it was Mrs Schramm there was no reason to think that her only source of information about the Second Rescission Motion was Alderman Buchanan, or anything Alderman Buchanan said at the auction.
46 However, I have considerable doubt about whether Mr Moores' evidence should be accepted at face value. In chief, he said that prior to 1991 "I had done quite a few - bit of developing." On probing in cross-examination, it emerged that the only developments he had done were, building a block of six units in Bexley in 1964, and a block of 12 units in San Souci in 1969 or 1970. In the year after the auction, 1992, he demolished his own home and built a new home on the same site. Thus, in 1991 he had done no development work for over 20 years. His business was, in 1991, running licensed premises which included a 360 seat restaurant in Coogee. He had been involved in running restaurants for many years prior to that. He says he was attracted to the plaintiffs' site by a sign outside it advertising the auction - "I wasn't a developer until I seen that sign, I wasn't a developer." He says that, once his interest in the plaintiffs' site was aroused, he looked around at what places were selling for in the Coogee area, but he did not keep a folder or file of his researches. He had not engaged a lawyer to look at the contract before attending the auction. While he gives evidence that he had financial facilities which would have enabled him to purchase the plaintiffs' site for $2m or more, and a relationship with his financier which enabled him to telephone the financier on the day after the auction to discuss the purchase of the site with him, there is no documentation tendered concerning his financial facilities. He says that he did not pay a deposit on the day of the auction because there was no pressure to do so - this seems very strange, as one would expect a real estate agent to try hard to obtain a binding commitment, on the day of the auction, from a person who had been an underbidder at the auction, and who was prepared to pay the highest price of anyone who was there that day. It is at odds with Mr Ziade's account of the post auction negotiations:
"What I recall is we are trying to get the price up from the highest bidder. That didn't work. We tried and eventually we just walked away from it."
47 Mr Moores' evidence about his state of mind after the negotiations immediately following the auction had concluded is not consistent with his having made a firm offer, which was accepted in principle, to purchase the site for $1.75m. He said:
"I didn't have to pay the deposit until such time as, I know now I had time to look things over and I went down and did a little bit more investigation shall I say, that's all, no pressure whatsoever."