Song & Anor v Brady Lonsdale Pty Ltd [2023] VCC 239

Song & Anor v Brady Lonsdale Pty Ltd [2023] VCC 239 | Case summary | Zoe

[68]

Mr Wang agreed that it was in the commercial interest of his principal, Brady, and himself that the settlement should proceed. (T930, L3-9) Mr Wang said "So that's my ... job at that time, to encourage all customers to settle if they could." (Ibid, L15-16)
Mr Wang said he led Ms Song up through the lobby to level 39 to inspect apartment 3908. The first few comments on behalf of the purchaser were written by Mr Wang at Ms Song's request, according to his account. (Ibid, L37-41) He said Ms Song requested that her daughter, Ms Hu, be asked to inspect before any sign off took place. (Ibid, L42-45)
The first four items under "Purchaser's Comments" therefore appear to be in Mr Wang's handwriting. (CB 4114) The others were, it seems, written by Ms Hu. (T779, L32-33) Ms Hu said "So I took a lot of note, [sic] because I knew this property was very important for my mum. She wanted to buy this property and live in there ..." (T780, L29-30) Ms Hu was intending to live in the unit as well. (Ibid, L44)
Ms Dai of Australian Legal Advisory Centre, who is both a friend of Ms Song and her solicitor, said she first became aware that Ms Song had purchased a unit in the 380 Melbourne development around 30 March 2017. (T517, L35-44) At that stage, Ms Dai said she was not representing Ms Song for the purposes of the transaction. (T518, L9-12) Ms Dai said that she lent $60,000 to Ms Song for the deposit on the apartment. The moneys, she believed, were her own mother's funds. (T518, L35-45) Ms Dai said that her mother and Ms Song, had a good relationship because "Ms Song often brought some medication for my mum from China". (T519, L13-14)
Ms Dai said she was also involved in preparing a nomination form relative to the Contract of Sale but was not otherwise acting. (Ibid, L31-47)
Ms Song had commenced working for Ms Dai at her practice about July or September 2016. (T520, L17-18)
In May 2020, Ms Dai said she received an email from Brady's solicitors, Thomson Geer. (Ibid, L24-36) The email was said to be a general notification to be ready for settlement and informing that plans of sub-division or "occupant's certificate can be ready". (T521, L6-7) A trust account receipt from Thomson Geer (CB 1815 previously referred to) shows the $60,000 from the "Australian Legal Advisory Center [sic] Trust Account" as having been paid as part of the deposit for apartment 3908.
Ms Song gave evidence that "in April 2020, I nominated solicitor Dai ... to represent me". (T331, L4-5) This was at a time when Ms Song says she was employed at Ms Dai's legal practice known as ALAC. (Ibid, L9) Ms Dai denied that this was so. When asked about this evidence, observing perhaps non-responsively, "she [viz Ms Song] thought that Mr Wang is a wonderful person, is her younger brother, but tend to disaster." (T591, L19-20)
The correspondence from Thomson Geer was by way of email dated 26 May 2020 addressed to "Australia Legal Advisory Center" [sic] and said that Thomson Geer acted for the vendor, Brady, "and understand that you act on behalf of the Purchaser". (CB 2610) The email also requested ALAC to "forward Nomination documents (if applicable) to our office as a matter of priority" noting that registration of the relevant plan of sub-division was anticipated in June 2020. (CB 2611)
Ms Dai agreed that the email from Thomson Geer proceeded on the footing that, or perhaps more accurately, her practice, ALAC, was acting for Ms Song on the purchase. (T521, L28-31) Her reaction, however, was that since she was not acting, the correspondence had nothing to do with her. (Ibid, L40-44) She did not, however, respond stating that she had no instructions or that she was not acting. She said "At that time, I don't need to do anything because I wasn't representing". (T522, L5)
Ms Dai said that she "thought Ms Song was very capable". (Ibid, L16) She said "My position at that time is if I'm not acted ... I don't make a reply. [sic]" (Ibid, L33-38) She said she did not contact Ms Song "because we have the very frequent contact, so I think the - she already know settlement to come in and I already know she want to proceed the settlement but prepare funds." [sic] (T523, L5-7) Ms Dai did not accept that it would have been a breach of professional etiquette for Thomson Geer, believing that ALAC was acting, to correspond directly with Ms Song. (Ibid)
Thomson Geer sent an email to ALAC dated 18 August 2020, once again, beginning, "[W]e act for the Vendor ... and understand that you act for the purchaser". The email said, "[T]he Occupancy Permit has now issued. A copy can be downloaded via the link below". Also available for download was an item described as attachment on Annexure 6 "S2 Street Address Allocations". The email indicated a projected settlement date in "the first week of September". (CB 2656) Ms Song said:

[146]

The plaintiffs said, as a consequence of these matters, Ms Song asked Mr Wang for details about a two bedroom unit on an upper level involving the number "8", with Mr Wang identifying apartment 3908, which they said he described as "especially good for Ms Song, as being a corner unit with a good view of Lonsdale Street". At this point, the plaintiffs said Ms Song invited her daughter, Ms Hu, and "asked her to come to the display centre to consider whether they would like to purchase this unit". (CB 63)
The plaintiffs said that Mr Wang, to induce Ms Song and/or Ms Song and Ms Hu, represented to Ms Song that there was considerable interest in purchasing units in the Lonsdale Street project because of its prominent address and if she wanted to secure a unit at a good price, she could put a small deposit on one immediately and $5,000 paid forthwith would secure the Contract of Sale.
The plaintiffs said that the representations described were made on behalf of Brady in the course of trade, and insofar as they were made as to future matters, were made in circumstances where "she" [scil he - Mr Wang] did not have reasonable grounds for making the representations. They referred to s4 of the Australian Consumer Law (being Schedule 2) to the Competition and Consumer Act 2010 (Cth) and to s2(2) of that Act.
The plaintiffs said that, in reliance on the representation, Ms Song paid $5,000 "to secure the Contract of Sale ... for ... Lot 3908", (CB 65) whereupon Mr Wang prepared a Contract of Sale showing Ms Hu as the purchaser. The contract included, it was said, a front page as previously described. Alternatively, Ms Hu entered into the relevant contract on her own behalf. The plaintiffs referred to the several matters contained in the Vendors Statement given under s32 of the Sale of Land Act 2010 (Vic).
The plaintiffs alleged various terms to be found in the Contract of Sale and they referred to s9AA of the Sale of Land Act 1962 (Vic).
The plaintiffs said the Contract of Sale was signed by Mr Daniel Brady as attorney for Brady, but no Power of Attorney was attached. They said he was not a director of Brady, moreover, the Vendor Statement was purportedly signed by an Anthony Brady, being a director, but the signature, it was said, was "only pasted in and was not an original signature". (CB 67) Consequently, they said there was no note or memorandum to satisfy the provisions of s126 of the Instruments Act 1958 (Vic) and, accordingly, "the Contract of Sale was, and is, unenforceable". (CB 72)
They referred to the payment of a further $2,300 by the plaintiffs for "higher quality appliances" and to the nomination under condition 18 of the Contract of Sale by instrument dated 30 March 2017 of Ms Song as purchaser's nominee.
Next, the plaintiffs alleged, "further representations" made via information contained on the "internet" as follows:

[160]

The plaintiffs said that Brady would have been aware that the design of the project was such that it was almost certain, in accordance with Melbourne City policy, that the apartment would not have a Lonsdale Street address, but Brady chose not to disclose this essential information and to conceal an unattractive feature. It was said Brady devised the "ambiguous and misleading name for the building '380 Melbourne'". (CB 83) The plaintiffs said, at no stage did Brady notify them unequivocally of the possible change in the address and repeatedly failed to notify them, even after the advice from Melbourne City Council. It was said that the s32 statement was not properly signed and was therefore invalid.
It was said that Brady was, in the circumstances, liable for the conduct of Mr Wang, whereas the plaintiffs relied on the express and implied representations of Mr Wang, as Brady's agent.
According to the plaintiffs, the payment of the further sum of $84,960 was in contravention of s9AA(b) of the Sale of Land Act 1962 (Vic). In the circumstances, the plaintiffs said that Brady held an amount equal to 20 percent of the purchase price of the apartment as stakeholder. Alternatively, the further payment representations, as made by Mr Wang, were in trade and commerce and were misleading or deceptive, and were acted upon by the plaintiffs, whereas, in fact, the plaintiffs were not obliged to pay a further 10 percent deposit and Brady "concealed the fact that the said payment was a blatant breach of the provisions of the SLA". (CB 87) The further payment representations were said to have been made in circumstances where Brady had a duty to take reasonable care, they were incorrect, made negligently and in breach of duty.
Alternatively, they were misleading or deceptive and made in breach of s18 of the Australian Consumer Law. As a result of these matters, the plaintiffs were said to have suffered loss or damage. According to the plaintiffs, Brady was in breach of its statutory obligations under the Sale of Land Act 1962 (Vic) by virtue of s32K of that Act, in failing to provide information as to the likelihood that the address of Lot 3098 would not be Lonsdale Street. Brady was said, therefore, to have contravened s4 of the Australian Consumer Law in making representations in the course of trade and commerce without reasonable grounds, or without any belief in the truth of the representation. The plaintiffs said that, in reliance on those representations, they had suffered loss and damage. These representations were said to have been made negligently and in breach of Brady's duty of care. The plaintiffs said they were entitled to compensation in accordance with s236 of the Australian Consumer Law. Alternatively, they were entitled to rescind, and did rescind, the contract by virtue of the plaintiffs' solicitor's letter of 28 April 2021.
Alternatively the Contract of Sale was "void and unenforceable" for not being executed in accordance with s127(1) of the Corporations Act 2001 (Cth).
There was also a claim of entitlement to rescind the contract by virtue of alleged deficiencies on the Vendor Statement under s32 of the Property Law Act 1958 (Vic) or a contention that, for these same reasons, the Contract of Sale was void ab initio.
The plaintiffs' claim, by way of loss and damage, is $172,220 interest under s58 of the Supreme Court Act and conveyancing costs, various declarations and an order for repayment of deposit moneys under s49(2) of the Property Law Act 1958 (Vic), together with damages pursuant to s236 or, alternatively, s243 of the Australian Consumer Law for consequential relief.

[169]

Brady admitted that Mr Wang told Ms Song and Ms Hu that "they would need to pay a $5,000 holding deposit and execute a Contract of Sale and the balance of the 10percent deposit could be paid within the next two weeks". (CB 109)
Brady said that Mr Daniel Brady executed the Contract of Sale pursuant to Power of Attorney dated 16 August 2016. As to the Vendor's Statement, they said the director, Mr Anthony Brady, was entitled to sign electronically. According to Brady, after the Contract of Sale was entered into, there was a separate agreement whereby Brady agreed to supply and install a Gaggenau dishwasher prior to settlement of the Contract of Sale for the sum of $2,300.
As to the nomination of Ms Song as the purchaser, Brady said it accepted her as the nominated purchaser on the basis that she and Ms Hu were "jointly and severally liable for the due performance of the obligations of Ms Hu under the Contract of Sale". (CB 114)
As far as the claimed termination of the contract based on the Sale of Land Act 1962 (Vic), Brady said that Ms Song was not the purchaser under the Contract of Sale and had no legal entitlement to exercise the purchaser's right to terminate the contract.
Brady admitted that, in or about 2017, the relevant Plan of Subdivision was amended and Brady did not, within fourteen days after receipt and the requirement of the registrar, advise Ms Hu in writing of the opposed amendment. They said that she was advised in writing with a copy of the current plan of subdivision on 26 May 2020 and further that, on 18 August 2020, had advised Ms Hu in writing of the amendments to the Plan of Subdivision. They said, further, that none of the amendments "materially affected the Property". (CB 117)
Brady admitted that it entered into a Deed of Variation of Contract dated 15 April 2019, providing for the extension of the island kitchen bench, moving the TV point in the Master bedroom, supplying and installing double power points in the second bedroom and modifications to the toilet and basin in the ensuite. It admitted it received a further $260,000 as part of the modified deposit amount on or about 14 June 2017.
Brady agreed that on or about 27 March 2020, Melbourne City Council advised that the street address for Unit 3908 was 371 Little Lonsdale Street, Melbourne. As at that date, the City of Melbourne had not certified the Plan of Subdivision and the 27 March 2020 pending allocation records the status of certification as "Pending". It said that on 1 July 2020, the Melbourne City Council certified the plan of subdivision and on or about 14 August prepared a document entitled "New Street Address Allocations Information" showing apartment 3908 as having an address of 371 Little Lonsdale Street. Brady recited the circumstances which it said led to the payment of the extension fee and denied this was unlawful or legally unenforceable.
As to the address of apartment 3908, Brady said that, on 9 September 2020, Thomas Geer sent an email to Australian Legal Advisory Centre, showing the property address as "Unit 3908, 371 Little Lonsdale Street, Melbourne, Victoria, 3000". (CB 131)
Brady admitted the circumstances of the issue of the Notice of Default and Rescission and said that, in the events that had occurred pursuant to general conditions 27 and 28 of the Contract of Sale, the Contract of Sale immediately ended on 11 June 2021.
As to the Vendor's Statement pursuant to s32 of the Sale of Land Act 1962 (Vic), Brady said the address 374-380 was correct as at the date of the statement. The street address of apartment 3908, according to Brady, was allocated "more than three years after the date of the Vendor's Statement and the Contract of Sale". (CB 141)
Brady admitted that Mr Wang was acting as its agent and that it was "liable for the conduct of Mr Wang insofar as it was within his express or ostensible authority". (CB 142)
As to the varied versions of the allegations of misleading or deceptive conduct against Brady, these were denied and were the subject of cross-references.
The contract, according to Brady, was executed in accordance with s126 of the Corporations Act 2001 (Cth), by Mr Damian Brady acting under the company's express authority.
Brady denied that special condition 6.3 of the Contract of Sale contravenes s9AA(1)(a)(i) of the Sale of Land Act 1962 (Vic), but noted that, by virtue of special condition 50.1 of the Contract of Sale, it would be read down so far as necessary to be legal and enforceable. It said, further, that if the Contract of Sale contained provisions which contravened provision (b) of Part 1 of the Sale of Land Act 1962 (Vic), the Contract of Sale was not voidable because Brady had, in accordance with s28(2) of the Sale of Land Act 1962 (Vic), acted honestly and reasonably and ought fairly to be excused for the alleged contravention, and the plaintiffs were substantially in as good a position as if the relevant provisions had been observed.

[173]

The trial extended over no fewer than fourteen days, with a further two days for final submissions.
The evidence of the first plaintiff, Ms Song, was given via an interpreter and was extended over no fewer than eight days.
Her evidence was voluble and frequently non-responsive. Generally, she was more concerned to say what she wanted to say, rather than to respond specifically to the questions put to her by counsel, whether her own or the defendants. Her answers were so lengthy that I was required repeatedly to intervene to ensure that the interpreter's memory was not overtaxed, requiring a pause for interpretation halfway through the answer.
Ms Dai, the plaintiffs' solicitor, gave her evidence without the assistance of an interpreter but it regrettably exhibited many of the same features as Ms Song's. In addition, I found her accent difficult to follow and the transcript records her answers as being in somewhat broken English.
Ms Hu gave her evidence in impeccable unaccented English. Her answers were direct and concise, and in this respect, far more satisfactory than the answers given by the two witnesses previously mentioned. Ms Hu is the second plaintiff in the proceeding and, as such inevitably in a partisan position, and her evidence must be assessed in light of that consideration.
Ms Koulouris was an officer of the Melbourne City Council involved in the allocation of street addresses, in particular the allocation of the street address for the subject apartment. By the time of the trial, she was absent from work on maternity leave. She gave her evidence in a straightforward manner. She had no axe to grind, and her evidence therefore can be accepted uncritically.
Mr Wang, the salesman involved in the subject transaction, might be regarded as the principal witness for Brady. As earlier noted, he did not purport to have an exhaustive, independent recollection of the presentation which he made to Ms Song. His evidence as to what was said was therefore, as to significant matters, a reconstruction rather than a record of an actual and specific recollection. Mr Wang gave his evidence in a straightforward manner. Nevertheless, he had an axe to grind and a person in his position, one might have thought, would be reluctant to admit engaging in conduct or making statements which might eventually be found to be misleading or deceptive.
Mr Pethica, a Brady executive, also gave evidence and was cross-examined at length about the history and evolution of the 380 Lonsdale Street, Melbourne development. Once again, he gave his evidence in a straightforward manner, though on mixed questions of fact and opinion, such as the significance, or lack of significance, for status and valuation purposes of an address in one street, rather than another, he was obviously in the position of a partisan and his evidence should be treated with some care accordingly.

[194]

Insofar as the issue of the apartment's address is concerned, it may be accepted that if such a representation were to the effect that the apartment's present address is 374-380 Lonsdale Street and it will continue to have that address after the completion of the entire development, it may be accepted that there would have been no reasonable grounds for making such a representation. Ms Koulouris, an officer of the Melbourne City Council on maternity leave at the time of the trust, said that she was a subdivision officer for the council. (T738, L20‑46) She said that in that role "we do subdivision permits. We do street numbering, road naming. I guess that's about it ..." (T739, L20-21) She said that in the case of complex developments, there may be a process of negotiation between developer and council. She said "where your front door is, that's the street you're addressed from. The discussion is usually about which number to use along that range." (T740, L18‑25) Ms Koulouris was referred to the plans for the 380 Melbourne development and correspondence which she had previously had with a representative of the developer named Denny Devita. (T742‑4) She agreed that the principle which guided her on behalf of the council in the process was that "where access is via the foyer, [as in the case of the north tower of the present development] the principle is that the allotments are allocated to the street which provides the main entrance to the foyer." (T754, L24‑26) In the case of apartments at Level 38, she agreed that "a consideration would be where is the lift that you need to use to get to that level. Is it closer to Lonsdale Street? Is it closer to Little Lonsdale Street? Or is it closer to Timothy Lane?" (T754, L44-T755, L1) Ms Koulouris agreed that a developer in Brady's position, being aware of the nature of the development and the location of the north tower, that apartments in that tower were "going to have addresses in Little Lonsdale Street rather than Lonsdale Street." (T759, L19‑27) An attempt to have a Lonsdale Street address for the north tower would be unlikely to succeed with council. (Ibid, L31‑35)
Here, the plaintiffs' case is that the misleading or deceptive conduct of which they complain induced them to enter into an off-the-plan terms contract in 2017. Statements or representations as at that date of the development and its entire site having a Lonsdale Street address were correct as at 2017. Nothing, however, that has been alleged constituted a representation that this address would continue. Indeed, the complexity and multi-functional elements of the development might be thought to have foreshadowed a multiplicity of addresses for the different elements of the development rather than the single one which attached to the site in 2017.
Insofar as the plaintiffs contend that some of the misleading or deceptive conduct alleged by them is constituted by representations as to future matters, I reject that contention.
What then in specific and individual representations or pieces of conduct are relied on here? Mr Love, in making his closing submissions and speaks to a lengthy two-part outline, conceded that the submissions were not framed so as to be linked to individual alleged representations identified in the pleadings. Mr Tennant correctly observed that it was incumbent on the court in the circumstances to make its determination by reference to the pleadings. The fact that Mr Love's contentions are not specifically linked to paragraphs or particulars, nor capable of easy reconciliation with the plaintiffs' case as pleaded, significantly increases the difficulty in making final determinations and framing the reasons for judgment.
The first set of representations alleged are set out at [120] of these reasons. As to paragraph (a) of these representations, it is not obvious that if such a representation were made, that it would be misleading or deceptive. I did not understand Mr Wang's evidence to concede distinctly having said anything along these lines, but paragraph (a) would not be an inappropriate summary or appreciation of part, or perhaps all, of his sales "spiel". Likewise, paragraphs (b), (c), (d) and (e), along with paragraphs (f), (g) and (h).
The Statement of Claim then alleged a further set of representations made by Mr Wang on behalf of Brady to Ms Song, as set out in paragraphs (e)-(f) of [127]. None of these matters is, as far as I can make out by reference to the Statement of Claim, the evidence or the submissions at trial alleged to be misleading or deceptive. Paragraph (c) is a representation as to a future matter. Whether there were reasonable grounds for it at the time, the prediction has not turned out to be true, at least as of early 2023.
Whilst these representations were said to have been misleading or deceptive, and at least as to one such representation said to constitute representations as to future matters, there was no attempt in the plaintiffs' case to show that they were misleading or deceptive, or, in the case of the prediction as to future value, that there were no reasonable grounds for the prediction.
The Statement of Claim also alleged further representations which are set out at [135] above. As to these "further representations", paragraph (a) is an allegation of the occurrence of an event, not a representation. Paragraphs (b)-(f) appear to identify conduct which, if proven to have a tendency to mislead or deceive, could form the basis for a finding of contravention of s18 of the law. I have already noted as to paragraph (e) and (f) the s32 statements spoke as at the date which it bore in 2017 and was correct as at that date and therefore could not constitute misleading or deceptive conduct.
For analytical purposes, the relevant representations were to be found in paragraph 8A and further "internet representations" referred to as further representations in paragraph 17.
Broadly, there are two sources for the alleged misleading or deceptive conduct -

[196]

As to the first class of conduct, it required determination as to which account of the dealings between Ms Song and to some much lesser extent Ms Hu and Mr Wang, namely the one given by Ms Song or the one given by Mr Wang, is the more reliable. It requires fact finding in the realm of "he says - she says". The second category requires a determination as to the effect of the various advertising materials and their capacity to convey a representation, as ultimately proven to be untrue, that at completion of the development, apartment 3908 would be assigned a Lonsdale Street address. As I understood Mr Love's presentation, he relied on the second category of matters and a variety of post-2017 advertising materials as to which the cross-examined Brady executive, Mr Pethica, has conveying the incorrect message that north tower apartments would have a Lonsdale Street address, or could be regarded as having the address "380 Lonsdale Street". These matters, as I understood Mr Love, could be regarded also as supporting Ms Song's account of what she was told by Mr Wang. It was contended that where in other instances Brady had conveyed the incorrect message that north tower apartments would have an address in Lonsdale Street, or perhaps the address 380 Lonsdale Street, it was more likely that Mr Wang would as the effect of Ms Song's account have given her to understand that very thing.
Whilst Mr Wang was subjected to lengthy cross-examination, he did not concede, as I understood him, that he had said anything which constituted a representation that the north tower apartments would be assigned a Lonsdale Street address or the address, 380 Lonsdale Street, except insofar as it might be suggested that his deployment of promotional materials such as a "brochure" and a "flipbook" might have conveyed that message. Ms Song said he assured her that there would be an entrance from Lonsdale Street which could be availed of by north tower residents (T80, L6) which led her to believe that she would have a Lonsdale Street address. (Ibid, L11) In his closing submissions, Mr Love relied on a number of statements by Ms Song in her evidence-in-chief - "Mr Wang told me the name 380 Melbourne came from the address 374-380 Lonsdale Street. So it was named 380 Melbourne" (T78, L11) and "I really wanted to buy property at Lonsdale Street. Access is good, location is good. That was what I wanted. So, yes, I kept hearing Lonsdale Street, Lonsdale Street. So what I was paying attention to was Lonsdale Street." (T78, L42) Again, Ms Song, in a passage relied on by Mr Love, said "my understanding is the same as what Mr Wang told me. Melbourne 380 is - this expression is based on the address which is 380 Lonsdale Street, and from what I'm seeing I think these two are related. It's just what Mr Wang told me." (T100, L33)
I do not recall Mr Wang being specifically cross-examined on Ms Song's statement that he told her there would be an available entrance for north tower residents from the Lonsdale Street frontage. It is self-evident that the designation "380 Melbourne", which was given to the entire development and which appears, for instance, upon the face sheet of the contract which Ms Hu signed at the request of her mother derived from the address 380 Lonsdale Street. The evidence shows that apartments in the complex were extensively and vigorously marketed to ethnic Chinese purchasers. Brady called no witnesses who pretended to know as to precisely how its advertising material came to be produced and framed in the way they were, but the inference is irresistible that the name "380 Melbourne" was perceived by Brady as being a good marketing point to Chinese people who have a particular affection and reverence for the number "8", which is at least as strong, and perhaps stronger, than the aversion to the number "13" in western communities. (T734, L17‑22)
The statements attributed to Mr Wang, except the one about the proposed entrance to the north tower from Lonsdale Street upon which he was not cross-examined, do not distinctly entail a promise that a Lonsdale Street address would be assigned to apartments in the north tower. Rather, there seems to have been an inference which was drawn by Ms Song herself rather than a distinct assertion, promise or representation by Mr Wang himself.
I turn first to the advertising campaign: that is, materials addressed to the public at large, as distinct from particular conversations or interactions with Ms Song or Ms Hu.
Mr Love noted:

[198]

Turning first to the video, it could be regarded as a promotion of the image of Melbourne generally, and in particular its Central Business District. It was a montage of well-known Melbourne sights. I did not identify - though in the nature of things I might have missed something - any depiction of Lonsdale Street itself. As a long-term resident of Melbourne I found this unsurprising. Lonsdale Street is somewhat prosaic, and none of the "sights" of Melbourne is situated there. For the purposes of this proceeding there was nothing misleading or deceptive about the video.
Different flipbooks were used during the course of the marketing program. The relevant one in use in 2017 appears to be found at CB 4270-4388. The front page includes the words "A heartbeat from everything Melburnians love about their city - 380 Lonsdale Street". At CB 4272, an "Artist's impression", an elevation apparently viewing the proposed development from the eastern side of Elizabeth Street, describes the image as "Corner Elizabeth Street and Little Lonsdale Street".
There is then a series of photographs of the Melbourne skyline from various perspectives, including one identifying a number of CBD buildings and features in and adjacent to the CBD. There then follows a series of Melbourne street scenes, including depictions, for instance, of Chinatown and Hardware Lane after dark, a cake stall in the Victoria Market, vegetables on display in the Victoria Market, a coffee and doughnut outlet in Sutherland Street, and so on. Included amongst the material is a shot of the interior of the domed reading room in the State Library, the Flagstaff Gardens, etc.
The flipbook then turns to the "North Tower", being the tower in which apartment 3908 is situated. There is a further "Artist's impression" of the towers from a different perspective. Court Book page 4302 depicts the Lonsdale Street frontage, showing the hotel lobby fronting Lonsdale Street with an entry from Lonsdale Street at street level. There are further depictions of this entry on the following pages. Court Book page 4305 shows "Artist's impression - Little Lonsdale Street". Court Book page 4306 is an artist's impression of Timothy Lane, which traverses the development as proposed and as built between Lonsdale Street and Little Lonsdale Street. There follows a series of depictions of the proposed exterior structure of the building, and an aerial view of Melbourne looking from the CBD north along the Yarra River past the Punt Road Bridge and the Tennis Centre. There then follow depictions of the interior as proposed.
Court Book page 4322 begins a section of the book headed "Amenity", stating:

[200]

This section contains depictions of the interior. The next section is described as "Fittings fixtures and finishes" (CB 4332). The following section, commencing at page 4338, is described as "Level views", showing "fish-eye" views of the Melbourne skyline, presumably as they might be viewed from within the proposed development, together with northern, western, and eastern elevation of the proposed buildings. The final section of the flipbook is described as "floor plates".
Overall, the flipbook cannot be regarded as placing emphasis on Lonsdale Street. The front page refers to the address "380 Lonsdale Street", which was in 2017 the address of the entire complex. There are depictions by way of artist's impression of both the Little Lonsdale Street and Lonsdale Street frontages. The Lonsdale Street frontage is shown as the entrance to a hotel. In my view this cannot be regarded as a representation that the entrance from Lonsdale Street was to be the entrance to the apartments. It cannot be thought that purchasers of "prestige" apartments would wish to access them via a hotel lobby, nor could it be thought that the hotel management would have wished to have their lobby traversed as a matter of course by apartment owners or lessees accessing their properties. There is nothing in the depiction suggesting that the Lonsdale Street entrance shown was anything other than the front door of the hotel to be situated in the north tower.
The south tower was not ultimately constructed in accordance with the depiction in this flipbook. The hotel now operating from the south tower is accessed via Timothy Lane, with the only Lonsdale Street frontages being retail premises which have not, as at the date of trial, been let. (T1081, L10-27; ibid, L29-37)
Mr Pethica was examined and cross-examined as to the plans and floor plates which were used in advertising material and in the contract. Aside from the "Artist's impressions" in the flipbook, the effect of his evidence was that there were and are no convenient points of access between the north tower and the south tower. Whilst access from one tower to another might be possible now or under superseded designs via areas like loading bays or car parks and through "back of house" areas in the hotel, none of the plans provided an obvious and convenient mode of moving from one tower to another. "As built", there is a single point of access at the eighth floor which was availed of during a "view" conducted in the course of the trial.
In summary, the flipbook does not place any undue emphasis on Lonsdale Street relative to the "380 Melbourne" development. "380" is obviously a reference to Lonsdale Street, and the front page refers to "380 Lonsdale Street", which was, as we have noted, the address of the development as at the date that the flipbook was employed by Mr Wang as a marketing resource in 2017.
I turn next to the "brochure". (CB 1367-1430) The front page has the numbers "380" in stylised font in a very large format, with the word "Melbourne" in smaller block capitals printed vertically on the page, immediately to the left of the larger "380". The second page has the words in block capitals "380 Lonsdale Street", continuing in capitals and lower case "Situated in the absolute heart of the city, 380 Melbourne elevates style, amenity and convenience to luxurious new heights".
There then follows further marketing material - one hesitates to say "flim-flam" - together with artist's impressions of the towers; depictions of the CBD from above, identified by a number key locations and sights; and a schematic map purporting to show 380 Melbourne as being at the heart of these various sights and CBD and inner-suburban features. This schematic map appears to depict the development as fronting Elizabeth Street, which is shown as the "spine" of the area depicted. The development is said to be "a heartbeat from everything Melburnians love about their city". (CB 1374)
At Court Book page 1377 a heading states "A design that stands tall on every level". The text below states, inter alia:

[205]

Court Book page 1382 shows an artist's impression of Timothy Lane. Court Book page 1383 shows an artist's impression of the Little Lonsdale Street frontage. The next section relates to the north tower, and generally the same sort of material that is to be found in the flipboard is contained in the balance of the brochure.
Mr Love's contention, which he pursued in cross-examining the Brady witnesses, was that the reference to the podium "uniting" the development implied that there was permeability or access as between towers. Mr Pethica's evidence, which on this point was no more than an interpretation of the various iterations of the plans and a description of the development as built, indicated that there was no such permeability or cross-access. In my view, it would be going entirely too far to suggest that this phraseology (viz the "podium uniting") carries with it the implication of integrated access. The brochure referred expansively to the various features of the development, and described them as "all complemented by a selection of ground level retail ...". (CB 1369) It would not be supposed, for instance, that there should be an internal mode of access from a residential apartment to a street level retail establishment or vice versa.
The description of the podium "uniting" the development is an accurate architectural observation, but does not carry with it the implications of permeability and access contended for by the plaintiffs. Once again, the address "380 Lonsdale Street" is featured prominently. It was an accurate description of the address of the development at the time, and as such could not be regarded as misleading or deceptive. I do not accept what was implicit in the plaintiffs' case, that there was an implication that this address would persist for every element of the development following its completion.
As to an emphasis on Lonsdale Street - and these observations apply alike to the flipbook - the figure "380" chosen as part of the name for the development overall was likely chosen because of its inclusion of the propitious number "8". It necessarily implies a connection with Lonsdale Street. However, the promotional material in the brochure and the flipbook, like the video, sought to focus attention on what might be described as scenic or "trendy" elements of the Melbourne Central Business District and inner suburbia to the exclusion of the somewhat prosaic Lonsdale Street. Overall, what was being offered was a residence convenient to all of these non-Lonsdale-Street locations. In the sense relevant to this proceeding, the brochure was not misleading or deceptive.
Mr Love also referred to material to be found on Brady's website for the development. Ms Song said:

[210]

Mr Tennant observed that during his evidence-in-chief, Mr Wang said that his presentation to customers in March 2017 was to the effect that the entrance to the residential apartments in the north tower was via a "corner lobby" at the corner of Little Lonsdale Street and Timothy Lane. (T906, L7-26) Mr Tennant said that the propositions at paragraphs 48, 49, 50, 117, 267, 378, 380 and 381 of the plaintiffs' outline of closing submissions were not put to Mr Wang in cross-examination. (T1254, L1-3) I do not recall Mr Love saying anything in contradiction to this.
It follows, in conformity with what was said by the Court of Appeal in Broughton's case, that the weight of Ms Song's evidence as to what she was told about the entrance to apartment 3908 is much diminished.
Mr Love contended that Mr Wang's credit should be regarded as compromised for at least two reasons: first, that he inappropriately suggested that a First Home Owner Grant would be available to Ms Hu as a purchaser (the price of the unit was above the range at which such grants would be available, independent of any other consideration); and secondly, that in seeking means whereby Ms Song could settle the purchase in September 2020, Mr Wang had inappropriately suggested that Ms Song resort to illegal underground bankers. (Closing submissions 377-391) Mr Wang denied that the organisations to which he suggested Ms Song applied were illegal.
As part of his closing submissions, Mr Love handed up what purported to be official decrees from the government of the People's Republic of China, together with a translation, relative to the issue of restrictions on the movement of capital out of the People's Republic. Mr Tennant objected, observing that a very lengthy trial had concluded its evidence and he would have no opportunity to consider the purport of this material or examine or cross-examine any witness as to its operation. In my view, those considerations justify rejection of the late attempt to introduce this material after both parties had closed their cases.
I have already made adverse comment upon the manner in which Ms Song gave her evidence. In contrast, Mr Wang presented in a straightforward manner. Popular opinion in society, however, is that salesmen generally, and salesmen or women of land in particular, have a propensity to tell untruths to achieve sales. Without making any distinct finding relative to Mr Wang in that respect, I believe it appropriate to treat his evidence with some caution, further, because, as previously explained, it was by way of reconstruction as to what he "would have said" rather than what he distinctly remembered having said or not said. Despite these considerations, the matters already referred to relative to Ms Song and the further matters to which I will now refer leave Mr Wang as the more credible witness.
In a broad sense, one possible view of events was that Ms Song failed to complete the purchase of the subject apartment in September 2017 because she had committed her available financial resources to completing the purchase of a South Yarra property. In her evidence-in-chief, Ms Song described the South Yarra property as her purchase. She said she purchased this property in her husband's name with the assistance of a bank loan. It was only in re‑examination that she and Ms Hu said that the purchase was really made by Mr Hu. This revised explanation of what had occurred seemed to be given to rebut any suggestion that Ms Song had deliberately chosen to purchase the South Yarra property in preference to the apartment being sold by Brady.
Mr Love referred to evidence from Ms Hu that the impetus for the purchase came from her father, her mother's estranged husband, "on the occasion of his visit to Australia when she [Ms Hu] graduated from Melbourne University." Ms Hu said that her father contributed 50 percent of the price in cash, with the balance funded by a bank loan. I suggested that the effect of the evidence as to purchase was that Mr Hu was holding as trustee or nominee for Ms Song. (T52, L31-35) Mr Love asked Ms Song:

[218]

Mr Tennant said that since these documents were introduced after the close of the plaintiffs' case, they should be excluded under s135 of the Evidence Act 2008 (Vic) because he had no opportunity to consider or cross-examine upon them, and they were raised and sought to be put in evidence for the first time when they were referred to in final submissions. For reasons which I then gave, I ruled in favour of receipt of this material. Mr Tennant said, in effect, the figures did not "add up". Moreover, he said, the timing of the purchase was not aligned with the date of Ms Hu's graduation, according to the evidence which she had given.
In the end, I find it unnecessary to make a definitive finding as to the circumstances and nature of the purchase of the South Yarra property. It is at best a collateral issue. However, the overall effect of the evidence surveyed is that Ms Song's characterisation of the transaction cannot be uncritically accepted, and, whether the inconsistent accounts of this transaction are referable to an opportunistic desire to provide a narrative which seems supportive of her case followed by a different account where her case seemed more likely to benefit from that different account, on the one hand, or mere confusion, on the other, it means that her evidence must be treated with great caution.
There was extensive cross-examination of Ms Song. Indeed, her cross-examination as to credit was inordinately long. She was taken to several tax returns, and admitted that they did not contain returns of income which she said she had derived from an organisation known as "Little Mandarin" and Ms Dai's firm. A number of payslips suggesting payment of a substantial salary over a lengthy period by Ms Dai's firm, ALAC, were put into evidence. Mr Tennant contended that these payslips should be regarded as bogus. Mr Love said that there were further materials which had been produced as a result of a call made by Mr Tennant which were not put into evidence. He sought to put them into evidence in the course of his closing submissions. Mr Tennant objected, and I did not receive those further materials. According to Mr Love, they would have indicated, by way of bank records, that the salary payments referred to in the payslips had in fact been made.
Mr Tennant also cross-examined Ms Song about loan applications which she had made, and statements in those loan applications which were difficult to square with other documents and facts which she had produced, such as the tax returns, and evidence as to her employment in various places.
Once again, it is unnecessary, and I think inappropriate, for me to seek to make definitive findings as to the truth of all these matters. I am, however, left with a profound sense of unease as to the reliability of Ms Song's evidence.
Putting all those matters together, I believe that despite the scepticism which popular culture attaches to statements by land salesmen, Mr Wang's account carries more credit and should be accepted in preference to Ms Song's evidence.
It follows that in so far as a finding of misleading or deceptive conduct against Brady requires acceptance of Ms Song's account of her dealings with Mr Wang in preference to his, the finding of misleading or deceptive conduct ought not to be made.
Therefore I reject the plaintiffs' case alleging misleading or deceptive conduct on the part of Brady.
Were I wrong in this conclusion, however, and assuming, without deciding, that the allegation of misleading or deceptive conduct has been made good as alleged by the plaintiffs, there is a further reason why they ought not be entitled to the relief which they seek in that regard. Assuming a contravention of the prohibition on misleading or deceptive conduct in s4 of the Australian Consumer Law, the relief which litigants such as the plaintiffs would be entitled to is governed by sections 236 and 243 of the law. Section 236 provides for actions for damages, stating, inter alia:

[223]

Typically, as here, the causal link between the contravention by way of misleading or deceptive conduct and the loss or damage suffered is that the plaintiff or plaintiffs have relied on the misleading or deceptive conduct to their detriment.
Once again assuming, contrary to what I have said already, that Brady has in the relevant sense engaged in misleading or deceptive conduct, in my view for the purposes of establishing the causal link the evidence does not establish that the plaintiffs relied on the misleading or deceptive conduct such that the loss of which they complain can be regarded as "because of" that conduct.
The principal reason why I find that the plaintiffs did not rely upon any representation to the effect that apartment 3908 had, and would continue to have, a Lonsdale Street address, or would be accessed via an entrance in Lonsdale Street, is that the inspections carried out by both in September 2020 must have alerted them to the fact that the apartment had an address of 371 Little Lonsdale Street. Court Book pages 2673 to 2674 depict "the Timothy Lane entrance to the north tower at 380 Melbourne". Mr Pethica said he took those photographs on 31 August 2020. He was able to be definite about the date because it was recorded as part of the data in his telephone. (T1090-1) The photographs appear to have been taken at night. They show an entrance into a foyer with a vacant reception desk shown in the background. There is a large sign above the entrance, "380 Melbourne", and in smaller but block capitals immediately below "371 Little Lonsdale Street". Since both Ms Song and Ms Hu entered the north tower via that entrance, the Little Lonsdale Street address must have been brought home to them. It is displayed prominently. Ms Song said that she was conscious of the importance of the Lonsdale Street address from the very outset; indeed, before she signed the contract. She should therefore have noticed that the address was Little Lonsdale Street, yet there was no complaint as to the address of the apartment made until six or seven months after the September inspections.
Ms Song said that when she entered the north tower via Timothy Lane, she did not see the sign to which I have referred. (T361, L12-21) She said:

[228]

The evidence that the address would not have been noticed by Ms Song is not credible. I have no reason to disbelieve Mr Pethica's evidence that the sign was on display and the entrance fully constructed by the time he took the photographs on 31 August 2020 already referred to.
As to the situation of Ms Hu, Mr Love's contention was that as at the date of the September inspections she was unaware that the address, specifically a Lonsdale Street address, was important, or key, as far as her mother was concerned. The plaintiffs' case is that this was the case. The address was "key" in the sense that had they known the truth that apartment 3908 would have a Little Lonsdale Street address, they would not have entered into the contract.
Ms Hu said that she signed the contract after "we confirmed the details of the address, 380 Lonsdale Street". (T773, L31-32) That is, the address was something that needed to be confirmed before Ms Hu signed the contract. Ms Hu said that she, her mother, and Mr Wang, entered the north tower via Timothy Lane, which she described as a side entrance. (T845, L5-10) She was then shown the photograph of the side entrance taken by Mr Pethica as at 31 August 2020. Ms Hu agreed that this was the entrance which she and her mother used.
I asked why, if the address of the apartment was something very important to Ms Song and something which Ms Hu knew was very important, would she not have spoken up and said "Just a minute. Mum, you're not getting what you thought you were getting." (T846, L21-24) Ms Hu agreed with that, but said she did not notice the sign. Given that Ms Hu made very detailed comments in the inspection report, and a large number of them, she did not casually breeze in and breeze out, the explanation that she did not notice the sign above the entrance lacks credibility.
Mr Love submitted that a careful consideration of Ms Hu's evidence before the exchange just quoted would indicate that it was only later that she became aware that the address of the unit was of key significance to her mother. I am not clear as to whether that was indeed the case. Moreover, it would have been open to Ms Hu to have responded denying that as at September 2020 she was aware of the importance of the address, but she contented herself with saying that she did not see the sign.
In the circumstances, I believe that one way or another, the sign brought home to both Ms Song and Ms Hu the true address of apartment 3908. The fact that they proceeded to enter into extension arrangements, and months later prepared for settlement, indicates to my mind that they did not rely upon the address of the apartment's being 380 Lonsdale Street or an address in Lonsdale Street, and that the reason for their failure to complete the contract lay elsewhere.
Mr Love contended that a finding of "no reliance" could be made only if Brady could establish a reason other than reliance on misleading or deceptive conduct on its part for the failure of the plaintiffs to settle. He relied on a passage which he attributed to the High Court of Australia in its judgment in Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 [159]. (T1352, L31-32) Upon investigation, it appears that the passage relied on by Mr Love is paragraph [159] of the judgment of the Victorian Court of Appeal in Lord Buddha Pty Ltd (in liq) v Harpur [2013] VSCA 101; (2013) 41 VR 159. Paragraph [159] of the judgment of Vickery AJA, with whom Weinberg and Tate JJA concurred, stated inter alia:

[232]

"There is no reason to doubt the correctness of these statements. They accord with sound principle, namely, that a plaintiff carries the burden of establishing every element of his cause of action. At the same time, one can readily understand why it is in cases of deceit that a tribunal whose duty it is to find the facts may require a defendant to make some answer to the case that is put against him. Such cases are of a kind where in the general experience of mankind the facts speak for themselves. Where a plaintiff shows that a defendant has made false statements to him intending thereby to induce him to enter into a contract and those statements are of such a nature as would be likely to provide such inducement and the plaintiff did in fact enter into that contract and thereby suffered damage and nothing more appears, common sense would demand the conclusion that the false representations played at least some part in inducing the plaintiff to enter into the contract. However, it is open to the defendant to obstruct the drawing of that natural inference of fact by showing that there were other relevant circumstances. Examples commonly given of such circumstances are that the plaintiff not only actually knew the true facts but knew them to be the truth or that the plaintiff either by his words or conduct disavowed any reliance on the fraudulent representations. It is entirely accurate to speak of an onus resting on a defendant to draw attention to the presence of circumstances such as those I have described in order to show that the inference of the fact of inducement which would ordinarily be drawn from the fraudulent making of a false statement calculated to induce a person to enter into a contract followed by entry into that contract should not in all the circumstances be drawn. But it is no more than an evidentiary onus - an obligation to point to the existence of circumstances which tend to rebut the inference which would ordinarily be drawn from the primary facts. When all the facts are in, the fact-finding tribunal must determine whether or not it is satisfied on the balance of probabilities that the misrepresentations in question contributed to the plaintiff's entry into the contract. The onus to show that they did is a condition precedent to relief and rests at all times on the plaintiff." ((1985) 157 CLR 215, 238-9)

[233]

As his Honour explains, the so-called "evidentiary burden" is merely to draw attention to facts providing an alternate explanation, and, with those facts before the Court, the onus, as his Honour says, "rests at all times on the plaintiff"; viz, in this case Ms Song and Ms Hu.
In so far as Mr Love's case seeks to impose a burden of proof in this regard on Brady, it must be rejected.
The interpretation of events generally advocated by Brady was that late reliance, near midnight on the eve of scheduled settlement, upon the address issue, was a mere pretext, and the real reason for the plaintiffs' failure to settle was either a lack of funds or repentance from the purchase because of the drop in value of the unit. The two considerations are not necessarily mutually exclusive. In a hypothetical case, a purchaser faced with settlement but embarrassed by lack of funds may be willing or motivated to take extraordinary measures to arrange funds, in the knowledge that the asset being purchased is worth more than is being paid for it. Conversely, a purchaser faced with settlement but embarrassed by a lack of funds may elect to default if he or she knows the asset being purchased is worth less than is being paid for it.
In the present case, Mr Tennant relied on the printout from the PEXA system showing a deficiency in funds available to settle the purchase, the page being printed out as at the day of the planned settlement. Mr Tennant put to Ms Dai that this printout indicated that the plaintiffs were deficient in funds to settle on 21 April 2021. Her response is quoted at [110] above. I do not find it entirely intelligible.
Mr Love said that the contract for the sale of apartment 3908, contrary to usual conveyancing practice, provided for the adjustment statement to be prepared by the vendor, Brady, rather than the purchaser, Ms Hu, or her nominee, her mother, Ms Song. (Special condition 42, CB 3718-3720) Mr Love said that, in the event, Brady was in default in having failed to provide a statement of adjustments. (Closing submissions, paragraphs 315-6) He said since no statement of adjustments had been prepared, it was "not possible to put a figure on what additional funds may have been required to complete settlement". (Ibid, paragraph 218) He referred to Ms Dai's evidence that she had sold one of her properties with settlement effected 12 February 2021 and stood ready to "bail out" Ms Song if she needed extra funds to complete the purchase of apartment 3908. (Ibid, paragraphs 322-3, T544) Mr Love said that Ms Dai had made her own funds available on 16 April 2021 and they could have been resorted to if needed. (CB 4424-4436) These latter documents were the ones introduced late and objected to by Mr Tennant. I ultimately ruled that they should be admitted. They show a property at 48 Windella Avenue, Kew East, in a marketing pamphlet sponsored by estate agent Nelson Alexander. (CB 4424-5)
Court Book page4426 is an email from Ms Dai to National Australia Bank seeking a discharge of a registered mortgage, and stating that "The property" - presumably the Windella Avenue, Kew East property - "was sold by auction on 12 February 2020, and the agreed settlement date is 12 Feb 2021".
Court Book page 4427 is a heavily-redacted extract from an account held at Westpac Banking Corporation by a company Daiking Nominees Pty Ltd. The statement shows a credit of $460,881.68 with a descriptor indicating that it arose from a PEXA transaction, together with a deposit via the Fitzroy branch with the descriptor "48 Windella Avenue", $103,731.50.
The next page (CB 4428) appears to be a set of calculations in handwriting dated 19 April 2021 relative to settlement showing an amount payable, one infers, for apartment 3908, balance of $679,650, with a loan $580,000 - Song. This document would appear to be part of the purchase file for apartment 3908.
Next, at pages 4430-4431, are documents identifying Ms Song, presumably required as part of the PEXA process, and a file note from ALAC relative to "verification", referring to passport, driver's licence and so forth at Court Book page 4432. Further verification material appears at pages 4433-4.
Court Book page 4435 is a further statement page relative to the same account of Daiking Nominees Pty Ltd, showing the same credits and a balance as at 12 February 2021 of $564,682.99. Once again, this page is redacted by a process of masking during photocopying, rather than obliteration by dark writing as on the previous page. Page 4436 is the next page of the statement, showing a balance as at 21 May 2021 of $5,006.19. $360,000 is shown as having been withdrawn on that day, with the descriptor "Tfr Classic Plu payback".
Mr Tennant's contention was that whilst these documents demonstrate an inflow of funds to the account of Daiking Nominees Pty Ltd, which one might infer is a company controlled by Ms Dai (though there was no evidence as to this), the inference would be based solely on the similarity of names. There was no evidence that these funds should be treated as available for the settlement. He said page 4436 seems to show these funds as having been largely used in a series of payments. In addition to the ones already referred to, on 16 April 2021 there was a payment to "Xiao-Xiao Kingham Xiao-Xiao Kingham" of $1,560.00, a mobile withdrawal "Tfr Classic Plu" of $300.00, and an online withdrawal "Bpay RACV - Mel Racv" of $218.00. Mr Tennant's contention was that I should infer that these funds were committed to some other obligation comprised by the word "payback" and were not available to settle the apartment purchase. These documents could have been included in the original Court Book, and could have been explained by evidence from Ms Dai. He contended that the failure to do so must redound to the disadvantage of the plaintiffs.
Mr Tennant also drew attention to the fact that according to Ms Dai the sale of the property which was to generate funds in support of Ms Song's purchase obligations was made "around 10 December", viz 2020. (T544, L23) This was inconsistent with the documents which appeared to pertain to a sale in February 2020, and no explanation of the inconsistency had been furnished.
Like so much relative to financial transactions in the plaintiffs' camp, obscurity and uncertainty reigns. The late and unusual circumstances in which the documents relative to the availability of funds were put before the Court, and the unavailability in light of that lateness of any explanation and verification of the purport of some of the descriptors, leads me to reject them as establishing that Ms Song had funds available to settle on 21 April 2021. The funds from Daiking Nominees had not been put into the PEXA system, and the reference to "payback" in the bank record tends to suggest they were not available.
In the circumstances, and particularly having regard to the finding that as at September 2020 the plaintiffs knew that apartment 3908 had a Little Lonsdale Street address, I conclude that even if, contrary to my earlier conclusions, Brady had engaged in misleading or deceptive conduct relative to the sale of apartment 3908, it was not causative of loss or damage to the plaintiffs because of lack of reliance on that.

[261]

In accordance with valuation evidence given by Mr Brown, the property, which had a purchase price of $849,600, was as at 11 June 2021 valued at $730,000. This represents a loss in value of some $119,600 which, either in terms of the default provisions of the contract, if they apply, or perhaps more appropriately, the general law damages applicable in the case of acceptance and repudiation, would be recoverable. There was also a claim for resale costs constituted by agent's commission, $64,240; an incentive bonus of $16,500; estimated advertising costs, $3,650; and conveyancing costs, $1,650, making a total of $86,040. The effect of the evidence of Messrs Wang and Pethica is the very high commission rates seemed to have been paid relative to the sale of these CBD units. In the absence of any attack on these figures, I propose adopting them, likewise holding costs constituted by land tax, council rates, water rates, owners' corporation, insurance, fees and so forth of $19,538.28. Plainly, those holding costs should not have been incurred and settlement proceeded, as originally scheduled, in September 2020.
There was also a claim for interest under the default provisions in the contract until the termination of the contract on 21 June 2021. Without going into too much detail, in the famous case of McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457 in what proved to be a seminal analysis, Dixon J, as he then was, held that upon termination of a contract prospectively, as distinct from its rescission ab initio, rights accrued unconditionally prior to termination remain enforceable. Those which have, however, accrued only conditionally do not survive. In McDonald's case, the contract terminated, or "rescinded" in the loose sense, was a terms Contract of Sale. The High Court held that the instalments of purchase price overdue at the time of termination were payable only conditionally upon a conveyance of the land ultimately being made. Once the contract was terminated, no such conveyance would occur and therefore the right was not regarded as accrued. I dealt with this matter in some detail in my decision of Bill v Clarke [2015] VCC 1721. According to that decision, no such award of interest as is claimed here should be made. If the principal on which it was calculated was not payable by reason of the termination of the contract, how could the interest be? This reasoning did not commend itself to Judge Woodward in Bensons Property Group Pty Ltd v Manderson and Tan (No 3) [2021] VCC 326. Mr Tennant referred to the decision of Ginnane J in Ironbridge Holdings Pty Ltd (administrators appointed) (receivers and managers appointed) v O'Grady [2020] VSC 344. At 374, in analogous circumstances, his Honour held that Mrs O'Grady was entitled "to recover interest as an accrued debt. She does not have to establish damages. Debt is a separate cause of action." The claim, which was unsuccessful in McDonald v Dennys Lascelles Ltd, was a claim in debt; namely, a claim for the overdue instalment of the purchase price. I remain respectfully unpersuaded that, as a matter of principle, the award of interest sought by the plaintiff should be made. However, since other judges of this Court and a judge of the Trial Division of the Supreme Court have taken the opposite approach, I propose following their lead and awarding the interest, despite the view which I continue to hold that no such award ought be made.
Brady seeks an award of interest from the commencement of the proceeding until the date of judgment under s60 of the Supreme Court Act 1986 (Vic). There seems to be no reason why such an award ought not be made. The period from the termination of the contract, when its default provisions ceased to apply prospectively and the commencement of the proceeding were problematic, Brady sought damages at the rate of 5 percent per annum reflective of its holding costs under the relevant mortgage. (T1232) I asked which head of contractual damages this was to be regarded as being under, namely, general damages representing the ordinary consequences of the breach or special damages representing additional matters which were shown to have been in the joint contemplation of the parties. Mr Tennant did not give a definitive answer. With some hesitation, I conclude that an accrual of interest under financing arrangements must be seen as one of the ordinary consequences of the delay of settlement or the repudiation of an "off the plan" unit purchase. Damages relative to such a rate of interest should therefore be recoverable as general damages under contractual principles. 5 percent is not such a rate of interest as to be beyond what might be regarded as the ordinary consequences of a default. There should be judgment for Brady on its counterclaim for all these sums of money.
Mr Tennant, in his calculations, rightly allowed a credit in favour of the plaintiffs for the moneys held in trust by his instructors, the defendant's solicitors. This credit extended to the illegal "second deposit". Accordingly, the entitlement of the plaintiffs to recover this "second deposit" by virtue of the provisions of the Sale of Land Act 1962 (Vic) does not affect the net outcome of the proceeding.

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Judgment (263 paragraphs)

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Cases Cited (14)